Imágenes de páginas
PDF
EPUB

The Americans with disabilities Act offers the means to redress these various forms of discrimination. The bill is a historic piece of legislation that will finally extend to people with disabilities the legal right to equal opportunity and equal access in all spheres of society.

In prohibiting these various forms of discrimination, the ADA properly draws upon the long-standing experience that has been gained through application of Sections 501, 503 and 504 of the Rehabilitation Act of 1973, which prohibit discrimination against people with disabilities by the federal government, federal contractors and those that receive federal financial

assistance.

The regulations and case law that have been

developed under these statutory provisions constitute a basic,

workable scheme that has been incorporated in large part by the Americans with disabilities Act. 1

In determining who may gain access to the protections of the ADA, the bill adopts the same definition of "disability" that is used under Section 504 of the Rehabilitation Act to define "handicap." Thus, the same broad three-pronged definition of handicap that has been in place for years under Section 504 is

1. The Rehabilitation Act of 1973 has provided important protections over the years to people with disabilities. However, that act is limited in the scope of entities that it covers: the federal government, federal contractors, and those who receive federal funds. The ADA will till an important gap by extending anti-discrimination protection to the private sector.

incorporated by the ada. 2 The purpose of this broad definition

is to prohibit the range of discriminatory actions that result

from myths, stereotypes and fears concerning people with

disabilities.

The various sections of the ADA reflect the types of

discrimination that are directed against people with disabilities. Title II of the bill prohibits discrimination by private employers who employ more than 15 employees,y The section properly reflects the importance of reasonable accommodation in the employment of people with disabilities by requiring employers to make reasonable accommodations to the

known physical or mental limitations of an applicant or employee,

as well as prohibiting employers from denying employment

2. The ADA uses the term "disability" rather than "handicap," to reflect the term of choice of the disability community. However, the definition used is precisely the definition used under the Rehabilitation Act. Thus, while the defining term has been changed in order to reflect changing and more appropriate terminology ("disability" rather than "handicap"), the substantive definition has not been changed. From a legal standpoint, therefore, the breadth of coverage available under the Rehabilitation Act is the same as that available under the ADA, when that coverage depends on the definition of "disability" or "handicap."

3.

Discrimination against people with disabilities obviously also occurs on the part of entities that employ less than 15 employees. However, Title VII of the civil Rights Act of 1964, which prohibits discrimination on the basis of race, religion, national origin and sex, currently incorporates an exemption for entities that employ less than 15 employees. The ADA carries over the same exemption for discrimination on the basis of disability. The ACLU believes that all employers should be covered by the anti-discrimination mandate.

opportunities to a person with a disability 18 the reason for the denial is the person's need for a reasonable accommodation. The provision of reasonable accommodations is critical in the employment sector: a person with a disability may be completely qualified to perform the essential functions of a job as long as sone accommodation is made for the individual.

In deference to the needs of employers, the ADA also incorporates the protective framework of Section 504 with regard to reasonable accommodation. An entity need not provide a reasonable accommodation if it can demonstrate that provision of the accommodation would impose an undue hardship on the operation of the business. The term "undue hardship" is a long-standing term of art under Section 504 regulations and case law. А deternination as to whether a reasonable accommodation would impose an undue hardship depends on well-established factors, including the nature and type of the operation, the number of employees, and the nature and type of the accommodation requested. See 45 C.F.R. 584.12 (1987).V

Title III of the ADA covers the provision of public services by a state, agency, or political subdivision of a State.

4. The determination whether an accommodation is "reasonable" focuses on whether it will achieve the objective of allowing the employee to perform the essential functions of the job. By contrast, the requirement that the accommodation not pose an "undue hardship" focuses on the burden on the employer in providing the accommodation.

Currently, the activities of most states would be covered under Section 504 if the State received any federal funds in those programs or activities, as that term is defined in the civil

Rights Restoration Act of 1987.

However, to the extent that some

State or local activities are not currently covered under Section

504, Title III extends that coverage to the remaining programs. As a reflection of the equivalent coverage, section 302 of the

ADA incorporates the basic language of the original Section 504 provision.

Title III also incorporates specific provisions regarding public transportation. These provisions reflect a focus on the future of public transportation, by requiring that all new buses that are purchased be accessible to and usable by people with disabilities, including people who use wheelchairs. This provision is critical to the bill. A mark of a truly integrated

society is one in which the mainline systems of that society are

open and accessible to all.

Title IV of the ADA prohibits discrimination on the part of all public accommodations and services operated by private entities. The bill provides that no individual shall be discriminated against in the full and equal enjoyment of benefits or services provided by a public accommodation. This title incorporates the two aspects of discrimination that can occur in public accommodations, as discussed above. First, the title

prohibits the attitudinal discrimination that can occur against people with disabilities in the range of public accommodations. Second, the title requires non-discrimination in terms of physical accessibility. As with the requirements regarding transportation, this title looks primarily to the future. While some modifications are required in existing facilities if such modifications are "readily achievable," the bill basically requires that construction of all new or remodeled buildings be fully accessible to people with disabilities. This approach of looking to the future is similar to that adopted in the fair Housing Amendments Act of 1988 -- a bill which was actively. supported by the ACLU and the Leadership Conference on civil Rights and which was recently passed by the 100th Congress.

· Title IV includes a definition of "public accommodation" which is different from that which appears in Title II of the civil Rights Act of 1964. The new definition of the ADA appropriately addresses the kinds of discrimination faced by people with disabilities. I Title II of the civil Rights Act defines public accommodations to include establishments which provide lodging, establishments which are engaged in selling

5. The ADA defines public accommodations as privately operated establishments that "are by used the general public as customers, clients or visitors or that are "potential places of employment," and whose operations affect commerce. Section 401(2).

« AnteriorContinuar »