New Directions in Accessibility and Employment Rich Sternadori Great Plains, Nebraska ADA Coordinator
Course Objectives • Knowing the services available from the Federal network of ADA Centers. • Gaining a perspective on the newly expanded civil rights for persons with disabilities under the ADA Amendments Act and the Equal Employment Opportunities Commission. • Understanding the concepts and applications of Title III of the ADA
Introduction The ADA Centers
Disability Business and Technical Assistance Center. 800. 949. 4232 www.adaproject.org
Ten centers established by the National Institute on Disability and Rehabilitation Research (NIDRR) 1-800-949-4232 www.adata.org
DBTAC Service Region VII IA • Iowa • Kansas • Missouri • Nebraska NE MO KS
DBTAC REGION VII - About Us The Great Plains ADA Disability and Technical Assistance Center (DBTAC) is one of ten centers established shortly after the Americans with Disabilities Act was signed into law in 1991. Our mission is to provide information, technical assistance and training on the Americans with Disabilities Act and related disability laws.
Technical Assistance… …is just a phone call away when you use the ADA Info Line. Or submit questions on–line atwww.adaproject.org 1-800-949-4232
Who is protected by the ADA? • The ADA Protects “Qualified Individuals with Disabilities From Discrimination by Public Entities. • How do we define a qualified individual?
Individual with a disability: Three-part definition • Has a physical or mental impairment that “substantially limits” one or more major life activities . • Has a record of such an impairment 3) Is regarded as having such an impairment.
Regarded as Having a Disability • An individual can establish coverage under “regarded as” by showing that he or she was subjected to an action prohibited by the ADA, based on an actual or perceived impairment - regardless of whether the impairment limits a major life activity.
Regarded as Having a Disability • Clarifies that an individual is not “regarded as” impaired because of a transitory or minor impairment, and defines “transitory impairment” as one with an actual or expected duration of 6 months or less. • Employers are not required to provide reasonable accommodation to individuals that are only “regarded as” having an impairment.
Walking Speaking Breathing Seeing Hearing Learning Sitting Standing Thinking Genetic health Working? What is a Major Life Activity? Non- exhaustive list of activities that an average person can perform with little or no difficulty:
Mitigating measures Sutton v. United – correctable vision. Prognosis Remission: Cancer Depression PTSD “Substantially Limited” Oscar Pistorius
ADA Fundamentals The Five ADA Titles
Americans with Disabilities Act: Five Titles. • Title I - Employment • Title II - Access to Public Programs & Services • Title III - Access to Private Businesses & Services • Title IV – Communication • Title V - Miscellaneous
Americans with Disabilities Act: Five Titles. • Title I –employment - applies to the employee/employer users of your target building. • Title I does not contain any design standards. • Titles II and III will inform the design for all others who use the same structure.
ADA Title I - Employment Title I regulates all employment activities, including: • Job applications and recruitment • Hiring and discharge • Compensation and benefits • Job assignment –reassignment • Advancement • Performance management • Annual and sick leave • Job training • Social and recreational activities • Other terms, conditions and privileges of employment.
The limits of the ADA Titles: Title I - Employment Title I protects the individual with the disability and provides employment guidance to the employer. • Title I does not provide the designer, builder or an employer the ability to bypass or have waived the SAD or other ADA design requirements.
ADA Title I - Employment • Prohibits discrimination on the basis of disability in the workplace for “qualified” individuals. • Requires reasonable accommodations (RA) be provided for qualified individuals during employment. • Restricts questioning referring to an individual’s disability. • Contains no design standards or guidelines
ADA Title II and Title III Both prohibit discrimination against individuals based on disability. Both provide regulations to remove obstacles or barriers that keep individuals with disabilities from participating fully in public activities..
Title III- Public Accommodations • Services and goods offered by private individuals, organizations and agencies that do not utilize state or local funding for their operation or guidance. “Main Street”
ADA TITLE III: Places of Public Accommodation Private establishments, such as: • Restaurants, hotels, theaters, • Convention centers, • Retail stores and shopping centers, • Recreation centers, gyms, bowling alleys • Pharmacies • Doctors' offices and hospitals • Museums and libraries • Private schools and day care centers
ADA Title III Also Covers: Commercial facilities • Commercial facilities are nonresidential facilities, including office buildings, factories, and warehouses, whose operations affect commerce. • Private entities that offer certain examinations and courses related to educational and occupational certification.
Who is Not Covered? • Entities controlled by religious organizations, including places of worship. • Private clubs are not covered unless an event or service is offered to the general public. • Housing is not covered by the ADA.
Existing Buildings Title III – Barrier Removal • 101.2 - Public Accommodations Under Title III “RABM” Readily Achievable Barrier Removal/Modification Readily Achievable = Without significant cost or difficulty
Existing Buildings Title III – Barrier Removal • When “readily achievable”, the barrier removal must comply with the alterations requirements of the 2010 SAD. • If not readily achievable, other safe, readily achievable measures must be taken to the maximum extent feasible. • Readily achievable barrier removal in Title III was intended for clients and customers – NOT employees
Readily Achievable Barrier Removal A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., “easily accomplishable and able to be carried out without much difficulty or expense.”
Readily Achievable Barrier Removal Factors to be considered in determining whether an action is readily achievable – • Nature and cost. • Overall financial resources; number of persons; effect on expenses and resources; legitimate safety; or the impact otherwise of the action upon the operation of the site. • Geographic separateness. • If applicable, the overall financial; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities. • Type of operation or operations of any parent corporation or entity.
Readily Achievable Barrier Removal Examples of steps to remove barriers include – • Installing ramps • Making curb cuts in sidewalks and entrances • Repositioning shelves • Rearranging tables, chairs, vending machines, display racks, and other furniture • Adding raised markings on elevator control buttons • Installing flashing alarm lights • Widening doors • Installing offset hinges to widen doorways • Eliminating a turnstile or providing an alternative accessible path
Readily Achievable Barrier Removal Examples of steps to remove barriers include – • Installing accessible door hardware • Installing grab bars in toilet stalls • Rearranging toilet partitions to increase maneuvering space • Insulating lavatory pipes under sinks to prevent burns • Installing a raised toilet seat • Installing a full-length bathroom mirror • Repositioning the paper towel dispenser in a bathroom • Creating designated accessible parking spaces • Installing an accessible paper cup dispenser at an existing inaccessible water fountain • Removing high pile, low density carpeting • Installing vehicle hand controls.
Readily Achievable Barrier RemovalPriorities First - access from public sidewalks, parking, or public transportation. Second - access to those areas where goods and services are made available. Third - access to restroom facilities. Fourth - take any other measures necessary to provide access to the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.
Readily Achievable Barrier RemovalOptions • If the measures required to remove a barrier would not be readily achievable, a public accommodation may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements. • For example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements. • No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others.
Fundamental Alteration of the Nature of a Program or Service • Title II and Title III entities are not required to provide personal devices such as wheelchairs; individually prescribed devices (e.g., prescription eyeglasses or hearing aids); or services of a personal nature including assistance in eating, toileting, or dressing.
Inclusion of People with Disabilities • May not refuse to allow a person with a disability to participate in a service, program, or activity simply because the person has a disability. • Or is associated with someone who has a disability
Effective Communication • Must furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.
Effective Communication • Both Title II and Title III entities must ensure that communications with individuals with disabilities are as effective as communications with others. • In order to provide effective communication, public and private entities are required to make appropriate auxiliary aids and services available when they are necessary to ensure effective communication.
Auxiliary Aids and Services qualified interpreters • assistive listening headsets • television captioning and decoders • telecommunications devices for deaf persons (TDD's) • videotext displays • readers • audio-tapes • brailed materials • large print materials • captioning
Auxiliary Aids and Services • The auxiliary aid requirement is flexible. For example, a brailled menu is not required, if waiters are available to read the menu to blind customers.
Modifications in Policies, Practices, and Procedures For example: A retail store that has a “no dogs allowed” policy must modify its policy to allow service dogs.
Accessible Facilities • Existing Facilities • When existing facilities are not accessible • Title II entities must provide “Program Access”. • Title III entities must do what is “Readily Achievable”.
Title III-Readily Achievable • Physical barriers to entering and using existing facilities must be removed when "readily achievable. • "Readily achievable means "easily accomplishable and able to be carried out without much difficulty or expense.”
Readily Achievable • What is readily achievable is determined on a case-by-case basis in light of the resources available. • Does not require the rearrangement of temporary or movable structures, such as furniture, equipment, and display racks if it would result in a significant loss of selling or serving space. • Legitimate safety requirements may be considered in determining what is readily achievable.
Readily Achievable Examples of barrier removal measures include: • Installing ramps. • Making curb cuts at sidewalks and entrances. • Rearranging tables, chairs, vending machines, display racks, and other furniture. • Widening doorways. • Installing grab bars in toilet stalls. • Adding raised letters or braille to elevator control buttons.
Readily Achievable First priority should be given to measures that will enable individuals with disabilities to "get in the front door," followed by measures to provide access to areas providing goods and services.
Readily Achievable • Barrier removal measures must comply, when readily achievable, with the alterations requirements of the ADA Accessibility Guidelines. • If compliance with the Guidelines is not readily achievable, other safe, readily achievable measures must be taken, such as installation of a slightly narrower door than would be required by the Guidelines.
Tax Incentives for Businesses • A tax credit for small businesses who remove access barriers from their facilities, provide accessible services, or take other steps to improve accessibility for customers with disabilities • A tax deduction for businesses of all sizes that remove access barriers in their facilities or vehicles
ADA Amendment Act • On January 1, 2009, the Americans with Disabilities Act (ADA) Amendments Act of 2008 went into effect. • Since 1990, a series of Federal and Supreme court decisions have unduly narrowed the category of who qualifies as an “individual with a disability.”
Why the need for the ADA Amendments Act? By raising the threshold for an impairment to qualify as a disability, these court decisions have deprived individuals of the discrimination protections Congress intended to provide. The ADAAA reestablishes Congressional intent to apply the law liberally to remedy discrimination against the protected class.