The Americans with Disabilities Act (ADA) is a revolutionary piece of legislation designed to protect the civil rights of people who have physical and mental disabilities, in a manner similar to that in which previous civil rights laws have protected people of various races, religions, and ethnic backgrounds. The ADA mandates changes in the way that both private businesses and the government conduct business to ensure that all Americans have full access to and can fully participate in every aspect of society. The ADA requires the removal of barriers that deny individuals with disabilities equal opportunity and access to jobs, public accommodations, government services, public transportation, and telecommunications. The law applies to small companies as well as to large ones, so small business owners must be aware of its provisions and how they affect their companies'employment practices, facilities, and products. The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing the various aspects of the ADA.
It is estimated that 43 million Americans, or one out of every five, have a disability. As defined in the ADA, the term "disability" applies to three categories of individuals: 1) people who have a physical or mental impairment that substantially limits one or more major life activities; 2) people who have a record of an impairment which substantially limits major life activities; and 3) people who may be regarded by others as having such an impairment. For an employee or job applicant to be protected by the ADA, an individual must be "disabled" in or more of the above manners, be "otherwise qualified" for the position, and be able to perform the essential functions of the job, "with or without accommodation."
PROVISIONS OF THE ADA
President George H. Bush signed the ADA into law on July 26, 1990. The legal structure of the ADA is based on the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. The ADA uses concepts of disability, accessibility, and employment which were introduced in the Architectural Barriers Act of 1968 and the Rehabilitation Act of 1973. These two federal laws were the predecessors of the ADA that mandated a level of accessibility in federally funded buildings and programs. The ADA expanded the requirements of accessibility to the new and existing facilities of privately funded companies for the first time.
The ADA consists of five separate parts or titles: Title I relates to employment; Title II concerns public services; Title III pertains to public accommodations and commercial facilities; Title IV refers to telecommunications; and Title V covers miscellaneous other items.
Title I of the ADA prohibits discrimination in employment against qualified individuals with disabilities. For companies with 25 or more employees, the requirements became effective on July 26, 1992. For employers with between 15 and 24 workers, the requirements became effective on July 26, 1994.
Title II of the ADA prohibits discrimination in programs, services, or activities of public entities (state and local governments), including public transportation operated by public entities. The provisions of Title II which do not involve public transportation became effective on January 26, 1992.
Title III, pertaining to public accommodations and commercial facilities, requires that private businesses that are places of "public accommodation"—including restaurants, health clubs, department stores, convenience stores and specialty shops, and hotels and motels—allow individuals with disabilities to participate equally in the goods and services that they offer. This title also requires that all future construction of commercial facilities—including office buildings, factories, and warehouses—and places of public accommodation be constructed so that the building is accessible to individuals with disabilities.
Title III also mandates modifications in policies, practices, and procedures. Commercial businesses and places of public accomodation are required to provide auxiliary aids and services, and to make accessible transportation available when transportation services are offered. In addition, companies are required to remove architectural and communications barriers and to comply with ADA in any ongoing or new construction. The Act stipulates that all fixed-route or on-demand transportation services—such as hotel-to-airport and other shuttle services—be accessible to persons in wheelchairs and other disabled individuals.
Title IV of the ADA requires telephone companies to make relay services available for persons with hearing and speech impairments.
Title V ties the ADA to the Civil Rights Act of 1974 and its amendments. It includes a variety of miscellaneous legal and technical provisions, including one that stipulates that the ADA does not override or limit the remedies, rights, or procedures of any federal, state, or local law which provides greater or equal protection for the rights of individuals with disabilities.
The ADA draws an important distinction between the terms "reasonable accommodations" and "readily achievable." For small businesses and other employers, no modifications to their facilities must be undertaken to fulfill the requirements of the ADA until a qualified individual with a disability has been hired. At that point, "reasonable accommodations" must be made unless they impose a significant difficulty or expense. In contrast, the terminology "readily achievable" refers to business obligations to clients or guests and applies to actions that can be accomplished without much difficulty or expense. "Readily achievable" modifications must be made in anticipation of a disabled guest's or client's needs, before they ever arrive on the premises.
Compliance with the various provisions of the Americans with Disabilities Act also lies with both landlord and tenant, so either or both party may be held legally liable for violations of the ADA. Assignation of ADA responsibilities is generally made via the lease agreement. Small business owners who lease their office space or other place of business, then, should examine these agreements closely.
THE ADA AND THE MENTALLY DISABLED
The fastest-growing area of legal activity relating to the Americans with Disabilities Act concerns mentally disabled employees. Claims that businesses failed to accommodate their employees'psychological problems according to the provisions of the ADA nearly doubled between 1998 and 1999 alone, and they account for 15-20 percent of all ADA claims received by the Equal Employment Opportunity Commission. This percentage may grow even larger in future years. Under the original language of the ADA, the Act applied a higher standard for legal redress to individuals whose disabilities stemmed from "any mental or psychological disorder." But legislative efforts to eliminate this higher standard have intensified in recent years.
Problems associated with mentally disabled employees may include workplace socialization difficulties, limited stamina, irregular attendance, difficulty dealing with stress or criticism, and limited attention spans. But many experts in both the mental health and business fields insist that the mentally disabled can be valuable additions to the workforce if companies provide appropriate accommodations.
One valuable tool that business owners and managers can utilize in establishing and maintaining a productive work environment for mentally disabled employees is the EEOC Enforcement Guidance, a comprehensive legal guidebook issued in 1997. As Business Horizons points out, the Guidance stipulates that "traits or behaviors are not, in themselves, mental impairments. This means that stress does not automatically indicate a mental impairment, although it may be a symptom. Similarly, such traits as irritability, chronic lateness, and poor judgement are not, in themselves, mental impairments, although they may be linked to them." Legitimate mental disabilities do, however, include major depression, bipolar disorder, various anxiety disorders, schizophrenia, mental retardation, and special learning disorders.
Under the ADA, companies employing mentally disabled individuals are not responsible for every aspect of the employees'behavior. For instance, they are not required to relieve employees of work responsibilities or excuse them from violations of established work policies. Nor are they required to employ workers who are deemed a safety threat. Moreover, employers are not legally responsibile for mental disabilities of which they are unaware.
But employers are required under ADA law to make "reasonable accommodations" for mentally disabled employees. These may include leaves of absence; minor modifications in work policy, supervision, or job position; or flexible work schedules. "Although the nature or form of accommodation is up to the employer, and is only 'reasonable'if it helps the employee do a better job, in some instances the employer might wish to consider professional assistance in the communication process," wrote Robert Schwartz, Frederick Post, and Jack Simonetti in Business Horizons. "Managers should also verify that the condition qualifies as a psychiatric disability and whether the person can perform the job's essential functions with or without accommodation. Management can request reasonable documentation from a health care professional about the disability and the need for accommodations."
Compliance with the ADA's mental disability provisions can help companies retain productive employees and protect themselves from legal peril. But "even beyond mere compliance, socially responsible businesses may elect to embrace these legal mandates as changes that advance the common good of society," noted Schwartz, Post, and Simonetti. "By doing so, they would be helping millions of mentally ill citizens become gainfully employed and saving society billions of government dollars spent supporting the presently unemployed mentally ill."
THE ADA IN PRACTICE
Since the Americans with Disabilities Act was signed into law in 1990, its provisions, enforcement measures, and effectiveness have all come under scrutiny. Supporters have credited the ADA with improving the quality of life of millions of disabled citizens and opening new economic opportunities for disabled workers across the nation. In addition, C.C. Sullivan noted in Building Design and Construction that "the landmark civil rights law changed the way U.S. businesses and institutions understand the rights and abilities of disabled citizens." But Sullivan also voiced a common lament among business owners and managers that "the ADA's open-ended, murky language has been a decade-long minefield of confusion and litigation." Indeed, even supporters of the Act admit that efforts to clarify various provisions of the ADA—now underway—are needed to reduce litigation.
Critics of the ADA—in its current incarnation at least—also note that employment among people with disabilities was lower in the late 1990s, a period of great economic expansion in the United States, than it was when it was passed in 1990. In early 2000 the unemployment rate among disabled Americans stood at approximately 30 percent, more than six times higher than the nation's overall unemployment rate.
Some observers attribute these statistics, however, to lax ADA compliance and enforcements efforts by federal agencies charged with seeing that the Act's provisions are carried out. In 2000, for instance, the federal National Council on Disability (NCD) issued a report claiming that this alleged poor performance could be traced to inadequate funding of the agencies in question and an "over-cautious" approach on the part of their investigating arms.