Americans with Disabilities Act

The Americans with Disabilities Act (ADA), a landmark piece of civil rights legislation, is a product of bipartisan support. Signed into law on July 26, 1990, the ADA “signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life,” declared President George H. W. Bush. Although the passage of the ADA was challenged by some legislators who considered its supporters a “sodomy lobby,” the legislation’s history demonstrates an unwavering commitment of the Congress to the more than 43 million people with disabilities in the United States. The ADA protects those who encounter various forms of discrimination, exclusion, and segregation because of their disabilities and gives them “the right to participate in the cultural, economic, educational, political and social mainstream,” said Senators Bob Dole and Tom Harkin in celebration of the ADA’s tenth anniversary.

The language in the ADA and in subsequent judicial decisions defines what the law covers and to whom the law applies. As psychologists increasingly are called upon to conduct disability evaluations for insurance compensation, academic accommodations, work modifications, and federal income subsidies, it has become critical for psychologists to understand how and the extent to which the ADA applies to specific service populations. Key language and concepts in the ADA are fundamental to standards and requirements for many disability evaluations. This entry provides an overview of the ADA and its legislative background along with a discussion of the statutory definition of the term disability and the reasonable accommodations and modifications mandated by the ADA.

Overview of the ADA and Legislative Background

The ADA came from the civil rights movement of the 1960s and 1970s. It was modeled after the Civil Rights Act of 1964, which prohibits racial discrimination for employment and in public accommodations (e.g., hotels or restaurants). Different from the Civil Rights Act of 1964, where protection applies to people of all races, the ADA provides protection against discrimination only for those whose limitations meet the statutory definition of disability. The ADA also borrows several key definitions from an early disability rights statute, the Rehabilitation Act of 1973. These include definitions for disability, reasonable accommodation, and undue hardship.

In spite of their similarities, there are major differences between the Rehabilitation Act of 1973 and the ADA. Although both statutes are disability rights laws, the Rehabilitation Act of 1973 applies only to programs or activities receiving federal financial assistance (e.g., education, courthouses, and transportation). The ADA, on the other hand, covers public or private employment, transportation, accommodations, and telecommunications regardless of whether federal funding is involved. Also, housing, education, and air transportation are issues included in the Rehabilitation Act of 1973 that were not covered by the ADA. It is clear from the legislative history that Congress made a great effort to make the ADA consistent with the Rehabilitation Act and did not intend it to supersede its statutory predecessor.

The ADA includes five separate titles. Title I involves employment issues. It prohibits discrimination with regard to job application procedures, hiring, advancement, discharge of employees, compensation, job training, and employment privileges. Title II involves public services. Any state or local government instrumentalities, the National Railroad Passenger Corporation, and commuter authorities cannot deny people with disabilities services or participation in programs or activities available to those without disabilities. Title III concerns public accommodations (e.g., roads and sidewalks) and services operated by private entities (e.g., movie theaters and amusement parks). All such accommodations that are newly constructed must be accessible to people with disabilities. For existing facilities, architectural barriers to services must be removed if modifications are readily achievable. Title IV concerns telecommunications. Telephone relay services must be provided by telecommunication companies for people who use telecommunication devices for the deaf or other similar devices. Title V involves miscellaneous provisions that prohibit coercing, threatening, or retaliating against individuals with disabilities or those attempting to assist individuals with disabilities to assert their rights.

Definition of a Disability

One key issue that raised a substantial amount of discussion during the legislative history and after the passage of the ADA concerned the definition of disability. The definition in the ADA is similar to that of the Rehabilitation Act of 1973; disability means (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (b) a record of such an impairment, or (c) being regarded as having such an impairment.

The ADA expanded its protection not only to those currently with a disability or those with a documented record of one but also to those who are perceived falsely as having a disability. For example, a person with epilepsy might be treated adversely by his employer, because his employer believes his condition could limit his ability to perform his job. Although his condition is well managed and does not affect his job functions, this person still would be covered by the ADA.

Physical and Mental impairment

A physical or mental impairment means (a) 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, genitourinary, hemic and lymphatic, skin, and endocrine; or (b) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

While ADA covers a broad range of disabilities, including psychiatric conditions, health conditions, sensory impairments, orthopedic impairments, and learning disabilities, there are certain conditions to which ADA does not apply. Transvestites, transsexuals, bisexuals, gay identified individuals, and individuals with pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairment, other sexual behavior disorders, pyromania, compulsive gambling, kleptomania, and alcohol or drug addiction do not qualify individuals for ADA protection if they are treated adversely solely on the basis of these conditions.

In Shafer v. Preston Memorial Hospital Co., Deborah Shafer, a nurse anesthetist, sued Preston Memorial Hospital under the ADA, claiming that Preston Memorial Hospital discriminated against her on the basis of her drug addiction. Shafer was addicted to fentanyl, a Schedule II narcotic analgesic, and had diverted postoperative fentanyl for her personal use. On the day of her completion of inpatient rehabilitation treatment, Shafer was notified by the hospital that her employment was terminated. Shafer sued Preston Memorial Hospital for employment discrimination and appealed the district court’s order, which granted summary judgment for Preston Memorial Hospital. The circuit court concluded that Shafer was a current user of an illegal drug and was therefore not considered disabled under the ADA. Because of her addiction, she was not considered “otherwise qualified” under the ADA, and therefore the hospital was not held liable for discharging her from her employment.

Otherwise Qualified

The ADA protects the rights of those who are able to demonstrate that they are qualified individuals with disabilities. A “qualified individual with a disability” as applied to employment under the ADA is a person “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Essential job functions may be determined by the employer’s judgment, written job descriptions, the amount of time the person has spent performing those functions, terms of collective bargaining agreements, work experiences of previous incumbents, and experiences of current incumbents in similar positions. For example, an employer may require all secretaries to have the ability to type 75 words per minute. A person with paraplegia who applies to be a secretary but fails to meet the typing requirement is not be considered a qualified individual with a disability as long as this employer can demonstrate that this particular requirement is an essential job function and that no reasonable accommodation can be provided to modify this requirement.

In education settings, a person with a disability must be able to fulfill the essential requirements of the program, with or without the provision of reasonable accommodations. Sherrie Lynn Zukle was a medical student at Davis School of Medicine at the University of California. After receiving unsatisfactory performance reports for several semesters, Zukle was placed on academic probation and referred for an evaluation, through which Zukle was found to suffer a learning disability. She consequently received academic accommodations, including extra time on exams and note-taking assistance. Zukle’s subsequent academic and clinical performances remained poor in spite of her academic accommodations. She failed a clinical clerkship when she was placed on academic probation the second time and later was dismissed from the medical school. Zukle brought suit against the Regents of the University of California, claiming that she experienced educational discrimination because of her learning disability. In Zukle v. Regents of the University of California, the circuit court argued that Zukle continued to demonstrate unsatisfactory performance after she was granted academic accommodations. The court ruled that Zukle failed to meet the school’s academic standards, and her dismissal was justified. This case clarifies that accommodations do not give students with disabilities a competitive advantage over other students. Students with disabilities have to meet the same academic standards and requirements as students without disabilities.

Major Life Activities

The ADA defines major life activities as including, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, speaking, breathing, learning, walking, working, standing, sitting, and reading. A person who suffers traumatic brain injury and has difficulty with walking, memory, attention, or caring for his or her basic needs as a result would be considered a person with disability under the ADA. For example, in Pacourek v. Inland Steel Co., the plaintiff was terminated from her job because of her absences on several occasions for infertility treatment. The court determined that reproduction was a major life activity and the plaintiff was therefore covered by the ADA.

Substantial Limitations

A person is substantially limited when this person is “unable to perform a major life activity that an average person in the general population can perform” or is “significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity” as compared to the average person in the general population. For example, Casey Martin, a professional golfer, suffered a rare circulatory disorder that resulted in the malformation of his right leg and blockage of his blood flow back to his heart. His illness made walking difficult and had the potential to lead to amputation of his leg. The Professional Golf Association (PGA) insisted that walking was part of the competition on its tour, and it refused to allow Martin to use a golf cart at certain tournaments. In PGA Tour, Inc. v. Martin, Martin successfully invoked the protection of the ADA, arguing that he had a life-threatening health condition that prevented him from walking, and that the PGA should permit him to use a golf cart in order for him to compete professionally.

Mitigating Measures

Reviewing court cases involving the ADA, judicial decisions have restricted the definition of disability when considering the impact of mitigating measures on a person’s disability. For example, in Sutton v. United Air Lines, Inc., twin sisters sued United Air Lines for failure to consider them for employment as airline pilots. Both of them suffered poor vision and could not pass the required vision test without glasses. They brought suit under the ADA, claiming that their poor vision had resulted in the refusal of employment. The Supreme Court ruled that the plaintiffs should be considered when their vision was in the corrected state. Because the plaintiffs’ corrected vision was 20/20, the plaintiffs were not considered disabled, and therefore excluded from coverage under the ADA. In Murphy v. United Parcel Service, Inc., the Supreme Court also ruled that mitigating measures should be taken into consideration in determining a person’s disability. Vaughn Murphy had a blood pressure of 186/124, but, when he was properly medicated, Murphy’s blood pressure was within healthy limits. Murphy was fired from his job because he failed to satisfy the health requirement of the Department of Transportation. The Supreme Court ruled that Murphy’s hypertension was not a disability, because, according to the testimony of his physician, Murphy, when under medication, could function normally. In both cases, mitigating measures were used to determine whether a person is disabled or not. Because the plaintiffs were ruled not disabled, they were excluded from ADA coverage.

Although a person may not be considered disabled when mitigating measures are considered, some mitigating measures could be disabling and could contribute to a person’s disability. For example, negative side effects of psychiatric medication could generate adverse symptoms that may cause additional impairments. Whereas the existence of a disability does not warrant ADA protection unless it causes substantial limits to major life activities, the use of mitigating measures does not automatically exclude a person from coverage under the ADA. Substantial limits to major life activities have to be analyzed on a case-by-case basis.

Reasonable Accommodations and Modifications

The ADA includes reasonable accommodations or modifications as part of the nondiscrimination mandate. Reasonable accommodations are changes in the work or education environment or in the way things are customarily done that would enable a qualified individual with a disability to enjoy educational and employment opportunities equal to those of individuals without disabilities. Reasonable accommodations should be provided without altering the essential components of the academic or job requirements. In classroom settings, reasonable accommodations may include modifications to the delivery methods of instruction (e.g., captioning of a class lecture vs. oral presentation), modifications to examinations (e.g., extended testing time), or flexibility in attendance policies. In cases of employment, reasonable accommodations may include, for example, modifications to a work schedule, changes in ways work is performed, use of communicative devices (e.g., teletypewriters), or modifications to the work environment.

Concerning modifications to the work environment, both Title I and Title III of the ADA include statutory language that prohibits discrimination resulting from structural barriers. Title I of the ADA prohibits discrimination at the employment facility, whereas Title III of the ADA applies to public accommodations and services. The ADA requires that facilities built after January 26, 1993, be accessible and that modifications to existing public accommodations made after that date also be accessible. Alternative methods of providing services to the public are to be implemented where structural removal of barriers is not “easily achievable” because of difficulty or expense.

Accessibility requirements for public accommodations are outlined in the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG). The ADAAG is issued by the United States Architectural and Transportation Barriers Compliance Board (or Access Board), which was formed to help to establish accessibility standards for new and existing facilities. The guidelines were revised in July 2004 to maintain consistency with technology and national standards, and they are used routinely by architects. Examples of

ADAAG guidelines include the number of locations for wheelchairs at any given seating capacity, height and clearance of lavatories, signage, and visual alarms.

There are other disability rights statutes that interrelate, to various degrees, with the ADA. In addition to the Rehabilitation Act of 1973, there are, for example, the Individuals with Disabilities Education Improvement Act of 2004 (IDEIA), which applies to education rights of individuals with disabilities at elementary and secondary levels; the Family and Medical Leave Act (FMLA), which applies to employees’ rights to care for family members’ medical conditions; and the Fair Housing Act, which prohibits discrimination by the direct providers of housing against individuals because of their race, disability, religion, sex, national origin, or familial status.

References:

Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (West 1993).
Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities, 28 C.F.R., Part 1191, app A. (2004).
Colker, R. (2005). The disability pendulum: The first decade of the Americans with Disabilities Act. New York: New York University Press.
Colker, R., & Tucker, B. P. (2000). The law of disability discrimination (3rd ed.). Cincinnati, OH: Anderson.
Equal Employment Opportunity Commission Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1630 et seq. (2002).
Murphy v. United Parcel Service, Inc., PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001).
Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. Ill. 1994).
Rothstein, L. F. (1997). Disabilities and the law (2nd ed.). Danvers, MA: West Group.
Shafer v. Preston Memorial Hospital Co. 107 F.3d 274 (4th Cir. 1996).
Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999).
Zukle v. Regents of the University of California 166 F.3d 1041 (9th Cir. 1999).