U.S. Equal Employment Opportunity Commission
U.S. Department of Justice
Civil Rights Division
Contents
Introduction
Employment
State and Local Governments
Public Accommodations
Miscellaneous
Resources
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 (TTY)
Additional ADA resources are listed in the Resources section.
September 2005
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 "essential functions" 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 "direct threat" 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 "fitness" 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 of
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 of "direct threat" 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.
Additional information discussing the tax credits and deductions is
contained in the Department of Justice's ADA Tax Incentive Packet for
Businesses available from the ADA Information Line.
Information about the tax credit and tax deduction can also be obtained
from a local IRS office, or by contacting the Office of Chief Counsel,
Internal Revenue Service.
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:
Here is information on how to contact the Equal Employment Opportunity Commission.
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 inpairments?
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 $55,000 for a first violation or $110,000 for any subsequent
violation.
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. Here's information on how to contact the Department of Transportation.
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.
Resources
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 at
U.S. Department of Justice
800-514-0301 (voice)
800-514-0383 (TTY)
U.S. Equal Employment Opportunity Commission
For publications:
800-669-3362 (voice)
800-800-3302 (TTY)
For questions:
800-669-4000 (voice)
800-669-6820 (TTY)
U.S. Department of Transportation's ADA Assistance Line
888-446-4511 (voice)
TTY: use relay service
www.fta.dot.gov/civilrights/civil_rights_2360.htm
U.S. Department of Tranportation's Project Action
800-659-6428 (voice)
TTY: use relay service
Federal Communications Commission
888-225-5322 (voice)
888-835-5322 (TTY)
U.S. Architectural and Transportation Barriers Compliance Board
800-872-2253 (voice)
800-993-2822 (TTY)
U.S. Department of Labor's Job Accommodation Network
800-526-7234 (voice & TTY)
U.S. Department of Education's Regional Disability and Business Technical Assistance Centers
800-949-4232 (voice & TTY)
Addresses for ADA Information
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights Section - NYAV
Washington, DC 20530
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
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554
U.S. Architectural and Transportation Barriers Compliance Board
1331 F Street, NW Suite 1000
Washington, DC 20004-1111
This document is available in the following alternate formats for people with disabilities:
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- Electronic file on computer disk.
Note: Reproduction of this document is encouraged.
Updated September 2005