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the eligibility criteria of the center--e.ç., payment of funds, age requirements, and not posing a significant risk to others--it would not be permissible to deny entry because the child is HIVinfected. Moreover, there is no basis for believing that a business who accepts HIV-infected children will go "bankrupt" because of raised insurance rates. There is no evidence that insurance companies have raised liability insurance to child care centers because some children attending the center are HIVinfected.

Q. 15. What about a person with a history of mental disease,

including violence and child abuse, yet the person's doctor certifies him as healed and he is otherwise extremely well-qualified for the job. Can a child care center, nevertheless, refuse to take him on that basis alone? For that matter, would it even be appropriate under ADA to ask on an application form whether the person had a past history of mental disease or would

that run afoul of Section 202 (b) (3)? A. Under the compromise bill, as it passed the Senate, individuals who are pedophiliacs or who have sexual behavior disorders are excluded from coverage under the Act. Thus, such individuals could be denied employment on that basis and employers could ask, at any point, whether they have such disorders. In addition, it would be a legitimate job-related inquiry to ask an applicant for a child care job whether the person has a history of child abuse.


Q. #1. Section 205 provides for a private right of

action for "any individual who believes that
he or she is being or is about to be
subjected to discrimination on the basis of
disability... (emphasis supplied)." This
provision for anticipatory suits is
unprecedented with respect to employment
matters. Won't this result in clogging the
federal courts with vague claims of
anticipated discrimination? What effect will
this have on the case backlog? Why include

this in the employment Title? A. I believe there was often significant misunderstanding regarding the "about to be discriminated against" provision of the ADA. This provision was never intended to allow plaintiffs to present completely speculative complaints for which there was no basis. To the contrary, this provision was derived from case law under Title VII, which incorporates the basic concept of

anticipatory discrimination and which establishes specific, strict standards that plaintiffs must meet to prove such discrimination.

In any event, in order to address this misunderstanding, the compromise bill deleted the term "about to be discriminated against" in the employment section. The accompanying Senate Committee Report explained that, because the case law under Title VII already provided protection against the type of discrimination with which the ADA was concerned (without including any specific statutory provision to that effect), there was no need to include such a specific provision in the employment section. See Senate Committee Report, 101-116, at p. 43.

Q. 12.

Can you articulate definite guidelines for
the concepts of "reasonable accommodation"
and "undue hardship"? You state in your
testimony that those terms have been used
before and that criteria is listed under
$84.12 regulations. Please specify which
leading cases (with citations) have defined
these terms, including the "cost" or "nature"
of accommodation required. Has the 'safety
of others' been considered under the umbrella
of "undue hardship"?

A. As you note, the terms "reasonable accommodation" and "undue har p" appear in the section 504 regulations, 42 C.F.R. $84.12. They have been applied in numerous cases brought under section 504 since its passage. Some of the leading cases are:

* Strathie y, Department of Transportation, 716 F.2d 227 (3rd cir. 1983) (Plaintiff, who was hearing impaired and wore a hearing aid, challenged regulations denying licenses to school bus drivers who wore hearing aids. The court analyzed reasonable accommodation requirements at length, held that there were sufficient facts to conclude that drivers with hearing aids might be reasonably accommodated and remanded for that determination.)

* Nelson v. Thornburgh, 567 F. Supp. 369 (E.D.Pa. 1983) (Blind income maintenance workers for the Pennsylvania Department of Public Welfare sought reasonable accommodations. The court analyzed at length the type and nature of accommodations sought, the nature of the business and the nature of the jobs and determined that certain accommodations would be required.)

* Prewitt v. United States Postal Service, 662 F.2d 292 (5th cir. 1981) (Plaintiff was a disabled Vietnam veteran with limited mobility in his left arm and shoulder who was denied a job as a

distribution clerk for the Postal Service. The court held that some reasonable accommodation, such as lowering a shelf, might be required of the defendant. The court used the EEOC regulations implementing section 501.)

In the compromise bill, the applicable section 504 regulation, 42 C.F.R. 184.12 has been incorporated almost in full in the statute, to ensure that the factors that have been used in these, and other, section 504 cases continue to apply. Under this standard, as both the regulations and case law make clear, a reasonable accommodation is an action or modification that enables the disabled person to perform the essential functions of the job. If an accommodation would not achieve this desired effect (that is, the person could still not do the job), it is not reasonable to require the accommodation. In addition, the accommodation may not place an undue hardship on the operation of the employer's business. In other words, it may not constitute a significant expense for the employer or require significant difficulty for implementation--an analysis which takes into account the size and nature of the business. consideration for the safety of others has been explicitly included in the determination of "otherwise qualified" in section 504 cases. Indeed, the most recent Supreme Court case on section 504, School Board of Nassau County v. Arline, 480 U.S. 273 (1987) held that a person with a contagious disease would not be otherwise qualified if the person posed a significant risk to the safety of others, that is, by transmitting the disease to others in the workplace.

Q. #2a) If an individual has a typing business in her

home, must that person include, at a minimum,
a ramp and large bathrooms to accommodate
wheelchairs, if any other repair work is
being contemplated on the house?

If not, where is the exemption? A. If the individual employed more than 15 employees in her business at her home (that is, if she were basically operating a substantial business out of her home), she would be covered under the employment title of the bill. The only physical changes 'she would then have to make are those that would be considered "reasonable accommodations" for an employee who used a wheelchair. If it were a small business (e.g., 16 employees), it is doubtful that she would be required to expend large amounts of money on renovations, because that would be considered an undue hardship.

It seems to me, however, that you are actually talking about a person who simply runs a typing business, by herself, out of her hone. That person is exempted from the employment title because she has fewer than 15 employees. In addition, with regard to public accommodations, the compromise bill clarifies

that "potential places of employment" do not include facilities that are covered, or expressly exempted from coverage, under the Fair Housing Act. A residential home would fall into that category.

Q. 11.

Example: I am an owner of a restaurant in
Wisconsin and I want to be in compliance with
ADA now that it is law. Please tell me what
I need to do to put myself in compliance with
the law?

[blocks in formation]

A. You will not have to build a ramp unless doing so would be "readily achievable"--that is, able to be carried out without much difficulty or expense. In practical terms, that means that if there were one step into the restaurant that could be easily ramped without much expense or difficultly, that would be required. (b) What if I had intended to put a new balcony eating area

on second floor next year? Under Section 402(b) (5) do
I have to enlarge all my bathrooms at the same time and
put in an elevator?

Under the compromise bill, the path of travel to a renovated portion of the facility, and the bathrooms serving that portion, need to be made accessible only if the entity is engaging in "major structural alterations. The statute specifically provides that what is to be considered a "major structural alteration" will be defined by criteria established by the Attorney General. S. 933, sec. 302(b) (2) (A) (vi). The Senate Committee Report notes that the term "structural" means "elements that are a permanent or fixed part of the building, such as walls, suspended ceilings, floors or doorways." Committee Report, p. 67. It is likely that renovating a balcony eating area would be considered structural. As noted, however, the Attorney General will have statutory responsibility for establishing the criteria for determining what are structural alterations. With regard to the elevator, the compromise bill includes an explicit provision which exempts entities from putting in elevators during major renovations in buildings less than three stories. An elevator, therefore, would not be required in this example, regardless of the nature of the alterations. (c) Do I have to have my menus in braille?

No. The Senate Committee Report used this as a specific

example, nuting that a restaurant would not be required to have its menus in braille if it provided a waiter or other person who Was willing to read the menu.


Do I have to have room for wheelchairs at all locations
in my restaurant?

According to individuals who have first-hand experience with maneuvering in restaurants, this is not really an issue. Access to restaurants is an issue with regard to entry, restrooms and getting to each level where there is seating, or where there may be a bar or a dance floor. Once a wheelchair user is on an appropriate level, however, seating is accessible without any special consideration being given to access. The owner need do nothing special to the seating to ensure satisfactory access to tables.


What is your understanding of the intent and effect of
the inclusion of the phrase "potential places of
employment" in Title IV of the ADA? Why is it needed,
given the scope and construction of the employment
Title in the ADA?


with that in mind, what about the woman who
has a typing business in her home? This
appears to be a "personal business" under the
402 (2) (B) definition of establishment and is
also a "potential place of employment whose
operations affect commerce." without a small
business exception, couldn't that person be
liable for punitive damages if a disabled
person were not able to utilize those

(b) If your answer suggests that it would

probably fall within the "undue hardship",
provision, how would that person prove undue
hardship?" Costs spent? Is there case law?

If so, please cite specific case examples.
(c) If the "readily achievable" language is

cited, how would that person prove "not
readily achievable?" Please reference case

citations defining this tern. A. The term "potential places of employment" in the public accommodations title of the ADA was never intended to cover employment actions of businesses. Those actions were covered under the employment title of the bill, in which there is an exemption for employers with less than fifteen employees.

"Potential places of employment" was designed to cover new

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