TABLE OF CONTENTS
State of California - Health and Welfare
DEPARTMENT OF REHABILITATION
830 K Street Mall
P.O. Box 944222
Sacramento, CA 94244-2220
The Americans with Disabilities Act (ADA) provides civil rights protection for persons with disabilities that are parallel to those that have been established by the Federal government for women and minorities. The ADA is truly a landmark civil rights law. It opens all aspects of American life to individuals with disabilities. The passage of the ADA was a major victory in the long struggle for the equal rights of people with disabilities, but it is just a beginning. The Department of Rehabilitation, working together in a strong and productive relationship with businesses, state and local governments, and the disability community, is committed to championing people's abilities rather that their disabilities.
I am proud to have served on the National Council on Disability in 1986, when we first recommended enactment of a comprehensive law requiring equal opportunity for individuals with disabilities and then Vice President George Bush endorsed the ADA and became its chief advocate. The ADA became law on July 26, 1990, when it was signed by President Bush, on the South Lawn of the White House, in front of almost 3,000 persons, which represented only a small percentage of those who had worked for years for its passage.
Governor Pete Wilson was an early cosponsor and strong supporter of the ADA as a U.S. Senator. As Governor, his support continues and he has indicated that he wants California to be a national leader in the implementation of the ADA. To achieve this, the Governor has designated the Department of Rehabilitation as the lead State Agency to coordinate implementation of the ADA. This is an appropriate role for the Department because of its long commitment to working with and serving the disability and business communities.
The Department has already begun its work for the full implementation of the ADA by establishing an ADA Implementation Unit to provide training, consultation and technical assistance for businesses, employers, employees and job applicants, and consumers of public and private services.
We are in a perfect position to assist businesses and individuals in understanding the ADA and to work with state and local government entities to ensure equal access to services and programs.
Many business and public agencies have already established a good record of employing persons with disabilities; yet, much work remains to be done. With over four million individuals with disabilities in California, an estimated two-thirds of the disability population are not working, though a majority indicate they want to work. Promoting the development and availability of assistive technology and putting people with disabilities to work is good for both individuals with disabilities and the State's economy. Only if we all work together can we ensure that the promises made by the ADA become a reality.
I am committed to using all the tools and resources available in a positive, focused and cooperative fashion to increase the acceptance, dignity and full participation of all persons with disabilities into a society where people learn, work and live together.
THE AMERICANS WITH DISABILITIES ACT: AN OVERVIEW
The Americans with Disabilities Act (ADA) guarantees equal opportunity for individuals with disabilities in public and private sector services and employment. Generally, the ADA bans discrimination on the basis of disability.
A comprehensive anti-discrimination law for persons with disabilities, the ADA extends to virtually all sectors of society and every aspect of daily living -- work, leisure, travel, communications, and more. It provides basic civil rights protection to persons with disabilities comparable to those in force for women and ethnic minorities for the past 25 years. The ADA is expected to benefit an estimated 49 million Americans, including nearly 4.5 million Californians, with some 900 known disabilities.
The ADA is built on a foundation of statutory, legal and programmatic experience. A comprehensive civil rights act for people with disabilities, the ADA was modeled after the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. Practical experience, regulatory interpretations and case law developed over the past two decades were built into the foundation of the ADA.
Signed into law by President Bush on July 26, 1990, the specific requirements of the ADA are phased in through 2010.
Although there may be a particular interest in one certain ADA title, it is important to be familiar with all of the titles. The following is a brief summary of the five titles of the ADA.
TITLE I: EMPLOYMENT
Employers must ensure their employment practices do not discriminate against qualified persons with disabilities in the application and recruitment processes, hiring, advancement, training, compensation or discharge of an employee, or in any other terms, conditions and privileges of employment. Under the law, employers must not refuse employment to a qualified person with a disability based on that person's disability, who, with or without reasonable accommodations, can perform the essential functions of the job. Reasonable accommodation need not be required if it creates an undue hardship to the employer.
Title I became effective on July 26, 1992, for employers of 25 or more employees and as of July 1994 will affect smaller employers, those with 15 to 25 employees. Compliance is regulated by the U. S. Equal Employment Opportunity Commission (EEOC).
Under California, the Fair Employment and Housing Act has prohibited discrimination in employment based on "physical handicap" for employers which employ five or more employees. No similar protection existed for individuals with mental or development disabilities in state law.
TITLE II: PUBLIC SECTOR SERVICES
Title II prohibits state and local governments from discriminating against persons with disabilities or from excluding participation or denying benefits of programs, services or activities to persons with disabilities. Public sector entities should have completed a Transition Plan for barrier removal to guarantee program access by July 26, 1992, and must complete full Self-Evaluations of all policies and practices by January 26, 1993.
Beginning January 26, 1992, Title II prohibited all public agencies, regardless of the size of their work force, from discriminating in their employment practices against qualified individuals with disabilities. Refer to the Title II summary in this document for additional information on which employment non-discrimination standards apply (Section 504 of the Rehabilitation Act of 1973, or Title I of the ADA). Regulation of all aspects of public sector compliance, programmatic and employment, rests with the U.S. Department of Justice.
Title II also covers transportation services by requiring that all private and public transportation systems be accessible to all people, including individuals with disabilities. All new buses, rail and subway cars (one car per train) are required to be accessible including lifts for people who use wheelchairs. Retrofitting of existing buses is not required.
While some of these provisions took effect immediately, most are phased in through 1996. Regulation of the transportation provisions falls under the jurisdiction of the U.S. Department of Transportation.
TITLE III: PRIVATE SECTOR SERVICES
Title III requires places of public accommodation to be accessible to and usable by people with disabilities. Private businesses must not discriminate in the "goods, services, facilities, procedures, and privileges, advantages and accommodations" offered to the public. Places of public accommodation include motels, restaurants, bars, movie theaters, convention centers, grocery stores, clothing stores, malls, museums, libraries, gyms, bowling alleys, amusement parks, or just about any other facility commonly used by the general public.
Alterations which are "readily achievable" must be made to existing buildings, and new construction must be barrier free. Reasonable modifications must be made to policies and auxiliary aids provided so long as they do not create an undue burden on the business or fundamentally alter the nature of the goods and services provided. Businesses cannot discriminate by excluding people with disabilities, by treating them separately or by requiring them to participate in separate programs.
- The effective date for Title III was January 26, 1992.
Businesses have on-going responsibilities to make "readily achievable" modifications to their facilities. Beginning July 26, 1992, lawsuits could be filed against businesses with twenty-five or fewer employees and revenue of $1 million or less.
After January 26, 1993, lawsuits could be filed against businesses with ten or fewer employees and revenue of $500,000 or less. Regulation of all aspects of public accommodations compliance rests with the U.S. Department of Justice.
TITLE IV: TELECOMMUNICATIONS
The ADA requires common carriers offering telephone services to the general public to increase the availability of interstate and intrastate telecommunications relay services to individuals with hearing and speech impairments. All common carriers of telephone services must offer non-voice relay services which interface with voice services. Compliance rests with the Federal Communications Commission.
- The effective date for Title IV is July 26, 1993.
TITLE V: MISCELLANEOUS PROVISIONS
Title V contains several miscellaneous provisions such as:
1. The ADA cannot be construed to apply a lesser standard of compliance than does the Rehabilitation Act of 1973.
2. The ADA does not limit or invalidate any other federal or state law which provides equal or greater protection.
3. The ADA does not affect smoking restrictions, OSHA requirements or employee drug testing programs.
4. The ADA does not affect current state laws and policies governing insurance, or limit valid underwriting procedures based on risk classification.
5. Title V explicitly prohibits coercion, intimidation, or threats against persons exercising their rights under the ADA.
6. Title V establishes specific responsibilities for the adoption of regulations by federal agencies as well as technical assistance.
7. Title V excludes from protection those conditions which are related solely to sexual identity, but not disability.
8. Title V also excludes from coverage active drug users but prohibits discrimination against those who are perceived as having a disability by reason of a drug history, have participated in a supervised drug rehabilitation program, or are erroneously regarded as engaging in such use.
Although Title V is a miscellaneous Title, the primary responsible department is the U.S. Department of Justice. To formally file a complaint or to obtain further information, please contact:
U. S. Department of Justice, Civil Rights
Office on the Americans With Disabilities Act
P.O. Box 66118
Washington DC 20035-6118
(800) 514-0383 TTY
(202) 514-6193 Electronic Bulletin Board
The nation's goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for persons with disabilities. The purpose of the ADA is to provide a clear and comprehensive national mandate for the attainment of these goals.
TIMELINES FOR IMPLEMENTATION
TITLE I: EMPLOYMENT
July 26, 1992, Employers of 25 or more employees.
July 26, 1994, Employers of 15 or more employees.
TITLE II: PUBLIC SECTOR
August 26, 1990, Purchase public or lease of new buses, intercity/over-the-road buses, or rail cars for fixed route or intercity rail.
January 26, 1992, State and local government and public transportation.
July 26, 1992, Transition Plans completed.
January 26, 1993, Self-Evaluation completed.
January 26, 1995, Structural changes required in Transition Plan to be completed.
TITLE III: PRIVATE SECTOR
January 26, 1992, Provide readily achievable access.
January 26, 1992, Remodels to be accessible.
January 26, 1993, New facilities occupied by this date must be accessible.
July 26, 1993, Key stations in light, rapid, and commuter rail systems to be accessible. However, rail operators may request an extension: light and rapid rail stations can be up to July 2020; commuter rail stations can be extended to July 2010.
July 26, 1996, Large providers are required to have new intercity/over-the-road vehicles accessible.
July 26, 1997, Small providers are required to have new intercity/over-the-road vehicles accessible. (Possibility of one year extension by the President)
TITLE IV: COMMUNICATIONS
July 26, 1993 Telecommunications Relay Services: Required to operate 24 hours a day.
Enforcement dates are MISCELLANEOUS determined within corresponding sections of Titles I through III
DEFINITION OF A DISABILITY UNDER THE AMERICANS WITH DISABILITIES ACT
Under the Americans with Disabilities Act, a person with a disability is someone who has:
1. A physical or mental impairment that substantially limits one or more of the major life activities; or
2. A record of such an impairment; or
3. Is regarded as having such an impairment.
The U.S. Department of Justice regulations, as well as legislative history, note that "impairment means any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine. Impairment also means "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. " Disability includes such conditions, diseases and infections as "orthopedic, visual, speech and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; tuberculosis; drug addiction and alcoholism."
An impairment is a "disability" under the ADA only if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.
The following factors should be considered in determining whether an individual is substantially limited in a major life activity:
1. The nature and severity of the impairment;
2. The duration or expected duration of the impairment;
3. The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Major life activities as found in Section 504 of the Rehabilitation Act are defined as those basic activities that the average person in the general population can perform with little or no difficulty. This includes caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This may also include, but is not limited to, sitting, standing, lifting, and reaching.
An individual or entity may not discriminate against an individual or entity because of the known disability of a person with whom an individual or entity is known to have a relationship or association.
Exceptions to the definitions of "disability" and "qualified individual with a disability" include individuals currently engaging in the illegal use of drugs, and physical characteristics such as eye or hair color or environmental, cultural and economic disadvantages. For example, "age is not a disability, nor is homosexuality," according to a key Congressional committee report. The ADA also states that the term "disability" does not include the following sexual and behavioral conditions:
Under Title I of the Americans with Disabilities Act (ADA), employers must ensure that their employment practices do not discriminate against qualified persons with disabilities in the application and recruitment processes, hiring, advancement, training, compensation or discharge of an employee, or in any other terms, conditions and privileges of employment. Also, employers must not refuse employment to a qualified person with disability, who, with or without reasonable accommodation, can perform the essential functions of the job. Reasonable accommodation may not be required if it creates an undue hardship for the employer.
The employment provisions of the ADA became effective July 26, 1992, for businesses that employ 25 or more persons; as of July 1994, Title I employment provisions cover businesses that employ 15 or more persons. This is an anti-discrimination law, not an affirmative action statute.
Employers may be discriminating if they:
To be protected by the ADA, a person must be an individual with disability, and be qualified to perform the "essential functions" of the job.
The first step in determining whether an individual with a disability is qualified, is to determine whether the individual satisfies the necessary skill, experience, education and other requirements of job. An employer is not required to hire or retain an individual who is not qualified, but must be certain the requirements are job related.
ESSENTIAL JOB FUNCTIONS
The term essential function means the basic duties of the position the individual with a disability holds or desires. The term "essential function" does not include the marginal functions of the position. The ADA regulations state that a function may be essential because:
1. The position exists to perform the function;
2. A limited number of employees are available to perform the function; and/or
3. The function is highly specialized and the person in the position is hired for his/her expertise.
Essential functions are the basic job duties an employee must be able to perform, with or without reasonable accommodation. Jobs should be examined to determine which functions or tasks are essential and which are marginal or non-essential.
An employer's judgement on identifying essential functions, and written job descriptions before advertising or interviewing for a job, the amount of time spent performing the function, the consequences of not requiring a person in this job to perform a function, the terms of a collective bargaining agreement, work experience of people who have performed a job in the past, work experience of people who currently perform similar jobs, and other relevant factors will be considered by the EEOC as evidence in determining whether a function is essential during a possible discrimination complaint investigation. However, the ADA does not require an employer to conduct a job analysis or even have a job description.
An employer must provide reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, unless providing the accommodation would be an undue hardship. Failure to do so may be considered an unlawful act of discrimination.
Generally, the individual with a disability will request a reasonable accommodation. Each request should be considered on a case by case basis.
An individual has the right to refuse an accommodation and an employer should be cautious not to force an unwanted accommodation on an employee. However, the individual can be held to the same performance standards as non-disabled employees.
Reasonable accommodation is a modification or adjustment:
1. To the application process.
2. To the work environment or the circumstances under which the position held or desired is customarily performed.
3. Which enables individuals with disabilities to enjoy equal benefits and privileges of employment.
Examples of reasonable accommodation include, but are not limited to:
Reasonable accommodation can be viewed as a logical extension to the kind of accommodations that employers have been providing years; updated equipment, coffee breaks, flexible working hours all to enhance productivity of their workers. Many employers view accommodations as similar to providing workers with better tools or equipment in order to improve efficiency.
An employer is not required to accommodate individuals with disabilities if doing so creates an undue hardship on the employer. An accommodation may be an undue hardship when it requires "significant difficulty or expense" to implement.
The concept of undue hardship includes any action that is unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature or operation of the business. Among the factors to be considered in determining whether an accommodation is an undue hardship are the:
1. The nature and net cost of the accommodation needed, considering tax incentives.
2. The number of persons employed by the employer and the overall size of the organization.
3. Financial resources of the employer.
4. The structure of the employer's operation.
5. The impact of the accommodation on the operation of the facility.
If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. If cost causes the undue hardship, the employer must also consider whether funding for an accommodation is available from an outside source, such as local service organizations, the Department of Rehabilitation, and the Public Utilities Commission. Sometimes the cost of providing the accommodation can be offset by state or federal tax credits or deductions. The employer must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.
An employer may require that an individual not pose a direct threat to themselves or others. Direct threat is defined as a significant risk of substantial harm to the health and safety to the employer or others that cannot be significantly reduced by reasonable accommodation.
MEDICAL EXAMINATIONS AND INQUIRIES
An employer may not ask applicants for employment whether they have a disability or inquire into the nature or severity of their disability. Applicants may be asked about their ability to perform job-related functions.
An example would be if an employer asked the applicant who had one arm, to demonstrate or explain how, with or without reasonable accommodation, she would be able to type memos and letters on the word processor.
The employer cannot ask how the applicant lost the arm or whether the loss of the arm is indicative of an underlying impairment.
When an applicant has volunteered information about a disability; the interviewer may not ask questions about:
The interviewer may describe or demonstrate specific functions and tasks of the job and ask whether an applicant can perform these functions with or without a reasonable accommodation.
Additionally, an employer may not ask whether an applicant has a workers' compensation claim history. Such inquiries are clearly considered illegal under the ADA prior to an offer of employment It would also be considered discriminatory for an employer to refuse to hire an applicant based on a fear that workers' compensation premiums or other insurance rates would increase.
Employers may conduct physical examinations of applicants for employment only after an offer of employment has been made and the offer of employment may be conditioned on the results of the examination only if all entering employees are subject to the same examination and the examination is job-related.
The ADA requires that the results of any medical examination be kept separate from other personnel records, and be kept as confidential records. There are some exceptions to the confidentiality provisions. Managers and supervisors may obtain access to information about necessary restrictions on the work or duties of an employee and necessary accommodations. First aid and safety personnel may also be informed if the disability might require emergency treatment. Finally, upon request, government officials investigating compliance with the ADA must be provided with relevant information.
Employers may not ask a current employee whether he or she has a disability or inquire into the nature or severity of an employee's disability unless that inquiry is shown to be job-related and consistent with business necessity.
Information obtained through such questioning must be kept confidential.
An employer may conduct physical examinations of current employees only when those examinations are job-related and consistent with business necessity. All medical records must be kept confidential and must not be kept in the personnel file.
Drug tests for illegal substance abuse are not medical examinations under the ADA and are permitted.
In other words, all inquiries and medical examinations must be job-related and consistent with business necessity providing full and equal treatment. An employer may ask questions on application forms or during an interview to determine whether an applicant can perform a specific job that focuses on the ability
COMPLAINTS AND ENFORCEMENT
Employers must post notices which are accessible to all employees and applicants describing the applicable provisions of the ADA. The employment provisions of the Act are enforced through the same procedures used to enforce Title VII of the Civil Rights Act of 1964, as amended in 1991. Complainants must file a charge with the Equal Employment Opportunity Commission (EEOC), or a state agency charged by the EEOC with accepting complaints. Charges of discrimination on the basis of disability must be filed with the EEOC within 180 days of the alleged discriminatory act. The complainant may request a right-to-sue notice from the EEO which gives the complainant the right to file a lawsuit in federal court. Alternatively, the complainant may wait for the EE OC to investigate the case and decide whether it will sue on behalf of the individual. To formally submit a complaint or to obtain further information contact:
U. S. Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington DC 20507
(800) 800-3302 TTY
Generally, the ADA bans discrimination on the basis of disability in employment, in both public and private sectors.
THE PUBLIC SECTOR
In January of 1992, Title II of the Americans With Disabilities Act (ADA) took effect. This title prohibits all state and local governmental agencies from discriminating against persons with disabilities and from excluding participation in or denying benefits of programs, services or activities to persons with disabilities. Title H specifies that a public agency may not, directly or through contractual arrangements:
1. Deny opportunities to persons with disabilities to participate in or benefit from any aid, benefit or service.
2. Deny persons with disabilities the opportunity to participate as members of planning or advisory boards.
3. Deny persons with disabilities the opportunity to participate in programs, services or activities that are separate or different from those offered others, even if the agency offers permissibly separate or different activities; and/or
4. Make selections, in determining the location of facilities, that have the effect of excluding or discriminating against persons with disabilities.
As of January 26, 1992, Title II prohibited all public agencies, regardless of the size of their work force, from discriminating in their employment practices against qualified individuals with disabilities. The employment non-discrimination standards utilized were those in Section 504 of the Rehabilitation Act of 1973. As of January 26, 1992, employment requirements apply to all state and local governments, regardless of how many employees they have. This employment discrimination prohibition covers all aspects of employment including recruitment, application, hiring, promotion and demotion, layoffs, compensate and benefits, training, and employer-sponsored activities. In providing equal employment opportunities, public agencies are required to make reasonable accommodations for qualified applicants and employees with disabilities.
Public sector programs, services and activities must be accessible to and usable by persons with disabilities. In other words, all public services, when viewed in their entirety, must be readily accessible to people with disabilities. The public sector is obligated to have "program access" whether or not specific facilities are physically accessible. Governmental agencies are required to make "readily accessible and usable" all public facilities on which construction or alteration was begun after January 1992. However, they are not required to make existing facilities accessible unless there is no other feasible means for achieving program access.
Public agencies are also required to ensure that their communications with persons with disabilities are as effective as their communications with others. To meet this obligation, governmental agencies must make available appropriate auxiliary aids and services, such as qualified interpreters, notetakers, handset amplifiers, telecommunications devices for people who are deaf (TTYs), readers, Braille and large-print materials. Telecommunication relay services may be used by public agencies to communicate with people who are deaf, hard of hearing or speech impaired.
This Title also provides specific requirements for public transportation by inter city and commuter rail and for public transportation other than by aircraft or certain rail operations. All new vehicles purchased or leased by a public entity that operates a fixed-route system are to be accessible and good-faith efforts must be demonstrated in the purchase or lease of used vehicles. Retrofitting of existing buses is not required. Public transit authorities must provide comparable service to individuals who cannot use fixed route systems unless it would pose an undue burden. Generally, within five years, rail systems are to have at least one car per train that is accessible to individuals with disabilities.
And, public agencies are required to provide "direct access" to basic emergency services, such as police, fire and ambulance services, 911 lines, and poison control information. "Direct access" means that emergency telephone services can be directly received without the intervention of outside relay services or third party services.
All public agencies are required to take several administrative measures to ensure compliance with the ADA including the preparation of a Self-Evaluation and a Transition Plan. This means that all policies, programs, services, activities and practice must be reviewed to ensure that they do not discriminate against persons with disabilities. The public agency must then modify, a soon as feasible, any policies, programs, services or activities, practices that are determined to be inconsistent with ADA requirements.
The Self-Evaluation should: A. Identify all policies, programs, services or activities, and practices of the public agency. These should be evaluated against the ADA requirements.
B. Review all the policies that govern the administration of programs, services and activities. This includes laws, ordinances, regulations, administrative manuals or guides, policy directives memoranda and other practices.
C. Examine each program to determine whether any physical barriers to access exist and identify the steps that need to be taken to achieve program access.
D. Confirm the existence of or ensure the establishment of procedures to evacuate individuals with disabilities during an emergency.
E. Justify any exclusionary or limiting policies and practices that will not be modified.
F. Comply with the ADA's administrative requirements, such as:
Maintenance of a Self-Evaluation Plan on file for public inspection for three years following its completion. This file should include the Transition Plan, a list of interested persons consulted, a description of areas examined and any problems identified including checklists and summaries, and a description of any modifications made or remedial steps taken.
If structural modifications are required to achieve program access, public agencies must develop a Transition Plan for structural barrier removal that will be implemented as expeditiously as possible and completed no later than January 26, 1995.
If the public agency previously completed a Transition Plan under Section 504 of the Rehabilitation Act, its Title II Transition Plan must address only those barriers to accessibility that were not addressed in the previous plan. However, it may be easier and more efficient to assess all facilities since most Section 504 Transition Plans were completed more than a decade ago.
At a minimum, the Transition Plan should contain:
COMPLAINTS AND ENFORCEMENT
Allegations of Title II violations which are not resolved at the local level may be filed either as administrative complaints with the appropriate federal agency or as lawsuits in federal district court. To formally submit a complaint or to obtain more information contact:
State and Local Government Services:
U.S. Department of Justice
Civil Rights Division
Office on the Americans With Disabilities Act
P.O. Box 66118
Washington DC 20035-6118
(800) 514-0383 TTY
(202) 514-6193 Electronic Bulletin Board
Public Mass Transportation:
U. S. Department of Transportation
400 7th Street, S. W.
Washington DC 20590
(202) 755-7687 TTY
Achieving compliance with Title II should not be difficult as public agencies that receive federal funds have had to comply with similar requirements under Sections 503 and 504 of the Rehabilitation Act of 1973. Public programs and services are intended to benefit everyone. Historically, people with disabilities have not always been able to access or use such programs and services. The ADA facilitates a re-evaluation of such public activities to ensure their use by all persons in a community, including persons with Public programs and services are intended to benefit everyone. Historically, people with disabilities have not always been able to access or use such programs and services. The ADA facilitates a re-evaluation of such public activities to insure their use by all persons in a community, including persons with disabilities.
PRIVATE SECTOR SERVICES
Title III of the Americans With Disabilities Act (ADA) requires places of public accommodations commercial facilities and certain private entities to be accessible to and usable by persons with disabilities.
The term public accommodation used in the ADA means all private businesses that offer goods and services to the public, such as motels, restaurants, bars, movie theaters, convention centers, grocery stores, clothing stores, malls, museums, libraries, gyms, bowling alleys, amusement parks, or just about any other facility commonly used by the general public.
Commercial facilities are nonresidential facilities, such as office buildings, factories and warehouses, in which operations affect commerce. Private entities covered include those which offer certain examinations and courses related to educational and occupational certification.
Access requirements to public accommodations and commercial facilities took effect on January 26, 1992 for alterations, and January 26, 1993 for new facilities. Access requirements for public transportation provided by private entities took effect, in general on January 26, 1992.
However, since August 26, 1990, all solicitations for purchases or leases of new fixed route vehicles must have been for accessible vehicles. Title III allows a three year study of over-the-road buses to determine the best way to provide access with requirements effective July 26, 1996, for larger providers and July 26, 1997, for smaller providers.
ACCESS TO SERVICES
Title III requires the private sector to:
1 . Provide goods and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.
2. Eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy the goods and services of a place of public accommodation.
3. Make reasonable modifications in policies, practices and procedures that deny equal access to individuals with disabilities, unless doing so would fundamentally alter the nature of the goods and services provided.
4. Furnish auxiliary aids when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.
5. Remove architectural and communication barriers in existing facilities where readily achievable.
6. Provide alternative measures when removal of barriers not readily achievable.
7. Maintain accessible features of facilities and equipment.
8. Design and construct new facilities and when undertake alterations, alter existing facilities in. accordance with the Americans with Disabilities Act Accessibility Guidelines (ADAAG) issued by the Architectural and Transportation Barriers Compliance Board, Title 24 of the California Code of Regulations and incorporated in the final Department of Justice Title III regulation.
A public accommodation is not required to provide personal devices such as wheelchairs, individually prescribed devices such as prescription eyeglasses or hearing aids, or services of a person nature including assistance in eating, toileting or dressing.
A place of public accommodation may not discriminate against individual or entity because of the known disability of a person with whom an individual or entity is known to have a relationship or association. Commercial facilities are subject to the requirement that new construction and alterations conform to the Title 24 California Code of Regulations and ADAAG. The other requirements applicable to public accommodations listed above do not apply to commercial facilities.
Private entities offering certain examinations or courses such as those related to applications, licensing, certification, or credentialing for secondary or post-secondary education, professional, or trade purposes, must offer them in an accessible place or offer alternative accessible arrangements.
ACCESS TO FACILITIES: Existing Facilities
ADA requirements for existing facilities apply only to public accommodations and they require that architectural communication and transportation barriers must be removed where it is readily achievable to do so. "Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. However, rearrangement of furniture, equipment or display racks is not considered readily achievable if it results in a significant loss of selling or serving space. Work areas are not required to be accessible in existing facilities. Also, readily achievable barrier removal is an on-going obligation.
Where removing all barriers is not readily achievable, the public accommodation is urged to remove barriers in accordance with the following order of priorities:
If barrier removal is not readily achievable, the public accommodation must make goods and services available through alternative methods. Examples of alternative methods include but are not limited to:
ACCESS TO FACILITIES: New Construction
ADA requirements for new construction apply to any facility occupied after January 26, 1993, for which the last application for a building permit or permit extension was certified as complete after January 26, 1992, and the first certificate of occupancy was issued after January 26, 1993. This applies to both public accommodations and commercial facilities. New buildings must be readily accessible to and usable by people with disabilities. "Readily accessible to and usable by" means compliance with Department of Justice regulations and ADAAG.
Elevators are an exception if the building is less than three stories or less than 3000 square feet per story, unless the building is a:
ACCESS TO FACILITIES: Alterations
ADA requirements for alterations are that the "altered area" must be made readily accessible to and usable by people with disabilities to the maximum extent feasible. This applies to physical alterations which began after January 26, 1992. An accessible path of travel must be provided to the altered area if the area is a primary function area, and not disproportionate in cost and scope to the overall alteration (costing more than 20% of the overall alteration).
If providing an accessible path of travel will cost more than 20% of the cost of the altered area, the public accommodation or commercial facility must choose which accessible features to provide. Priority should be given to those elements that will provide the greatest access in the following order:
The path of travel requirement may not be evaded by performing a series of small alterations. There is an elevator exception for alterations and it is the same as the exception noted under new construction.
EXAMINATIONS AND COURSES
In order to provide an examination or course in an accessible place and manner, a private entity must:
1. Assure that the examination measures what it is intended to measure, rather than reflecting any sensory, manual, or speaking limitations the individual may have;
2. Modify the examination format when necessary, such as allowing additional time;
3. Provide auxiliary aids, unless they would fundamentally alter the measurement of the skills or knowledge that the examination is intended to test or would result in an undue burden. Typical aids may include, but are not limited to, taped examinations, interpreters, large print answer sheets, or qualified readers;
4. Offer any modified examination at an equally convenient location, as often, and in as timely a manner
5. Administer examinations in an accessible facility or provide alternative comparable arrangements, such as providing the examination at the individual's home with a proctor.
TAX CREDIT FOR ACCESSIBILITY
Small businesses may claim a tax credit of up to 50 percent for costs associated with ADA compliance (Internal Revenue Service Code Section 44). Eligible businesses are those with 30 or fewer full-time employees or gross receipts of $1 million or less in the preceding taxable year. This credit is meant as an incentive to renovate existing property, not to subsidize new construction. The credit applies to expenditures in excess of $250, but not more than $10,250. The maximum credit is $5,000.
TAX DEDUCTION FOR BARRIER REMOVAL
The Internal Revenue Service (IRS) allows a deduction up to $15,000 per year for "qualified architectural and transportation barrier removal expenses." Expenditures to make a facility or public transportation vehicle owned or leased in connection with trade or business more accessible to, and usable by, individuals who are disabled or elderly are eligible for the deduction. To be eligible for this deduction, modifications must meet the requirements of standards established by IRS regulations implementing section 190 (Title 26, Internal Revenue Code, Section 190). For furthe r information on Tax Credit and Tax Deduction contact:
Internal Revenue Service
ATTN: CC:PSI:6, Room 5112
Ben Franklin Station
Washington DC 20044
(202) 622-3110 Voice
TTY: Call through the California Relay Service
COMPLAINTS AND ENFORCEMENT
Regulation of all aspects of public accommodations compliance rests with the U.S. Department of Justice. Private parties may bring lawsuits to obtain court orders to stop discrimination. No monetary damages will be available in such suits, however, reasonable attorney's fees may be awarded. Individuals may also file complaints with the Attorney General who is authorized to bring lawsuits in cases of general public importance or where a "pattern or practice" of discrimination is alleged. In suits brought by the Attorney General, monetary damages, not including punitive damages, and civil penalties may be awarded. Civil penalties may not exceed $50,000 for a first violation or $100,000 for any subsequent violation. To formally submit a complaint or to obtain further information, please contact:
Public Accommodations and Commercial Facilities:
U.S. Department of Justice, Civil Rights Division Office on the Americans
With Disabilities Act
P.O. Box 66118
Washington DC 20035-6118
(800) 514-0383 TTY
(800) 514-6193 Electronic Bulletin Board
Private Mass Transportation:
U.S. Department of Transportation 400 7th Street, S.W.
Washington DC 20590 (202) 366-9305
(202) 755-7687 TTY
Information on accessible design in new construction
and alterations may be obtained by contacting:
Architectural and Transportation Barriers
1111 18th Street N.W., Suite 501
Washington DC 20036
800 USA-ABLE Voice/TTY
Title III is intended to assure full and equal access to the goods or services a public accommodation or commercial facility presently provides to the general public, to people with disabilities.
Title IV of the Americans with Disabilities Act (ADA) will substantially improve the access to communications of persons who are deaf, hard of hearing or speech impaired by requiring the establishment of telecommunication relay services and captioning of public service announcements.
The ADA amended the Communications Act of 1934 to require that interstate and intrastate telecommunications relay services (TRS) be made available to people who are deaf, hard of hearing or speech impaired. These relay services will enable individuals who use Telecommunications Devices for the Deaf (TDDS) also known as Text Telephones (TTYs), to have telephone conversations with individuals who use conventional voice telephones anytime, any place, and for any reason whatsoever. This requirement became effective July 26, 1993. Specially trained Relay Service Agents complete all calls and stay on-line to relay messages either electronically over a TTY, or verbally to hearing parties.
Relay Service Agents follow a strict code of ethics which include:
For further information or to use the relay service, please contact the California Relay Service:
(800) 735-2929 or Voice: 1 (800) 735-2922.
Carriers, through publication in their directories, periodic billing inserts and placement of (TRS) instructions in telephone directories, through directory assistance services, and incorporation of TTY numbers in telephone directories, shall assure that callers in their service areas are aware of the availability and use of TRS. Phone companies must provide a hearing aid compatible telephone as defined in the ADA, and provide related installation and maintenance services for such telephones on a non-tariff basis to any customer with a hearing disability who requests such equipment or services.
PUBLIC SERVICE ANNOUNCEMEENT CAPTIONING
Title IV also requires that any television public service announcement that is produced or funded in whole or in part by any agency or instrumentality of the Federal Government shall include closed captioning of the verbal content of such announcement. However, it is the recommendation and preference of the Department of Rehabilitation to include open captioning whenever possible. Open captioning eliminates the need to purchase a decoder. Captioning is particularly valuable in the event of an emergency such as a fire or an earthquake. Local television stations are required to include closed captioning to the verbal content of public service announcements and information of importance to public safety.
COMPLAINTS AND ENFORCEMENT
To formally file a complaint or to obtain further information contact the Federal Communications Commission (FCC) at:
Federal Communications Commission
1919 M Street, N. W.
Washington DC 20554
(202) 632-6999 TTY
California is ahead of the relay service requirements of Title IV, as it was the first state to implement a state funded relay service available year round, 24 hours a day, with no restrictions on the length or number of calls placed. In 1991 alone, the California Relay Service (CRS) reported more than 3 million calls.
The Department of Rehabilitation: A VALUABLE RESOURCE
The mission of the Department of Rehabilitation is to assist people with disabilities, particularly those with severe disabilities, in obtaining and retaining meaningful employment and living independently in their communities. The Department develops, purchases, provides and advocates for programs and services in vocational rehabilitation, habilitation and independent living with a priority on serving persons with all disabilities, especially those with the most severe disabilities.
The Department has been designated by the Governor as the lead State Department in California's efforts to implement the Americans with Disabilities Act (ADA). Departmental ADA efforts include providing public information, training and technical assistance to businesses, state and local agencies and disability rights organizations.
The ADA Implementation Unit, with seven staff positions serves as the Department's ADA focal point. Also, local resource persons conduct workshops and training sessions regarding the requirements, impact, and enforcement of the ADA. Brochures, pamphlets and other printed material are available for distribution to employers, consumers and other groups. The Department also sponsors the Community Access Network (CAN) volunteers who are trained in Title 24 and ADAAG access standards.
Services to clients and employers are provided through a network of over 120 departmental offices covering the entire state. The Department of Rehabilitation can help businesses and employers by referring qualified individuals with disabilities for employment opportunities and also act as a resource for assistance with reasonable accommodations. Contact may be made directly with the district offices by referring to the state government section of the telephone directory. The ADA Implementation Unit of the Department may be reached at (916) 322-0251, or (916)322-1096 TTY.