Before starting this class and especially the research paper, I knew very little about the ADA. During the period of research and writing the paper I hope to obtain a better grasp on the ADA in general. But I also hope to learn some things that my current place of employment can improve our standards when it comes to those with disabilities. The ADA was signed into law on July 26, 1990 by then President George H. W. Bush. It prohibits discrimination based on disability and only disability. It is fairly similar to the Civil Rights Act of 1964.
Implementing the Americans with Disabilities Act. Blackwell Publishing. General Discussion & Analysis The Americans with Disabilities Act of 1990 (ADA) is a civil-rights law that was passed on July 26, 1990 (Acemoglu). Kathryn Moss suggests that the ADA is arguably the most important civil rights law for people with disabilities and the most significant since the Civil Rights Act of 1964. The ADA is a federal legislation that forbids discrimination of various sorts and allows the 43 million Americans with disabilities an equal opportunity for employment and services.
It provides fairly similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. The Merriam-Webster dictionary defines being disabled as “incapacitated by illness or injury; also physically or mentally impaired in a way that substantially limits activity especially in relation to employment or education. The law was written enable people with disabilities to not only enter the job market but to also remain employed.
In the late 1980’s, a House of Representatives report came to a conclusion that more than 8. 2 million disabled individuals were unemployed despite their desire to work. Also, those disabled individuals earned 36 to 38 percent less than their counterparts (Faillace). According to Gary Dessler, “employers with 15 or more workers are prohibited from discriminating against qualified individuals with disabilities with regard to applications, hiring, discharge, compensation, advancement, training, or other terms, conditions, or privileges of employment.
It also says that employers must make ‘reasonable accommodations’ for physical or mental limitations unless doing so imposes an ‘undue hardship’ on the business. ” It not only prohibits discrimination in employment but also outlaws most physical barriers in public accommodations, transportation, telecommunications, and government services. Although the ADA does not specifically list any disabilities, the Equal Employment Opportunity Commission’s (EEOC) guidelines state that when an individual has a physical or mental impairment that substantially limits one or more major life activity then the individual is in fact disabled.
It goes on to state that impairments can include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems, or any mental or psychological disorder (Dessler). Among the protected classes are persons with AIDS and substance abusers who are in treatment. Some 50 million current or potential workers are estimated to be covered by the law’s provisions (Columbia Encyclopedia). However, the act does list some conditions that are not to be considered as disabilities.
These include “homosexuality, bisexuality, voyeurism, compulsive gambling, pyromania, and certain disorders resulting from the current illegal use of drugs” (Dessler). The act has already been much litigated. In 1999, for instance, the U. S. Supreme Court ruled that correctable conditions like eyesight requiring the use of glasses do not qualify as disabilities under the act, and a 2002 decision established that a disability must limit a person’s ability to perform tasks of central importance not just in the workplace but in daily life (Fielder).
Studies suggest that the number of disabled persons entering the workforce has not improved significantly, and that a contributing factor may be their reluctance to lose other benefits available to them on the basis of their disabilities (DeLiere). Although the President’s Committee on Employment of People with Disabilities reports that the cost of making an accommodation for an employee with a disability averages around $200 per employee with many costing less than $50. But espite this relatively small cost, many employers are still stereotyping disabled individuals and fear that the accommodations may disrupt the workplace (Blanck). Dale Brown states there are several myths regarding the Americans with Disabilities Act. He says the “ADA does not give you the right to a job because you have a disability. You must be qualified and compete and you may be rejected from a job just like anyone else. It does not give extra points in getting a job, the ADA is not an affirmative action statute.
That is, its not intended to make up for past discrimination by requiring the employers hire a certain number of people with disabilities or giving them incentives to do so. It also does not allow any special privileges on the job. Although sometimes reasonable accommodation might look like special privileges to other people, you have the same responsibilities and challenges as your fellow employees. ” In essence, you still must be as qualified or more qualified than a fellow prospective job applicant in order to receive the position.
There will be no punishment for the employer if the disabled applicant is not hired because of the two applicant’s qualifications. TITLE I-Employment Title I of the ADA contains the law’s employment provisions. This is where the law states that private employers (the exact term in the law is covered entity) with 15 or more employees must not discriminate against qualified individuals with disabilities. A qualified individual is a person that can perform the essential duties and functions of a job or position with reasonable accommodations.
One may see a potential loophole with the act based on those two words “reasonable accommodations. ” The definition of reasonable accommodations along with any other possible complaint against a company is taking on a case by case basis. But such accommodations are required only if making them does not place an undue hardship on the employer (Moss). Title I applies to all aspects of one’s job including application procedures, hiring, promotion and discharge, worker’s compensation, job training, and more (Blanck). Another aspect of the job that is covered under the ADA is if a prospective job applicant is related o or associated with a person who has a disability. For example, if an employer will not hire someone because they may think the prospective applicant would be too consumed with taking care of the disabled person, it would be illegal for the employer to not hire the applicant for that reason (Brown). Cases filed against employers regarding Title I tend to be not cases about fact but rather about personal and social attitudes because they tend to involve the “states of mind of the various players in the story” (Krieger).
Krieger goes on to state that juries and judges are asked to imagine the state of mind of an employer who was faced with hiring an applicant or not hiring an applicant that is, for example, obese. Or to fire an employee who has “nonsymptomatic AIDS. ” In many cases it comes down to the personality and presentation of the person or persons under trial rather than the facts, because there may not be any facts, just allegations. An employee must perform the essential functions, those activities that are intrinsic to a job.
The essential functions are determined individually for each job. However, an employee is still considered as a qualified candidate or employee if it only takes reasonable accommodation to meet the functions of the job. According to Dale Brown, making reasonable accommodations usually means “removing obstacles from the job, the workplace, or the terms and conditions of employment that would otherwise prevent an otherwise qualified person with a disability from doing the job. ” He goes on to give an example of what reasonable accommodation may be.
He states that computers and calculators are reasonable accommodations that may help many people whom have learning disabilities or dyslexia with routine arithmetic and proofreading functions. Also, in order for an employer to make these reasonable accommodations to the workplace, they must have knowledge of the disability of the applicant or employee. If the employer is not made aware of the disability they may not be held responsible for any discrimination. The discrimination can not take place until the disability is actually disclosed.
Even then, the employer is legally allowed to ask for medical documentation and evaluate it before they determine whether or not the request is appropriate (West). Meaning, the burden of proof that the disability substantially limits a major life role lies on the applicant or employee along with their health provider. Not only must the health care provider and applicant or employee prove that a disability is present, but must also prove that the requested accommodation is a necessity to perform their job. If the employer will not make the accommodations, the applicant or employee can pay for the accommodation out of their own pocket.
Ruth Colker states that if an applicant or employee offers to pay for the accommodation, the employer can not say no unless it is disruptive. So again, it is up to the jury or judge to determine what is and what is not disruptive. This is again why each ADA case or complaint is handled differently and there is no real precedent in these cases. TITLE II-Public Services Title II has two different sections. One that covers public entities and the other is specific to public transportation provided by public entities.
The section that covers public agencies includes local, county, state government and their departments and agencies. Title II covers all activities, services, and programs of the public entities (Americans). The first section includes entities like schools, city governments, and fire stations. Accessibility means that each program is readily accessible to and usable by individuals with disabilities. Program accessibility is necessary not only for individuals with mobility impairments, but also for individuals with vision and hearing impairments (Americans).
Meaning leaders of the entities need to consider not only physical obstructions such as doors and restrooms but also visual and hearing barriers such as accessible building signage, public telephones and alarms with visible signals. The second section, which covers the public transportation of the aforementioned public entities, includes services operated by state and local government by regulations of the Department of Transportation. It also includes facilities used for the public transportation systems such as bus stations, railway stations and airports along with vehicles used in public transportation (Americans).
Again, the basis for this title is that no qualified individual with a disability will be subjected to any sort of discrimination by a public entity. It also states that the individual not be deprived of any benefits of services or activities of the public entity due to the disability as well. Any sort of accessibility or service that is lacking from any of the public entities can be considered discrimination regardless of who it actually affects. TITLE III- Public Accommodations Title III of the ADA is the title that applies to private entities such as hotels, stores, gas stations, etc.
It is very similar to Title II just in regards to the different type of business entity that it covers. It prohibits discrimination on the basis of disability by public accommodations and also in commercial facilities (Brown). It also prohibits the discrimination on the basis of disability by any person who owns or operates a place of public accommodation. However, entities that are controlled by religious organizations, including places of worship, and private clubs are both not covered by Title III. Although private clubs are not covered, their facilities are made available to customers of a place of public accommodation (West).
The public accommodations must also provide auxiliary aids and services when they are necessary to ensure effective communication with those with hearing, vision, speech, or similar impairments. TITLE IV- Telecommunications Title IV of the ADA requires that all United States based local or long distance telephone services must provide a relay service for those individuals that are deaf or hard of hearing along with those with speech impediments. Also, people with TDD’s (Telecommunications Device for the Deaf ) and TTY’s (Teletypewriter) who are calling those with out TDD’s or TTY’s and vice versa can make a call through a relay service.
The relay service will transmit the call using TDD/TTY or voice depending on the need (Joffee). Today, there are multiple sources of TDD’s and TTY’s available through the internet using broadband connections. TITLE V-Miscellaneous Provisions Title V includes miscellaneous provisions that relate to the application of the ADA. Some of the more notable provisions are: •“The ADA shall not be construed to apply a lesser standard than that already in existence under
Section 504 of the Rehabilitation Act of 1973 or to invalidate any state or local laws which have stricter provisions. •The ADA will not prohibit an insurance company from using sound actuarial data to administer risks, even if the effect is that people with disabilities will be charged more or denied coverage, but it must not be used as a subterfuge to deny coverage. •The ADA shall not be construed to require a person to accept an accommodation” (Acemoglu). Conclusion The ADA was instituted to help even the playing field for those with disabilities.
But in some ways it has actually discouraged employers from hiring candidates with disabilities due to the perceived extra cost and effort it would take to hire a disabled person. Another reason for criticism is that many lawyers have made a living out of suing non-compliant businesses. There has also been research that concludes the number of disabled employed has actually declined significantly since the passage of the ADA. So while the ADA was instituted for all the right reasons, maybe the plan hasn’t been perfected and it is lacking some effectiveness to date.
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( USA, AUS, UK & CA PhD. Writers )