U.S. Equal Employment Opportunity Commission
U.S. Department of Justice Civil Rights Division
Questions and Answers
Barriers to employment, transportation, public
accommodations, public services, and telecommunications have imposed
staggering economic and social costs on American society and have
undermined our well-intentioned efforts to educate, rehabilitate, and
employ individuals with disabilities. By breaking down these barriers,
the Americans with Disabilities Act (ADA) will enable society to benefit
from the skills and talents of individuals with disabilities, will allow
us all to gain from their increased purchasing power and ability to use
it, and will lead to fuller, more productive lives for all Americans.
The Americans with Disabilities Act gives civil
rights protections to individuals with disabilities similar to those
provided to individuals on the basis of race, color, sex, national
origin, age, and religion. It guarantees equal opportunity for
individuals with disabilities in public accommodations, employment,
transportation, State and local government services, and
telecommunications.
Fair, swift, and effective enforcement of this
landmark civil rights legislation is a high priority of the Federal
Government. This booklet is designed to provide answers to some of the
most often asked questions about the ADA.
For answers to additional questions, call the ADA
Information Line
800-514-0301 (voice)
800-514-0383 (TDD)
Additional ADA resources are listed in the Resources
section of this document, page 30.
July 1996
Employment
Q. What employers are covered by title I of the
ADA, and when is the coverage effective?
A. The title I employment provisions apply to
private employers, State and local governments, employment agencies, and
labor unions. Employers with 25 or more employees were covered as of
July 26, 1992. Employers with 15 or more employees were covered two
years later, beginning July 26, 1994.
Q. What practices and activities are covered by
the employment nondiscrimination requirements?
A. The ADA prohibits discrimination in all
employment practices, including job application procedures, hiring,
firing, advancement, compensation, training, and other terms,
conditions, and privileges of employment. It applies to recruitment,
advertising, tenure, layoff, leave, fringe benefits, and all other
employment-related activities.
Q. Who is protected from employment
discrimination?
A. Employment discrimination is prohibited against
"qualified individuals with disabilities." This includes applicants for
employment and employees. An individual is considered to have a
"disability" if s/he has a physical or mental impairment that
substantially limits one or more major life activities, has a record of
such an impairment, or is regarded as having such an impairment. Persons
discriminated against because they have a known association or
relationship with an individual with a disability also are protected.
The first part of the definition makes clear that
the ADA applies to persons who have impairments and that these must
substantially limit major life activities such as seeing, hearing,
speaking, walking, breathing, performing manual tasks, learning, caring
for oneself, and working. An individual with epilepsy, paralysis, HIV
infection, AIDS, a substantial hearing or visual impairment, mental
retardation, or a specific learning disability is covered, but an
individual with a minor, nonchronic condition of short duration, such as
a sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting
individuals with a record of a disability would cover, for example, a
person who has recovered from cancer or mental illness.
The third part of the definition protects
individuals who are regarded as having a substantially limiting
impairment, even though they may not have such an impairment. For
example, this provision would protect a qualified individual with a
severe facial disfigurement from being denied employment because an
employer feared the "negative reactions" of customers or co-workers.
Q. Who is a "qualified individual with a
disability?"
A. A qualified individual with a disability is a
person who meets legitimate skill, experience, education, or other
requirements of an employment position that s/he holds or seeks, and who
can perform the oeessential functionsî of the position with or without
reasonable accommodation. Requiring the ability to perform "essential"
functions assures that an individual with a disability will not be
considered unqualified simply because of inability to perform marginal
or incidental job functions. If the individual is qualified to perform
essential job functions except for limitations caused by a disability,
the employer must consider whether the individual could perform these
functions with a reasonable accommodation. If a written job description
has been prepared in advance of advertising or interviewing applicants
for a job, this will be considered as evidence, although not conclusive
evidence, of the essential functions of the job.
Q. Does an employer have to give preference to a
qualified applicant with a disability over other applicants?
A. No. An employer is free to select the most
qualified applicant available and to make decisions based on reasons
unrelated to a disability. For example, suppose two persons apply for a
job as a typist and an essential function of the job is to type 75 words
per minute accurately. One applicant, an individual with a disability,
who is provided with a reasonable accommodation for a typing test, types
50 words per minute; the other applicant who has no disability
accurately types 75 words per minute. The employer can hire the
applicant with the higher typing speed, if typing speed is needed for
successful performance of the job.
Q. What limitations does the ADA impose on
medical examinations and inquiries about disability?
A. An employer may not ask or require a job
applicant to take a medical examination before making a job offer. It
cannot make any pre-employment inquiry about a disability or the nature
or severity of a disability. An employer may, however, ask questions
about the ability to perform specific job functions and may, with
certain limitations, ask an individual with a disability to describe or
demonstrate how s/he would perform these functions.
An employer may condition a job offer on the
satisfactory result of a post-offer medical examination or medical
inquiry if this is required of all entering employees in the same job
category. A post-offer examination or inquiry does not have to be
job-related and consistent with business necessity.
However, if an individual is not hired because a
post-offer medical examination or inquiry reveals a disability, the
reason(s) for not hiring must be job-related and consistent with
business necessity. The employer also must show that no reasonable
accommodation was available that would enable the individual to perform
the essential job functions, or that accommodation would impose an undue
hardship. A post-offer medical examination may disqualify an individual
if the employer can demonstrate that the individual would pose a "direct
threat" in the workplace (i.e., a significant risk of substantial harm
to the health or safety of the individual or others) that cannot be
eliminated or reduced below the oedirect threatî level through
reasonable accommodation. Such a disqualification is job-related and
consistent with business necessity. A post-offer medical examination may
not disqualify an individual with a disability who is currently able to
perform essential job functions because of speculation that the
disability may cause a risk of future injury.
After a person starts work, a medical examination or
inquiry of an employee must be job-related and consistent with business
necessity. Employers may conduct employee medical examinations where
there is evidence of a job performance or safety problem, examinations
required by other Federal laws, examinations to determine current
oefitnessî to perform a particular job, and voluntary examinations that
are part of employee health programs.
Information from all medical examinations and
inquiries must be kept apart from general personnel files as a separate,
confidential medical record, available only under limited conditions.
Tests for illegal use of drugs are not medical
examinations under the ADA and are not subject to the restrictions of
such examinations.
Q. When can an employer ask an applicant to
"self-identify" as having a disability?
A. Federal contractors and subcontractors who are
covered by the affirmative action requirements of section 503 of the
Rehabilitation Act of 1973 may invite individuals with disabilities to
identify themselves on a job application form or by other pre-employment
inquiry, to satisfy the section 503 affirmative action requirements.
Employers who request such information must observe section 503
requirements regarding the manner in which such information is requested
and used, and the procedures for maintaining such information as a
separate, confidential record, apart from regular personnel records.
A pre-employment inquiry about a disability is
allowed if required by another Federal law or regulation such as those
applicable to disabled veterans and veterans of the Vietnam era.
Pre-employment inquiries about disabilities may be necessary under such
laws to identify applicants or clients with disabilities in order to
provide them with required special services.
Q. Does the ADA require employers to develop
written job descriptions?
A. No. The ADA does not require employers to develop
or maintain job descriptions. However, a written job description that is
prepared before advertising or interviewing applicants for a job will be
considered as evidence along with other relevant factors. If an employer
uses job descriptions, they should be reviewed to make sure they
accurately reflect the actual functions of a job. A job description will
be most helpful if it focuses on the results or outcome of a job
function, not solely on the way it customarily is performed. A
reasonable accommodation may enable a person with a disability to
accomplish a job function in a manner that is different from the way an
employee who is not disabled may accomplish the same function.
Q. What is "reasonable accommodation?"
A. Reasonable accommodation is any modification or
adjustment to a job or the work environment that will enable a qualified
applicant or employee with a disability to participate in the
application process or to perform essential job functions. Reasonable
accommodation also includes adjustments to assure that a qualified
individual with a disability has rights and privileges in employment
equal to those of employees without disabilities.
Q. What are some of the accommodations applicants
and employees may need?
A. Examples of reasonable accommodation include
making existing facilities used by employees readily accessible to and
usable by an individual with a disability; restructuring a job;
modifying work schedules; acquiring or modifying equipment; providing
qualified readers or interpreters; or appropriately modifying
examinations, training, or other programs. Reasonable accommodation also
may include reassigning a current employee to a vacant position for
which the individual is qualified, if the person is unable to do the
original job because of a disability even with an accommodation.
However, there is no obligation to find a position for an applicant who
is not qualified for the position sought. Employers are not required to
lower quality or quantity standards as an accommodation; nor are they
obligated to provide personal use items such as glasses or hearing aids.
The decision as to the appropriate accommodation
must be based on the particular facts of each case. In selecting the
particular type of reasonable accommodation to provide, the principal
test is that o effectiveness, i.e., whether the accommodation will
provide an opportunity for a person with a disability to achieve the
same level of performance and to enjoy benefits equal to those of an
average, similarly situated person without a disability. However, the
accommodation does not have to ensure equal results or provide exactly
the same benefits.
Q. When is an employer required to make a
reasonable accommodation?
A. An employer is only required to accommodate a
"known" disability of a qualified applicant or employee. The requirement
generally will be triggered by a request from an individual with a
disability, who frequently will be able to suggest an appropriate
accommodation. Accommodations must be made on an individual basis,
because the nature and extent of a disabling condition and the
requirements of a job will vary in each case. If the individual does not
request an accommodation, the employer is not obligated to provide one
except where an individual's known disability impairs his/her ability to
know of, or effectively communicate a need for, an accommodation that is
obvious to the employer. If a person with a disability requests, but
cannot suggest, an appropriate accommodation, the employer and the
individual should work together to identify one. There are also many
public and private resources that can provide assistance without cost.
Q. What are the limitations on the obligation to
make a reasonable accommodation?
A. The individual with a disability requiring the
accommodation must be otherwise qualified, and the disability must be
known to the employer. In addition, an employer is not required to make
an accommodation if it would impose an "undue hardship" on the operation
of the employer's business. "Undue hardship" is defined as an "action
requiring significant difficulty or expense" when considered in light of
a number of factors. These factors include the nature and cost of the
accommodation in relation to the size, resources, nature, and structure
of the employer's operation. Undue hardship is determined on a
case-by-case basis. Where the facility making the accommodation is part
of a larger entity, the structure and overall resources of the larger
organization would be considered, as well as the financial and
administrative relationship of the facility to the larger organization.
In general, a larger employer with greater resources would be expected
to make accommodations requiring greater effort or expense than would be
required of a smaller employer with fewer resources.
If a particular accommodation would be an undue
hardship, the employer must try to identify another accommodation that
will not pose such a hardship. Also, if the cost of an accommodation
would impose an undue hardship on the employer, the individual with a
disability should be given the option of paying that portion of the cost
which would constitute an undue hardship or providing the accommodation.
Q. Must an employer modify existing facilities to
make them accessible?
A. The employer's obligation under title I is to
provide access for an individual applicant to participate in the job
application process, and for an individual employee with a disability to
perform the essential functions of his/her job, including access to a
building, to the work site, to needed equipment, and to all facilities
used by employees. For example, if an employee lounge is located in a
place inaccessible to an employee using a wheelchair, the lounge might
be modified or relocated, or comparable facilities might be provided in
a location that would enable the individual to take a break with
co-workers. The employer must provide such access unless it would cause
an undue hardship.
Under title I, an employer s not required to make
its existing facilities accessible until a particular applicant or
employee with a particular disability needs an accommodation, and then
the modifications should meet that individual's work needs. However,
employers should consider initiating changes that will provide general
accessibility, particularly for job applicants, since it is likely that
people with disabilities will be applying for jobs. The employer does
not have to make changes to provide access in places or facilities that
will not be used by that individual for employment-related activities or
benefits.
Q. Can an employer be required to reallocate an
essential function of a job to another employee as a reasonable
accommodation?
A. No. An employer is not required to reallocate
essential functions of a job as a reasonable accommodation.
Q. Can an employer be required to modify, adjust,
or make other reasonable accommodations in the way a test is given to a
qualified applicant or employee with a disability?
A. Yes. Accommodations may be needed to assure that
tests or examinations measure the actual ability of an individual to
perform job functions rather than reflect limitations caused by the
disability. Tests should be given to people who have sensory, speaking,
or manual impairments in a format that does not require the use of the
impaired skill, unless it is a job-related skill that the test is
designed to measure.
Q. Can an employer maintain existing
production/performance standards for an employee with a disability?
A. An employer can hold employees with disabilities
to the same standards of production/performance as other similarly
situated employees without disabilities for performing essential job
functions, with or without reasonable accommodation. An employer also
can hold employees with disabilities to the same standards of
production/performance as other employees regarding marginal functions
unless the disability affects the person's ability to perform those
marginal functions. If the ability to perform marginal functions is
affected by the disability, the employer must provide some type of
reasonable accommodation such as job restructuring but may not exclude
an individual with a disability who is satisfactorily performing a jobs
essential functions.
Q. Can an employer establish specific attendance
and leave policies?
A. An employer can establish attendance and leave
policies that are uniformly applied to all employees, regardless of
disability, but may not refuse leave needed by an employee with a
disability if other employees get such leave. An employer also may be
required to make adjustments in leave policy as a reasonable
accommodation. The employer is not obligated to provide additional paid
leave, but accommodations may include leave flexibility and unpaid
leave.
A uniformly applied leave policy does not violate
the ADA because it has a more severe effect on an individual because of
his/her disability. However, if an individual with a disability requests
a modification of such a policy as a reasonable accommodation, an
employer may be required to provide it, unless it would impose an undue
hardship.
Q. Can an employer consider health and safety
when deciding whether to hire an applicant or retain an employee with a
disability?
A. Yes. The ADA permits employers to establish
qualification standards that will exclude individuals who pose a direct
threat -- i.e., a significant risk of substantial harm -- to the health
or safety of the individual or of others, if that risk cannot be
eliminated or reduced below the level of a oedirect threatî by
reasonable accommodation. However, an employer may not simply assume
that a threat exists; the employer must establish through objective,
medically supportable methods that there is significant risk that
substantial harm could occur in the workplace. By requiring employers to
make individualized judgments based on reliable medical or other
objective evidence rather than on generalizations, ignorance, fear,
patronizing attitudes, or stereotypes, the ADA recognizes the need to
balance the interests of people with disabilities against the legitimate
interests of employers in maintaining a safe workplace.
Q. Are applicants or employees who are currently
illegally using drugs covered by the ADA?
A. No. Individuals who currently engage in the
illegal use of drugs are specifically excluded from the definition of a
"qualified individual with a disability" protected by the ADA when the
employer takes action on the basis of their drug use.
Q. Is testing for the illegal use of drugs
permissible under the ADA?
A. Yes. A test for the illegal use of drugs is not
considered a medical examination under the ADA; therefore, employers may
conduct such testing of applicants or employees and make employment
decisions based on the results. The ADA does not encourage, prohibit, or
authorize drug tests.
If the results of a drug test reveal the presence of
a lawfully prescribed drug or other medical information, such
information must be treated as a confidential medical record.
Q. Are alcoholics covered by the ADA?
A. Yes. While a current illegal user of drugs is not
protected by the ADA if an employer acts on the basis of such use, a
person who currently uses alcohol is not automatically denied
protection. An alcoholic is a person with a disability and is protected
by the ADA if s/he is qualified to perform the essential functions of
the job. An employer may be required to provide an accommodation to an
alcoholic. However, an employer can discipline, discharge or deny
employment to an alcoholic whose use of alcohol adversely affects job
performance or conduct. An employer also may prohibit the use of alcohol
in the workplace and can require that employees not be under the
influence of alcohol.
Q. Does the ADA override Federal and State health
and safety laws?
A. The ADA does not override health and safety
requirements established under other Federal laws even if a standard
adversely affects the employment of an individual with a disability. If
a standard is required by another Federal law, an employer must comply
with it and does not have to show that the standard is job related and
consistent with business necessity. For example, employers must conform
to health and safety requirements of the U.S. Occupational Safety and
Health Administration. However, an employer still has the obligation
under the ADA to consider whether there is a reasonable accommodation,
consistent with the standards of other Federal laws, that will prevent
exclusion of qualified individuals with disabilities who can perform
jobs without violating the standards of those laws. If an employer can
comply with both the ADA and another Federal law, then the employer must
do so.
The ADA does not override State or local laws
designed to protect public health and safety, except where such laws
conflict with the ADA requirements. If there is a State or local law
that would exclude an individual with a disability from a particular job
or profession because of a health or safety risk, the employer still
must assess whether a particular individual would pose a "direct threat"
to health or safety under the ADA standard. If such a "direct threat"
exists, the employer must consider whether it could be eliminated or
reduced below the level of a "direct threat" by reasonable
accommodation. An employer cannot rely on a State or local law that
conflicts with ADA requirements as a defense to a charge of
discrimination.
Q. How does the ADA affect workers' compensation
programs?
A. Only injured workers who meet the ADA's
definition of an "individual with a disability" will be considered
disabled under the ADA, regardless of whether they satisfy criteria for
receiving benefits under workers' compensation or other disability laws.
A worker also must be "qualified" (with or without reasonable
accommodation) to be protected by the ADA. Work-related injuries do not
always cause physical or mental impairments severe enough to
"substantially limit" a major life activity. Also, many on-the-job
injuries cause temporary impairments which heal within a short period of
time with little or no long-term or permanent impact. Therefore, many
injured workers who qualify for benefits under workers' compensation or
other disability benefits laws may not be protected by the ADA. An
employer must consider work-related injuries on a case-by-case basis to
know if a worker is protected by the ADA.
An employer may not inquire into an applicant's
workers' compensation history before making a conditional offer of
employment. After making a conditional job offer, an employer may
inquire about a person's workers compensation history in a medical
inquiry or examination that is required of all applicants in the same
job category. However, even after a conditional offer has been made, an
employer cannot require a potential employee to have a medical
examination because a response to a medical inquiry (as opposed to
results from a medical examination) shows a previous on-the-job injury
unless all applicants in the same job category are required to have an
examination. Also, an employer may not base an employment decision on
the speculation that an applicant may cause increased workers'
compensation costs in the future. However, an employer may refuse to
hire, or may discharge an individual who is not currently able to
perform a job without posing a significant risk of substantial harm to
the health or safety of the individual or others, if the risk cannot be
eliminated or reduced by reasonable accommodation.
An employer may refuse to hire or may fire a person
who knowingly provides a false answer to a lawful post-offer inquiry
about his/her condition or worker's compensation history.
An employer also may submit medical information and
records concerning employees and applicants (obtained after a
conditional job offer) to state workers' compensation offices and
"second injury" funds without violating ADA confidentiality
requirements.
Q. What is discrimination based on "relationship
or association" under the ADA?
A. The ADA prohibits discrimination based on
relationship or association in order to protect individuals from actions
based on unfounded assumptions that their relationship to a person with
a disability would affect their job performance, and from actions caused
by bias or misinformation concerning certain disabilities. For example,
this provision would protect a person whose spouse has a disability from
being denied employment because of an employer's unfounded assumption
that the applicant would use excessive leave to care for the spouse. It
also would protect an individual who does volunteer work for people with
AIDS from a discriminatory employment action motivated by that
relationship or association.
Q. How are the employment provisions enforced?
A. The employment provisions of the ADA are enforced
under the same procedures now applicable to race, color, sex, national
origin, and religious discrimination under title VII of the Civil Rights
Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints
regarding actions that occurred on or after July 26, 1992, may be filed
with the Equal Employment Opportunity Commission or designated State
human rights agencies. Available remedies will include hiring,
reinstatement, promotion, back pay, front pay, restored benefits,
reasonable accommodation, attorneys' fees, expert witness fees, and
court costs. Compensatory and punitive damages also may be available in
cases of intentional discrimination or where an employer fails to make a
good faith effort to provide a reasonable accommodation.
Q. What financial assistance is available to
employers to help them make reasonable accommodations and comply with
the ADA?
A. A special tax credit is available to help smaller
employers make accommodations required by the ADA. An eligible small
business may take a tax credit of up to $5,000 per year for
accommodations made to comply with the ADA. The credit is available for
one-half the cost of "eligible access expenditures" that are more than
$250 but less than $10,250.
A full tax deduction, up to $15,000 per year, also
is available to any business for expenses of removing qualified
architectural or transportation barriers. Expenses covered include costs
of removing barriers created by steps, narrow doors, inaccessible
parking spaces, restroom facilities, and transportation vehicles.
Information about the tax credit and the tax deduction can be obtained
from a local IRS office, or by contacting the Office of Chief Counsel,
Internal Revenue Service.
Tax credits are available under the Targeted Jobs
Tax Credit Program (TJTCP) for employers who hire individuals with
disabilities referred by State or local vocational rehabilitation
agencies, State Commissions on the Blind, or the U.S. Department of
Veterans Affairs, and certified by a State Employment Service. Under the
TJTCP, a tax credit may be taken for up to 40 percent of the first
$6,000 of first-year wages of a new employee with a disability. This
program must be reauthorized each year by Congress. Further information
about the TJTCP can be obtained from the State Employment Services or
from State Governors' Committees on the Employment of People with
Disabilities.
Q. What are an employer's recordkeeping
requirements under the employment provisions of the ADA?
A. An employer must maintain records such as
application forms submitted by applicants and other records related to
hiring, requests for reasonable accommodation, promotion, demotion,
transfer, lay-off or termination, rates of pay or other terms of
compensation, and selection for training or apprenticeship for one year
after making the record or taking the action described (whichever occurs
later). If a charge of discrimination is filed or an action is brought
by EEOC, an employer must save all personnel records related to the
charge until final disposition of the charge.
Q. Does the ADA require that an employer post a
notice explaining its requirements?
A. The ADA requires that employers post a notice
describing the provisions of the ADA. It must be made accessible, as
needed, to individuals with disabilities. A poster is available from
EEOC summarizing the requirements of the ADA and other Federal legal
requirements for nondiscrimination for which EEOC has enforcement
responsibility. EEOC also provides guidance on making this information
available in accessible formats for people with disabilities.
Q. What resources does the Equal Employment
Opportunity Commission have available to help employers and people with
disabilities understand and comply with the employment requirements of
the ADA?
A. The Equal Employment Opportunity Commission has
developed several resources to help employers and people with
disabilities understand and comply with the employment provisions of the
ADA.
Resources include:
A Technical Assistance Manual that provides "how-to"
guidance on the employment provisions of the ADA as well as a resource
directory to help individuals find specific information.
A variety of brochures, booklets, and fact sheets.
For information on how to contact the Equal
Employment Opportunity Commission, see page 30.
State and Local Governments
Q. Does the ADA apply to State and local
governments?
A. Title II of the ADA prohibits discrimination
against qualified individuals with disabilities in all programs,
activities, and services of public entities. It applies to all State and
local governments, their departments and agencies, and any other
instrumentalities or special purpose districts of State or local
governments. It clarifies the requirements of section 504 of the
Rehabilitation Act of 1973 for public transportation systems that
receive Federal financial assistance, and extends coverage to all public
entities that provide public transportation, whether or not they receive
Federal financial assistance. It establishes detailed standards for the
operation of public transit systems, including commuter and intercity
rail (AMTRAK).
Q. When do the requirements for State and local
governments become effective?
A. In general, they became effective on January 26,
1992.
Q. How does title II affect participation in a
State or local government's programs, activities, and services?
A. A state or local government must eliminate any
eligibility criteria for participation in programs, activities, and
services that screen out or tend to screen out persons with
disabilities, unless it can establish that the requirements are
necessary for the provision of the service, program, or activity. The
State or local government may, however, adopt legitimate safety
requirements necessary for safe operation if they are based on real
risks, not on stereotypes or generalizations about individuals with
disabilities. Finally, a public entity must reasonably modify its
policies, practices, or procedures to avoid discrimination. If the
public entity can demonstrate that a particular modification would
fundamentally alter the nature of its service, program, or activity, it
is not required to make that modification.
Q. Does title II cover a public entity's
employment policies and practices?
A. Yes. Title II prohibits all public entities,
regardless of the size of their work force, from discriminating in
employment against qualified individuals with disabilities. In addition
to title II's employment coverage, title I of the ADA and section 504 of
the Rehabilitation Act of 1973 prohibit employment discrimination
against qualified individuals with disabilities by certain public
entities
Q. What changes must a public entity make to its
existing facilities to make them accessible?
A. A public entity must ensure that individuals with
disabilities are not excluded from services, programs, and activities
because existing buildings are inaccessible. A State or local
government's programs, when viewed in their entirety, must be readily
accessible to and usable by individuals with disabilities. This
standard, known as "program accessibility," applies to facilities of a
public entity that existed on January 26, 1992. Public entities do not
necessarily have to make each of their existing facilities accessible.
They may provide program accessibility by a number of methods including
alteration of existing facilities, acquisition or construction of
additional facilities, relocation of a service or program to an
accessible facility, or provision of services at alternate accessible
sites.
Q. When must structural changes be made to attain
program accessibility?
A. Structural changes needed for program
accessibility must be made as expeditiously as possible, but no later
than January 26, 1995. This three-year time period is not a grace
period; all alterations must be accomplished as expeditiously as
possible. A public entity that employs 50 or more persons must have
developed a transition plan by July 26, 1992, setting forth the steps
necessary to complete such changes.
Q. What is a self-evaluation?
A. A self-evaluation is a public entity's assessment
of its current policies and practices. The self-evaluation identifies
and corrects those policies and practices that are inconsistent with
title II's requirements. All public entities must complete a
self-evaluation by January 26, 1993. A public entity that employs 50 or
more employees must retain its self-evaluation for three years. Other
public entities are not required to retain their self-evaluations, but
are encouraged to do so because these documents evidence a public
entity's good faith efforts to comply with title II's requirements.
Q. What does title II require for new
construction and alterations?
A. The ADA requires that all new buildings
constructed by a State or local government be accessible. In addition,
when a State or local government undertakes alterations to a building,
it must make the altered portions accessible.
Q. How will a State or local government know that
a new building is accessible?
A. A State or local government will be in compliance
with the ADA for new construction and alterations if it follows either
of two accessibility standards. It can choose either the Uniform Federal
Accessibility Standards or the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities, which is the
standard that must be used for public accommodations and commercial
facilities under title III of the ADA. If the State or local government
chooses the ADA Accessibility Guidelines, it is not entitled to the
elevator exemption (which permits certain private buildings under three
stories or under 3,000 square feet per floor to be constructed without
an elevator).
Q. What requirements apply to a public entity's
emergency telephone services, such as 911?
A. State and local agencies that provide emergency
telephone services must provide "direct access" to individuals who rely
on a TDD or computer modem for telephone communication. Telephone access
through a third party or through a relay service does not satisfy the
requirement for direct access. Where a public entity provides 911
telephone service, it may not substitute a separate seven-digit
telephone line as the sole means for access to 911 services by nonvoice
users. A public entity may, however, provide a separate seven-digit line
for the exclusive use of nonvoice callers in addition to providing
direct access for such calls to its 911 line.
Q. Does title II require that telephone emergency
service systems be compatible with all formats used for nonvoice
communications?
A. No. At present, telephone emergency services must
only be compatible with the Baudot format. Until it can be technically
proven that communications in another format can operate in a reliable
and compatible manner in a given telephone emergency environment, a
public entity would not be required to provide direct access to computer
modems using formats other than Baudot.
Q. How will the ADA's requirements for State and
local governments be enforced?
A. Private individuals may bring lawsuits to enforce
their rights under title II and may receive the same remedies as those
provided under section 504 of the Rehabilitation Act of 1973, including
reasonable attorney's fees. Individuals may also file complaints with
eight designated Federal agencies, including the Department of Justice
and the Department of Transportation.
Public Accommodations
Q. What are public accommodations?
A. A public accommodation is a private entity that
owns, operates, leases, or leases to, a place of public accommodation.
Places of public accommodation include a wide range of entities, such as
restaurants, hotels, theaters, doctors' offices, pharmacies, retail
stores, museums, libraries, parks, private schools, and day care
centers. Private clubs and religious organizations are exempt from the
ADA's title III requirements for public accommodations.
Q. Will the ADA have any effect on the
eligibility criteria used by public accommodations to determine who may
receive services?
A. Yes. If a criterion screens out or tends to
screen out individuals with disabilities, it may only be used if
necessary for the provision of the services. For instance, it would be a
violation for a retail store to have a rule excluding all deaf persons
from entering the premises, or for a movie theater to exclude all
individuals with cerebral palsy. More subtle forms of discrimination are
also prohibited. For example, requiring presentation of a driver's
license as the sole acceptable means of identification for purposes of
paying by check could constitute discrimination against individuals with
vision impairments. This would be true if such individuals are
ineligible to receive licenses and the use of an alternative means of
identification is feasible.
Q. Does the ADA allow public accommodations to
take safety factors into consideration in providing services to
individuals with disabilities?
A. The ADA expressly provides that a public
accommodation may exclude an individual, if that individual poses a
direct threat to the health or safety of others that cannot be mitigated
by appropriate modifications in the public accommodation's policies or
procedures, or by the provision of auxiliary aids. A public
accommodation will be permitted to establish objective safety criteria
for the operation of its business; however, any safety standard must be
based on objective requirements rather than stereotypes or
generalizations about the ability of persons with disabilities to
participate in an activity.
Q. Are there any limits on the kinds of
modifications in policies, practices, and procedures required by the
ADA?
A. Yes. The ADA does not require modifications that
would fundamentally alter the nature of the services provided by the
public accommodation. For example, it would not be discriminatory for a
physician specialist who treats only burn patients to refer a deaf
individual to another physician for treatment of a broken limb or
respiratory ailment. To require a physician to accept patients outside
of his or her specialty would fundamentally alter the nature of the
medical practice.
Q. What kinds of auxiliary aids and services are
required by the ADA to ensure effective communication with individuals
with hearing or vision impairments?
A. Appropriate auxiliary aids and services may
include services and devices such as qualified interpreters, assistive
listening devices, notetakers, and written materials for individuals
with hearing impairments; and qualified readers, taped texts, and
Brailled or large print materials for individuals with vision
impairments.
Q. Are there any limitations on the ADA's
auxiliary aids requirements?
A. Yes. The ADA does not require the provision of
any auxiliary aid that would result in an undue burden or in a
fundamental alteration in the nature of the goods or services provided
by a public accommodation. However, the public accommodation is not
relieved from the duty to furnish an alternative auxiliary aid, if
available, that would not result in a fundamental alteration or undue
burden. Both of these limitations are derived from existing regulations
and caselaw under section 504 of the Rehabilitation Act and are to be
determined on a case-by-case basis.
Q. Will restaurants be required to have brailled
menus?
A. No, not if waiters or other employees are made
available to read the menu to a blind customer.
Q. Will a clothing store be required to have
brailled price tags?
A. No, not if sales personnel could provide price
information orally upon request.
Q. Will a bookstore be required to maintain a
sign language interpreter on its staff in order to communicate with deaf
customers?
A. No, not if employees communicate by pen and
notepad when necessary.
Q. Are there any limitations on the ADA's barrier
removal requirements for existing facilities?
A. Yes. Barrier removal need be accomplished only
when it is "readily achievable" to do so.
Q. What does the term "readily achievable" mean?
A. It means "easily accomplishable and able to be
carried out without much difficulty or expense."
Q. What are examples of the types of
modifications that would be readily achievable in most cases?
A. Examples include the simple ramping of a few
steps, the installation of grab bars where only routine reinforcement of
the wall is required, the lowering of telephones, and similar modest
adjustments.
Q. Will businesses need to rearrange furniture
and display racks?
A. Possibly. For example, restaurants may need to
rearrange tables and department stores may need to adjust their layout
of racks and shelves in order to permit access to wheelchair users.
Q. Will businesses need to install elevators?
A. Businesses are not required to retrofit their
facilities to install elevators unless such installation is readily
achievable, which is unlikely in most cases.
Q. When barrier removal is not readily
achievable, what kinds of alternative steps are required by the ADA?
A. Alternatives may include such measures as
in-store assistance for removing articles from inaccessible shelves,
home delivery of groceries, or coming to the door to receive or return
dry cleaning.
Q. Must alternative steps be taken without regard
to cost?
A. No, only readily achievable alternative steps
must be undertaken.
Q. How is "readily achievable" determined in a
multisite business?
A. In determining whether an action to make a public
accommodation accessible would be "readily achievable," the overall size
of the parent corporation or entity is only one factor to be considered.
The ADA also permits consideration of the financial resources of the
particular facility or facilities involved and the administrative or
fiscal relationship of the facility or facilities to the parent entity.
Q. Who has responsibility for ADA compliance in
leased places of public accommodation, the landlord or the tenant?
A. The ADA places the legal obligation to remove
barriers or provide auxiliary aids and services on both the landlord and
the tenant. The landlord and the tenant may decide by lease who will
actually make the changes and provide the aids and services, but both
remain legally responsible.
Q. What does the ADA require in new construction?
A. The ADA requires that all new construction of
places of public accommodation, as well as of "commercial facilities"
such as office buildings, be accessible. Elevators are generally not
required in facilities under three stories or with fewer than 3,000
square feet per floor, unless the building is a shopping center or mall;
the professional office of a health care provider; a terminal, depot, or
other public transit station; or an airport passenger terminal.
Q. Is it expensive to make all newly constructed
places of public accommodation and commercial facilities accessible?
A. The cost of incorporating accessibility features
in new construction is less than one percent of construction costs. This
is a small price in relation to the economic benefits to be derived from
full accessibility in the future, such as increased employment and
consumer spending and decreased welfare dependency.
Q. Must every feature of a new facility be
accessible?
A. No, only a specified number of elements such as
parking spaces and drinking fountains must be made accessible in order
for a facility to be "readily accessible." Certain nonoccupiable spaces
such as elevator pits, elevator penthouses, and piping or equipment
catwalks need not be accessible.
Q. What are the ADA requirements for altering
facilities?
A. All alterations that could affect the usability
of a facility must be made in an accessible manner to the maximum extent
feasible. For example, if during renovations a doorway is being
relocated, the new doorway must be wide enough to meet the new
construction standard for accessibility. When alterations are made to a
primary function area, such as the lobby of a bank or the dining area of
a cafeteria, an accessible path of travel to the altered area must also
be provided. The bathrooms, telephones, and drinking fountains serving
that area must also be made accessible. These additional accessibility
alterations are only required to the extent that the added accessibility
costs do not exceed 20% of the cost of the original alteration.
Elevators are generally not required in facilities under three stories
or with fewer than 3,000 square feet per floor, unless the building is a
shopping center or mall; the professional office of a health care
provider; a terminal, depot, or other public transit station; or an
airport passenger terminal.
Q. Does the ADA permit an individual with a
disability to sue a business when that individual believes that
discrimination is about to occur, or must the individual wait for the
discrimination to occur?
A. The ADA public accommodations provisions permit
an individual to allege discrimination based on a reasonable belief that
discrimination is about to occur. This provision, for example, allows a
person who uses a wheelchair to challenge the planned construction of a
new place of public accommodation, such as a shopping mall, that would
not be accessible to individuals who use wheelchairs. The resolution of
such challenges prior to the construction of an inaccessible facility
would enable any necessary remedial measures to be incorporated in the
building at the planning stage, when such changes would be relatively
inexpensive.
Q. How does the ADA affect existing State and
local building codes?
A. Existing codes remain in effect. The ADA allows
the Attorney General to certify that a State law, local building code,
or similar ordinance that establishes accessibility requirements meets
or exceeds the minimum accessibility requirements for public
accommodations and commercial facilities. Any State or local government
may apply for certification of its code or ordinance. The Attorney
General can certify a code or ordinance only after prior notice and a
public hearing at which interested people, including individuals with
disabilities, are provided an opportunity to testify against the
certification.
Q. What is the effect of certification of a State
or local code or ordinance?
A. Certification can be advantageous if an entity
has constructed or altered a facility according to a certified code or
ordinance. If someone later brings an enforcement proceeding against the
entity, the certification is considered "rebuttable evidence" that the
State law or local ordinance meets or exceeds the minimum requirements
of the ADA. In other words, the entity can argue that the construction
or alteration met the requirements of the ADA because it was done in
compliance with the State or local code that had been certified.
Q. When are the public accommodations provisions
effective?
A. In general, they became effective on January 26,
1992.
Q. How will the public accommodations provisions
be enforced?
A. Private individuals may bring lawsuits in which
they can obtain court orders to stop discrimination. Individuals may
also file complaints with the Attorney General, who is authorized to
bring lawsuits in cases of general public importance or where a
oepattern o practiceî of discrimination is alleged. In these cases, the
Attorney General may seek monetary damages and civil penalties. Civil
penalties may not exceed $50,000 for a first violation or $100,000 for
any subsequent violation.
Miscellaneous
Q. Is the Federal government covered by the ADA?
A. The ADA does not cover the executive branch of
the Federal government. The executive branch continues to be covered by
title V of the Rehabilitation Act of 1973, which prohibits
discrimination in services and employment on the basis of handicap and
which is a model for the requirements of the ADA. The ADA, however, does
cover Congress and other entities in the legislative branch of the
Federal government.
Q. Does the ADA cover private apartments and
private homes?
A. The ADA does not cover strictly residential
private apartments and homes. If, however, a place of public
accommodation, such as a doctor's office or day care center, is located
in a private residence, those portions of the residence used for that
purpose are subject to the ADA's requirements.
Q. Does the ADA cover air transportation?
A. Discrimination by air carriers in areas other
than employment is not covered by the ADA but rather by the Air Carrier
Access Act (49 U.S.C. 1374 (c)).
Q. What are the ADA's requirements for public
transit buses?
A. The Department of Transportation has issued
regulations mandating accessible public transit vehicles and facilities.
The regulations include requirements that all new fixed-route, public
transit buses be accessible and that supplementary paratransit services
be provided for those individuals with disabilities who cannot use
fixed-route bus service. For information on how to contact the
Department of Transportation, see page 30.
Q. How will the ADA make telecommunications
accessible?
A. The ADA requires the establishment of telephone
relay services for individuals who use telecommunications devices for
deaf persons (TDD's) or similar devices. The Federal Communications
Commission has issued regulations specifying standards for the operation
of these services.
Q. Are businesses entitled to any tax benefit to
help pay for the cost of compliance?
A. As amended in 1990, the Internal Revenue Code
allows a deduction of up to $15,000 per year for expenses associated
with the removal of qualified architectural and transportation barriers.
The 1990 amendment also permits eligible small businesses to receive a
tax credit for certain costs of compliance with the ADA. An eligible
small business is one whose gross receipts do not exceed $1,000,000 or
whose workforce does not consist of more than 30 full-time workers.
Qualifying businesses may claim a credit of up to 50 percent of eligible
access expenditures that exceed $250 but do not exceed $10,250. Examples
of eligible access expenditures include the necessary and reasonable
costs of removing architectural, physical, communications, and
transportation barriers; providing readers, interpreters, and other
auxiliary aids; and acquiring or modifying equipment or devices.
Telephone Numbers for ADA
Information
This list contains the telephone numbers of Federal
agencies that are responsible for providing information to the public
about the Americans with Disabilities Act and organizations that have
been funded by the Federal government to provide information through
staffed information centers. The agencies and organizations listed are
sources for obtaining information about the law's requirements and
informal guidance in understanding and complying with the ADA.
ADA Information Line
U.S. Department of Justice
For ADA documents and questions
800-514-0301 (voice)
800-514-0383 (TDD)
Equal Employment Opportunity Commission
For ADA documents
800-669-3362 (voice)
800-800-3302 (TDD)
For ADA questions
800-669-4000 (voice)
800-669-6820 (TDD)
U.S. Department of Transportation
ADA documents and information
202-366-1656 (voice)
202-366-4567 (TDD)
ADA legal questions
202-366-1936 (voice)
TDD: use relay service
Federal Communications Commission
202-418-0190 (voice)
202-418-2555 (TDD)
Architectural and Transportation Barriers
Compliance Board
800-872-2253 (voice)
800-993-2822 (TDD)
Job Accommodation Network
800-526-7234 (voice)
800-526-7234 (TDD)
President's Committee on Employment of People
with Disabilities
202-376-6200 (voice)
202-376-6205 (TDD)
U.S. Department of Education
Regional Disability and Business Technical Assistance Centers
Call automatically connects to your regional center
800-949-4232 (voice)
800-949-4232 (TDD)
Addresses for ADA Information
U.S. Department of Justice
Civil Rights Division
Disability Rights Section
P.O. Box 66738
Washington, DC 20035-6738
U.S. Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507
U.S. Department of Transportation
Federal Transit Administration
400 Seventh Street, SW
Washington, DC 20590
Architectural and Transportation Barriers Compliance
Board
1331 F Street, NW Suite 1000
Washington, DC 20004-1111
Federal Communications Commission
1919 M Street, NW
Washington, DC 20554
Note: Reproduction of this document is
encouraged.