A Primer on the Americans with Disabilities Act(No, seriously…you need to know this.)
I recently received a call from the daughter of a gentleman who was looking to have his will drawn up. She was calling instead of him because he was completely hearing impaired. I told her I’d be delighted to meet with him. She said, “Great. He’ll be there on Monday at 2 pm, and he’ll need an interpreter.”
I hung up the phone and was like, “Wait…what? She sounded so matter-of-fact about that. Is it up to me to have an interpreter here?” Answer: Yes. “And I guess I’ll need to find the person and pay for their services?” Answer: Right again.
Because I offer a service to the general public, I must comply with certain provisions of the Americans with Disabilities Act (ADA), one of which is providing an interpreter if someone with a hearing impairment would like to discuss hiring me.
See?? This is why I write this blog! I’m a lawyer, and I didn’t even know this. Did you?! Here’s the top-level snapshot of what you (lawyer or not) need to know about the Americans With Disabilities Act (ADA). It’s a pretty cool set of laws.
What does the ADA do?
The ADA became law in 1990 and, stated simply, it prohibits discrimination against the approximately 54 million Americans with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.
To boil it down a little further, for purposes of our discussion, think of the ADA as doing 2 primary things for folks who have a disability:
Protection against discrimination in the workplace. The ADA is designed to help people with disabilities access the same employment opportunities and benefits available to people without disabilities. Employers (with 15 or more employees) have to provide reasonable accommodations to qualified applicants or employees. The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing this part of the law.
Protection with respect to procuring publicly offered goods or services. The ADA states, “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities….of any place of public accommodation…..” Examples of public accommodations include privately-owned and operated facilities such as hotels, restaurants, retail stores, doctors’ offices, law firms, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, and so on. This part of the law sets minimum standards for accessibility in new construction and requires removing certain barriers in existing buildings where it is easy to do so without much difficulty or expense. The law also directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities. (I.e., taking steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities. Hence, my obligation to provide a sign language interpreter!) The U.S. Department of Justice enforces this part of the law.
So what’s a “reasonable accommodation” or “reasonable modification”?
A reasonable accommodation is assistance or modifications to a position or workplace that enable an employee to perform their job despite a disability. Under the ADA, employers must provide reasonable accommodations to qualified employees with disabilities unless doing so would impose an undue hardship. Qualified employees are those who hold the necessary degrees, skills, and experience for the job and who can perform its essential functions, with or without an accommodation.
Examples of accommodations include:
making existing facilities usable by disabled employees—for example, by modifying the height of desks and equipment, installing computer screen magnifiers, or installing telecommunications for the deaf
restructuring jobs—for example, allowing a ten-hour/four-day workweek so that a worker can receive weekly medical treatments
modifying exams and training material—for example, allowing more time for taking an exam, or allowing it to be taken orally instead of in writing
providing a reasonable amount of additional unpaid leave for medical treatment
hiring readers or interpreters to assist an employee, and
transferring an employee to the same job in another location to obtain better medical care.
These are just a few possible accommodations. The possibilities are limited only by an employee’s and employer’s imaginations—and the reality that one or more of these accommodations might be financially impossible in a particular workplace.
Okay, so what does “without much difficulty or expense” mean?
The ADA does not require employers to make accommodations that would cause them an undue hardship: significant difficulty or expense.
To show that a particular accommodation would present an undue hardship, it’s up to the employer to show that it was too costly, extensive, or disruptive to be adopted in that workplace.
Here are some of the factors that will determine whether a particular accommodation presents an “undue hardship” on a particular employer:
the nature and cost of the accommodation
the financial resources of the employer—a large employer, obviously, reasonably being asked to foot a larger bill for accommodations than a mom-and-pop business
the nature of the business, including size, composition, and structure, and
accommodation costs already incurred in a workplace.
Finally, what does “disability” mean under the ADA?
The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.
“Major life activities” are considered functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, sitting, standing, bending, communicating, lifting, reaching, sleeping, eating, reading, and mental/emotional processes such as thinking, concentrating, and interacting with others.
The definition also includes the operation of major bodily functions, such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
So whether you are an employer or whether you work for a company, keep in mind that not only can you not discriminate against someone with a disability, but you must, in some cases, go above and beyond to provide and interview process and/or job setting that accommodates them so that they can perform their job in a more comfortable and efficient way. And thank goodness for that. The ADA aims to ensure that folks with certain disabilities can operate on a more level playing field with everyone else. Makes sense to me.
I covered this topic in a recent podcast episode. Watch the episode here.
Do you own a business? The ADA applies to you! I put together a one page Business Owner’s ADA Survival Checklist for you! Download it here.
Additional Resources
If you want to go deeper, these are solid, trustworthy starting points:
ADA.gov – Official federal guidance, FAQs, and complaint informationhttps://www.ada.gov
Job Accommodation Network (JAN) – Practical examples of workplace accommodationshttps://askjan.org
U.S. Department of Justice – ADA Title III (Businesses & Public Accommodations)https://www.ada.gov/resources/title-iii/
EEOC ADA Overview (Employment-specific guidance)https://www.eeoc.gov/laws/guidance/americans-disabilities-act
