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The Americans With Disabilities Act: The Basics of the Americans With Disabilities Act (Part One)

34 minutes

INTERPRETER: Hello. I'm Howard Rosenblum.

I'm here to present on the ADA, the Americans with Disabilities Act, for PEPNet. I'm a disabilities rights lawyer, and today I'm going to present on the different aspects of the ADA.

Hello. I'm here to talk about the Americans with Disabilities Act, abbreviated ADA. As many of you are generally aware of the ADA, I will go into more depth on it. I will describe the background and parts of the ADA. Let me start with some history. The Americans with Disabilities Act was passed by Congress in 1990. It started in 1992 because people had to have time to learn about how to follow the ADA. Before the ADA, there was the Rehabilitation Act of 1973. The Rehabilitation Act is similar to the ADA, but there is more information in the ADA.

The ADA is about protecting people with disabilities.

Congress gave a definition of the word "disabilities," which includes physical or mental impairments which substantially limits one or more major life activities. The ADA goes on to describe what "major life activities" means-- functions such as taking care of yourself, performing everyday manual tasks-- walking, seeing, hearing, speaking, breathing, learning, and working. That definition was given when the previous law was drafted. But recently, the ADA was amended to become the ADA Amendment Act, abbreviated ADAAA.

That act was only recently passed in 2008 by Congress. The act includes more major life activities-- eating, sleeping, standing, lifting, bending, thinking, reading, concentrating, communicating, and everyday bodily functions.

These activities are now included in the definition of "disability" under the ADA. But that is not the only definition of disability under the ADA. There is another definition of "disability" that protects people who have a record of having a disability. For example, if someone had a condition that had gone away, such as cancer, and they don't have a disability anymore, like they might have had cancer, but it was controlled or healed with medications. Cancer itself is not a disability unless it has a limiting effect on major life activities. But if a person has a record of it. That person is protected under the ADA. There is also a third category for protecting people with disabilities.

People who are regarded as having such an impairment are also protected as people with disabilities under the ADA.

Now we're going to talk about employment under the ADA.

The first section is called Title I, and it relates to employment. Employment under the ADA refers to all employment in private companies, state government, local government, or not-for-profit agencies. If you work for the federal government, you are covered under the Rehabilitation Act of 1973. That aside, if you work in any private, state, or local government or nonprofit, you are covered under Title I. Understand that Title I only applies for private companies that have 15 or more full-time employees. If there are any part-time employees, the company has to calculate, based on a specific formula, how many part-time and full-time employees in a company would equal 15 or more full-time employees. If you are looking for work and wish to apply for a job, what types of rights do you have when it comes to the interview? You must have equal access to the application process. Often this just means reading directions and filling in a form.

But suppose the application process requires a telephone or the internet or a kiosk, where listening is an expected ability. Under these scenarios, the company must provide equal access to you as a deaf or hard-of-hearing person.

If they refuse to provide equal access, you may file a complaint under the ADA. It's important that if you have trouble applying for the job, you should contact the company and ask for accommodations. The same idea is true for the interview process. You have the right to request communication access for the interview. If someone calls you and invites you in for an interview, you need to tell them that you have specific access requirements and can request an interpreter or other means of communicating. Does it mean that if they provide an interpreter you will have a good chance of getting the job?

Not necessarily-- that's up to the company. It's important that you have the required qualifications for the job. The company need not hire you just because you have a disability. They would hire you if you have the skills for the job. What skills would you need? It depends on the job.

Every job has what's called "essential functions" and "marginal functions." Those are two separate things. "Essential" means important functions that are strongly associated with the job. For example, if you work in accounting or want to apply for a job in accounting, the central functions of the job would require a certain knowledge base as demonstrated by a degree in accounting or proof that you've done accounting work, like proving you know the difference between assets and liabilities or showing you know how to balance the company's books. If you can do that, you will have shown that you have the qualifications for the job or its essential functions.

"Marginal functions" might mean having to make telephone calls, do filing, or having meetings with clients. Those would be marginal functions. It depends on the company, and the company might decide that those activities are so important for the job that they be classified as essential functions.

So to recap, job descriptions include both essential and marginal functions. Essential functions are those skills that you must be able to perform. If you can't perform them with or without accommodations, it means you are probably not qualified for the job.

Now let me describe the term "reasonable accommodations."

It refers to whatever you might need to assist you in doing your job.

For example, many deaf or hard-of-hearing people need an interpreter or CART or real-time captioning services.

They might need an FM system. Maybe they need a TTY or a visual indication of incoming calls or a video phone. Many different types of equipment might be needed on the job. Those would be examples of reasonable accommodations. Understand that what is considered reasonable will depend on the cost. If you request a TTY, that wouldn't cost very much. If you request a video phone, it would depend. Would they have to revamp an entire system or install internet services? It might be, in that location, internet connectivity is impossible or impractical. That would be an example of unreasonable accommodations. However, many areas do have high-speed internet access. So it shouldn't be a problem. As another example, you might request that an interpreter be provided to help you communicate at work for staff meetings, one-on-ones, or interviews. In that case, "reasonable" would refer to the cost. Maybe having an interpreter for 40 hours a week would be unreasonable. It depends on the job. It depends on the company, too. What is reasonable for one company may not be reasonable for another company. It's based on the company's finances.

The phrase "undue hardship" refers to the cost to the company being something that the company just can't afford, in which case they are not obligated to provide the accommodation requested.

For example, if you go to work for a store with two staff members, a small mom-and-pop store, let's say, that sees only a few daily transactions, having an interpreter come in every day to assist with communications might be too much and would be considered an undue hardship for that store. On the other end of the scale, if you apply for a job at Microsoft in Seattle, Washington, that's a big company with many resources, many daily transactions, and many thousands of staff. If your job requires interacting with many departments on a daily basis, and having an interpreter is something the company can easily afford because of their large budget, that might be a reasonable accommodation for them to provide and should not create any undue hardship for the company.

Even if you apply for a job and you have the required skill for the job, you still might not be hired. You will have to interview with a number of different people, and they will pick the best person for the job. There are no quotas or affirmative action requirements under the ADA. There is no requirement for the company to hire a certain percentage of people with a given disability. No, they only need hire who's qualified for the job. So, persons with disabilities, whether they are deaf, blind, hard of hearing, or using a wheelchair, need to promote or sell themselves to the companies and show that they have the required qualifications to do the essential functions of the job.

When you work, you have many rights while you are working.

Once you have done the interview and have started working, you can request a reasonable accommodation to do your job. Understand that when you ask for reasonable accommodations, sometimes people don't understand what your needs are. So you have to educate them. They have to agree on what your needs are and what is reasonable for you and what is reasonable for the company, too.

It is an iterative process, which helps both the staff, who might be deaf, and the company come to an agreement on how best to help that person do their job and serve the company's needs, like including structural changes to the work environment, including TTY lights, video phone installation, connection to the internet, visual fire alarms, or any other equipment you might need. Reasonable accommodations also include equipment to be purchased, such as a TTY or a pager or a program you might need on your computer to communicate, like email, internet access, instant messaging, and other devices or programs. Also, for many different disabilities, not just deafness or hard of hearing, but other disabilities such as diabetes, epilepsy, and other disabilities may need scheduling flexibility. This means that if every day everyone is expected to work a full eight hours, there might be specific times for a break-- a morning break, a lunch break, and an afternoon break. That would follow the Department of Labor's rules. But some people need more breaks because of health reasons, disability reasons. They can request reasonable accommodations for system schedule flexibility.

In addition to different equipment and scheduling flexibility for reasonable accommodations, be sure to make your request in writing. It's OK just to tell them.

But it's important to have what's called a "paper trail." Make sure you have a history to show that you did make the request. This can be done by writing a letter to a supervisor asking for reasonable accommodations. You can also ask to have a form for an ADA Reasonable Accommodations Request.

If the supervisor doesn't know about the form, suggest that they contact Human Resources, or HR.

If the answer comes back no, it doesn't mean that they don't have any responsibilities. They still have to work with you to figure out what will work for both you and them. In addition to services, equipment, interpreters, whatever else you request in the form of reasonable accommodations, you can also request that you have equal rights for advancement, which means if you start working at a company at the same time someone else does and they advance up the corporate ladder before you, you might be concerned that it's because of discrimination against you because of being deaf or hard of hearing.

You have to make sure you all have the same opportunities for advancement. But you have to make sure that you meet the needs of the company. If the other person has skills that you do not have, you might have to take classes or any opportunities that the company might give you in the form of classes or off-site learning experiences. Different responsibilities give you opportunities for advancement.

Make sure you learn what the company requires and find ways to move up and make sure to work with your supervisor to figure that out.

Also, for any request that you make, the company can say it's too expensive. They would call it "undue hardship." That's their defense. Understand that only works if the cost is exorbitant, not just if it's too expensive. So you need to find out why your request was turned down.

If they say they can't afford it, ask if they can substitute something else. Suppose they can't afford an interpreter for a full day.

Maybe you can reduce the hours you use an interpreter, or maybe you could use a video relay service for teleconferencing. If they need an in-person meeting, maybe they could provide an interpreter for that limited time or use a Video Remote Interpreter, a VRI. There are many ways to provide communication access. One way might not fit you. So you have to communicate with the company or negotiate to find out how to meet both your needs and the company's needs as well.

Now we're going to talk about part II of the ADA, Public Entities, which means state and local government and all the agencies and programs they're under. The size of the government or agency doesn't matter. Remember that part I of the ADA required 15 or more full-time staff. Under part II, there is no such specific size requirement, whether there are zero staff or a large staff for ADA compliance. Also, any program or activity or service of the government must be accessible. This includes different parts of the government, not just the capital. Different agencies and departments, as well as public schools, public universities, public colleges, public museums, public parks, public hospitals are all included, For example, suppose you need to go to the Office of Public Aid, a state agency. If you ask for services from them and require communication access and they provide an interpreter in response to your request for one, that is pursuant to Title II of the ADA. For another example, if you go for a state driver's license and you have to communicate for a test, that's covered under Act II of the ADA.

Now, the government has two defenses against providing what you request. If the cost is so much that they can't afford it or might go broke, that's called an "undue burden," or if the request requires that they change the whole system, like if you want the driver's test to be given in ASL and changes have to be made or cause a fundamental alteration to happen.

Although there are states that have given their driver's license test in ASL.

So it depends on the state for what they can do. So the state or local government has two defenses-- fundamental alteration or undue burden. Otherwise, they must follow the law and provide services or access to deaf and hard-of-hearing people for any state or local government services.

Section III of the ADA refers to public accommodations. That means any private business open to the public.

There are many private businesses in the US, including stores, restaurants, motels or hotels, parks which are privately owned, private museums, private universities or colleges, private schools for children, private hospitals, movie theaters, stage theaters, banks, zoos, many different sorts. That's not an exhaustive list, but it gives you some examples. Also, its size or how many staff it has doesn't matter. If you apply for work under Title I of the ADA, they must have 15 or more employees or staff. But if you just go and visit a museum or a zoo or the movies or a play, there's no size restriction. Access must be provided pursuant to the ADA. What the business provides will depend on your disability. If you are deaf or hard of hearing, that means they will provide an interpreter or CART or an FM system or any assistive listening device. They don't have to provide just any service, only those that are reasonable. But anything provided must allow for effective communication access. You might request an interpreter, but maybe a script might suffice as effective communication. It depends upon what agreement you reach with the business. Hospitals must have full access to communication for health reasons-- interpreters or speech reading or assisted listening-- whatever you need for effective communication. The business must provide services unless they can use one of two defenses--

undue burden, meaning it's too expensive, or you asked for one option that they can't afford, like an interpreter working day and night, 24/7. That would be an example of undue burden.

Or fundamental alteration, which would require a huge change to happen, like for a museum of music, if they had to change the whole system to help deaf or hard-of-hearing people understand. That huge change might be too much for them. Those are two defenses they have. But tours or theaters or entertainment or restaurants that need to communicate must provide some access-- not any one mode in particular, but they have to provide some effective communication. Those two defenses, fundamental alteration or undue burden aside, they must provide access for people with disabilities for any of their programs or services.

Now for Title IV of the ADA, which refers to telecommunications.

That part of the ADA refers to all states and territories which provide relay systems. It started in 1992 with the requirement for TTY relay systems. That was a type of 800 number where TTY user would call the number-- each state had its own number-- and an operator would answer and be ready to order pizza, call the hospital, or call family or friends who didn't have a TTY. That was a great breakthrough for deaf people back in 1992. Since then, different technologies have given the release system increasing improvements. One of those breakthroughs came in the form of the 711 number. That meant that deaf people didn't have to dial separate state 800 numbers but instead could dial 711 anywhere in the country, which made it so much easier. TTYs weren't the only devices that could be used. They started adding pagers, internet, and IMs. Now there is a relay system for each device. You're not limited to only using TTYs. Now they've added VRS, Video Relay Systems. Deaf people don't have to be stuck typing. They can now sign naturally. That was a nice addition. And most recently is the 10-digit number. Different VRS providers, like Sorensen, Hands-On VRS, and CSD VRS, all of which might previously have had IP addresses, now have standard 10-digit numbers, just like on the telephone. That means that different video phone systems have interoperability and are able to call each other. That wraps up Title IV of the ADA.

Now we will discuss how each section of the ADA is enforced.

While it would be nice to have one federal agency to oversee and enforce all parts of the ADA, unfortunately it is regulated by many different agencies.

Title I, Employment, is regulated by the EEOC, the Equal Employment Opportunity Commission.

This is a unique agency in that you must file a complaint with the EEOC first, rather than starting with the judicial process. Generally, you must file within 180 days of the incident. Some states allow additional time. However, in order to be safe, it is recommended that you file within 180 days. Once you file, the EEOC will begin an investigation. If judicial action is necessary, they will begin that for you as well.

However, if their offices become overwhelmed with cases, they may send you a letter granting you the right to sue. This letter verifies that you have sufficient evidence to proceed. It does not guarantee that you will win your case. But it serves as a support, and allows you to begin the process.

This letter is good for 90 days, so you need to find a lawyer within that time limit, or else the letter expires, and your case is terminated.

They suggest that you start looking for a lawyer right away in order to give them as much time as possible to prepare for court. Once your lawyer has the necessary information, they can then take the steps needed to get your case to court. Postponing this process is not advised Title II, Public Entity, applies to people with disabilities who have been discriminated against by their state or local government. The majority of the cases is filed under this title go through the DOJ, the Department of Justice, while others can be filed through the DOT, the Department of Transportation. The DOT deals with discrimination issues related with transportation. This includes trains, buses, or any other transportation system provided by the government in your city or state. When filing any other discrimination complaint for an agency, service, or program offered by the government, you need to go through the Department of Justice. This process is actually quite simple. All you need to do is send a letter to the Department of Justice or fill out a form from their website, www.ada.gov. You must file within 180 days when filing with the DOJ. There are two other options available to you. One is hiring a private lawyer to help you get through this process or applying for court yourself. The deadline for filing depends on the state you live in. So it is important to research your state's requirements. Filing with either a private lawyer or the DOJ will start the steps necessary to move your case towards court. However, the DOJ will need to investigate your case first and likely be dealing with a number of other cases at the time of your submission. The private lawyer should have a smaller caseload and be able to move you through the steps more quickly. During the filing process, it is possible that the company that discriminated against you might settle. They can do this, such as providing you with an interpreter, pay a penalty, or whatever it was that you needed. Or it could go to trial, at which time a judge would decide the case, and what will happen is always difficult to predict. The same concept applies to Title III of the ADA, which covers public accommodations. If a private company discriminates against a person with a disability, the person can either file with the Department of Justice or directly with the court through a lawyer. If the DOJ investigates and finds evidence, they can sue. If none is found, the case is dropped. A lawyer can file with the court right away. Either or both are options one can take. The same thing is true for part II. Maybe the company will settle with you or fix the problem or pay a fine. Or the whole thing can go to trial.

That's for parts II and III.

For part IV, the FCC, or Federal Communications Commission, has jurisdiction over any technical issues regarding telecommunications. That includes TTYs, phone companies, 711, advanced 911 for calls going through the relay system for 911 services, and VRSes. The FCC has power over them. The FCC knows all about technical issues, and when they receive a complaint, they can investigate to see if the company is not following laws or rules and can penalize fine the phone company or VRS company. The court can also follow up on the complaint, depending upon the provider, like for relay services. VRS services have many of their own rules. So it's much better to file with the FCC.

So here we have the four groups. Title I complaints can be filed with the EEOC. Title II and III can be filed with the Department of Justice or the courts. Use the Department of Transportation for any transportation problems. For Title IV, only the FCC can investigate those claims, or you can file with the courts. If you need any additional information, you can contact each of the groups-- EEOC for Title I, the DOJ for Titles II and III, and the FCC for Title IV information.

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Part one explains the history of the Americans With Disabilities Act (ADA), including its passage, its definitions of disability, and its recent Amendment Act. The ADA's four sections: employment, public entities, public accommodations, and telecommunications are discussed. Narrator Howard Rosenblum, current CEO of NAD, also discusses various federal agencies responsible for enforcing ADA laws. This segment is presented in American Sign Language. Part of the "The American With Disabilities Act" series.

Media Details

Runtime: 34 minutes

The Americans With Disabilities Act
Episode 1
34 minutes
Grade Level: PT/TT -
The Americans With Disabilities Act
Episode 2
23 minutes
Grade Level: PT/TT -