There are some members of our society, however, who still do not have access to this basic form of redress for unjustified discrimination. People with disabilities constitute such a class. While a private employer could not refuse to hire or promote a person because that individual were black, Jewish or a woman, that same private employer, if it did not receive federal funds or federal contracts, could discriminate against a person with a disability on the basis of the disability. Such discrimination happens all too often, in situations where the person with the disability is otherwise completely qualified to perform the job in question and where the discrimination is simply the result of fear, ignorance or misperception. People with The same type of discrimination that occurs in employment occurs across all spectrums of our society. disabilities face discrimination in a wide array of privately operated public accommodations. discrimination is attitudinal: In some situations, the a restaurant, a dress shop, an exercise club, a movie theatre or some other service provider may simply not want to provide services to a person with epilepsy, cerebral palsy, AIDS or any other disability. In other 1. Another group of individuals who do not yet have recourse under federal law are those who suffer discrimination based on sexual orientation. While the ADA does not offer any protection to those who are discriminated against solely on the basis of sexual orientation, the ACLU strongly supports passage of a federal law that would offer such protection. situations, the public accommodation needs to provide a simple auxiliary aid to allow a person with a disability access to a particular service or benefit, but the aid is not provided. Finally, in many situations, the discrimination is one of physical access: individuals with mobility impairments often cannot even get into the door of a building that is a public accommodation. Problems with attitudinal discrimination and physical access exist in the sphere of public and private transportation as well. In order for people with disabilities to get to employment positions or to public accommodations, they must be able to have access to effective transportation. Yet, many publicly-financed transportation systems have few lift-equipped buses that are accessible to people with mobility impairments, and the supplementary "paratransit" systems that are available to people with disabilities have severe limitations. Privately owned transportation systems offer even fewer accessible vehicles. People with hearing impairments experience a particular form of discrimination in our society. The basis of our society is often communication that takes place through use communication - of the telephone. We use the telephone to carry out our business, to set up appointments, to call for help, and to order food and theatre reservations. People with hearing impairments do not have access to this most basic tool of communication if the entity on the receiving end does not have a Telecommunication Device for the Deaf (TDD) or if a telecommunications relay system is not in place in that particular geographic area. 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.2/ In determining who may gain access to the protections of the 2. 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 fill an important gap by extending anti-discrimination protection to the private sector. 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 incorporated by the ADA.3/ The scope of this coverage was recently explicated by the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The Court noted that Congress intended 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.4/ The 3. 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." 4. 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 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 opportunities to a person with a disability if the reason for the denial is the person's need for a reasonable accommodation. 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 some accommodation is made for the individual. The 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. A determination 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 covered by the anti-discrimination mandate. |