The Americans with Disabilities Act of 1990 (ADA or The 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. Integration of individuals
with disabilities into the mainstream of society is fundamental to the
purposes of the ADA.
For this overview, Title I (employment) and Title III (private facilities
and services) will be covered. These are the sections that are of prime
interest to the small business owner. Title II is not covered, since it
deals with "public entities" - state or local government and related departments
An "individual with a disability" is a person who:
||Has a physical or mental impairment that substantially
limits a "major life activity"
||Examples of physical or mental impairments include,
but are not limited to, such contagious and non-contagious diseases
and conditions as orthopedic, visual, speech, and hearing impairments;
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
specific learning disabilities, HIV disease (whether symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism. Homosexuality
and bisexuality are not physical or mental impairments under the ADA.
"Major life activities" include functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
NOTE: Individuals who currently engage
in the illegal use of drugs are not protected by the ADA when an action
is taken on the basis of their current illegal use of drugs.
||Has a record of such an impairment (a record of a disability
would cover, for example, a person who has recovered from cancer or
mental illness), or
||Is regarded as having such an impairment.
||This 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
Business owners need to know and understand ADA requirements to avoid
penalties and litigation. Given the numerous provisions in the Act,
very few business owners, if any, would be totally exempt. The two
applicable sections will be covered in summary fashion. Concern about
any provision should prompt the gathering of additional information. Several
references are cited at the end of this article.
ADA Title I prohibits discrimination in all employment practices, including
job application procedures, hiring, firing, advancement, compensation,
training, and aspects of employment. It applies to recruitment, advertising,
tenure, layoff, leave, fringe benefits, and all other employment-related
activities. The intent is to ensure equality throughout the employment
process, covering applicants for employment as well as employees.
Title I employment provisions apply to private employers with 15 or more
employees, state and local governments, employment agencies, and labor
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.
NOTE: Readily available and detailed job descriptions documenting "essential
functions" are valuable. These should be prepared in advance of
advertising or interviewing.
Reasonable accommodation may include, but is not limited to:
||Making existing facilities used by employees readily
accessible to and usable by persons with disabilities.
||Job restructuring, modifying work schedules, or reassignment
to a vacant position.
||Acquiring or modifying equipment or devices, adjusting
or modifying examinations, training materials, or policies, and providing
qualified readers or interpreters.
NOTE: An employer is required to make an accommodation to the known
disability of a qualified applicant or employee if it would not
impose an "undue hardship" on the operation of the business.
Undue hardship is defined as an action requiring significant difficulty
or expense when considering factors such as business size, financial
resources, and the nature/structure of its operation.
An employer is not required to lower quality of production standards
to make an accommodation, nor is an employer obligated to provide
personal use items such as glasses or hearing aids.
Medical Examinations and Inquiries
Employers may not ask job applicants about the existence, nature,
or severity of a disability. Applicants may be asked about their ability
to perform specific job functions. A job offer may be conditioned on the
results of a medical examination, but only if the examination is required
for all entering employees in similar jobs. Employee medical examinations
must be job related and consistent with business needs. However, tests
for illegal drugs are not subject to the ADA's restrictions on medical
examinations. Employers may hold illegal drug users and alcoholics to
the same performance standards as other employees.
Remedies for violations of title I of the ADA 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
| Private Facilities and Services - Title III
Private businesses that provide goods or services to the public are
called "public accommodations" in the ADA. Small businesses
need to give close scrutiny to title III provisions. Nearly all types
of private businesses that serve the public are included in the various
categories, regardless of size. Title III regulations cover:
- Public accommodations (i.e., private entities that own, operate, lease,
or lease to places of public accommodation),
- Commercial facilities (commercial facilities are nonresidential facilities,
including office buildings, factories, and warehouses, whose operations
- Private entities that offer certain examinations and courses related
to educational and occupational certification.
- Places of public accommodation include over five million private establishments,
such as restaurants, hotels, theaters, convention centers, retail stores,
shopping centers, dry cleaners, laundromats, pharmacies, doctors' offices,
hospitals, museums, libraries, parks, zoos, amusement parks, private
schools, day care centers, health spas, and bowling alleys.
Public accommodations must do the following:
- Provide goods and services in an integrated setting, unless separate
or different measures are necessary to ensure equal opportunity.
- Eliminate unnecessary eligibility standards or rules that deny individuals
with disabilities an equal opportunity to enjoy the goods and services
offered, unless the requirements are necessary for the operation of
the public accommodation.
- Make reasonable modifications in policies, practices, and procedures
that deny equal access to individuals with disabilities, unless a fundamental
alteration would result in the nature of the goods and services provided.
- Furnish auxiliary aids when necessary to ensure effective communication,
unless an undue burden or fundamental alteration would result.
- Remove architectural and structural barriers in existing facilities
where readily achievable.
- Provide readily achievable alternative measures when removal of barriers
is not readily achievable.
- Provide equivalent transportation services and purchase accessible
vehicles in certain circumstances.
- Maintain the accessible features of facilities and equipment.
- Ensure accessibility in the design and construction of new facilities,
and when undertaking alterations, alter existing facilities in accordance
with the ADA Accessibility Guidelines.
Private entities offering certain examinations or courses (i.e., those
related to applications, licensing, certification, or credentialing for
secondary or postsecondary education, professional, or trade purposes)
must offer them in an accessible place and manner or offer alternative
arrangements that are accessible.
A public accommodation may not discriminate against an individual or
entity because of the known disability of a person with whom the individual
or entity is known to associate.
Commercial facilities are only subject to the requirement that new construction
and alterations conform to the ADA Accessibility Guidelines. The other
requirements applicable to public accommodations listed above do not apply
to commercial facilities.
A public accommodation is not required to provide personal devices such
as wheelchairs; individually prescribed devices (e.g., prescription eyeglasses
or hearing aids); or services of a personal nature including assistance
in eating, toileting, or dressing.
Health and Safety
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 policies or procedures, or by the provision of auxiliary aids. A public
accommodation is permitted to establish objective safety criteria for
the operation of its business, but any safety standard must be based on
objective requirements (actual risks) rather than mere speculation, stereotypes,
or generalizations about the ability of persons with disabilities to participate
in an activity. For example, an amusement park may impose height requirements
for certain rides when required for safety.
Modifications in Policies, Practices, and Procedures
A public accommodation must make reasonable modifications in its policies,
practices, and procedures in order to accommodate individuals with disabilities.
For example, a department store may need to modify a policy of only permitting
one person at a time in a dressing room if an individual with mental retardation
needs the assistance of a companion in dressing. Also, modifications in
existing practices generally must be made to permit the use of guide dogs
and other service animals.
A modification is not required if it would "fundamentally alter"
the goods, services, or operations of the public accommodation. For example,
medical specialists are not required to provide services outside of their
legitimate areas of specialization.
A public accommodation must provide auxiliary aids and services when they
are necessary to ensure effective communication with individuals with
hearing, vision, or speech impairments. "Auxiliary aids" include
such services or devices as qualified interpreters, assistive listening
headsets, television captioning and decoders, telecommunications devices
for deaf persons (TDD's), videotext displays, readers, taped texts, or
materials in large print or Braille.
However, the auxiliary aid requirement is flexible. For example, a menu
in Braille is not required, if waiters are instructed to read the menu
to blind customers.
NOTE: Auxiliary aids that would result in an undue burden, (i.e., "significant
difficulty or expense") or in a fundamental alteration in the nature
of the goods or services are not required by the regulation. However,
a public accommodation must still furnish another auxiliary aid, if
available, that does not result in a fundamental alteration or an undue
Existing Facilities: Removal of Barriers or Alternatives to Barrier
Physical barriers to entering and using existing facilities must be removed
when "readily achievable." Readily achievable means it can be
"easily accomplished carried out without much difficulty or expense."
What is readily achievable will be determined on a case-by-case basis
in light of the resources available. Further, the ADA places the legal
obligation to remove barriers or provide auxiliary aids and services on
both the landlord and the tenant.
Legitimate safety requirements may be considered in determining what
is readily achievable so long as they are based on actual risks and are
necessary for safe operation.
Examples of barrier removal measures include:
- Providing accessible parking (proper stall width and number of spaces
for lot size),
- Installing ramps,
- Making curb cuts at sidewalks and entrances,
- Rearranging tables, chairs, vending machines, display racks, and other
furniture, as long as it doesn't result in a significant loss of selling
or serving space.
- Providing sales and service counters that are accessible,
- Widening doorways, sales aisles, and checkout aisles,
- Installing grab bars in toilet stalls, and
- Adding raised letters or Braille to elevator control buttons.
First priority should be given to measures that will enable individuals
with disabilities to park and "get in the front door," followed
by measures to provide access to areas providing goods and services. Barrier
removal measures must comply, when readily achievable, with the alterations
requirements of the ADA Accessibility Guidelines. If compliance with the
Guidelines is not readily achievable, other safe, readily achievable measures
must be taken, such as installation of a slightly narrower door than would
be required by the Guidelines.
The ADA requires the removal of physical barriers, such as stairs, if
it is "readily achievable." However, if removal is not readily
achievable, alternative steps must be taken to make goods and services
accessible. Examples of alternative measures include:
- Providing goods and services at the door, sidewalk, or curb,
- Providing home delivery,
- Retrieving merchandise from inaccessible shelves or racks,
- Relocating activities to accessible locations.
Extra charges may not be imposed on individuals with disabilities to
cover the costs of measures necessary to ensure nondiscriminatory treatment,
such as removing barriers, installing alternatives to actual barrier removal,
or providing qualified interpreters.
All newly constructed places of public accommodation and commercial facilities
must be accessible to individuals with disabilities to the extent that
it is not structurally impracticable. The new construction requirements
apply to any facility occupied after January 26, 1993.
Full compliance will be considered "structurally impracticable"
only in those rare circumstances when the unique characteristics of terrain
prevent the incorporation of accessibility features.
Elevators are not required in facilities under three stories or with
fewer than 3,000 square feet per floor, unless the building is a shopping
center, shopping mall, professional office of a health care provider,
or station used for public transportation. This applies to new construction
as well as alterations.
After January 26, 1992, alterations to existing places of public accommodation
and commercial facilities must be accessible to the maximum extent feasible.
An alteration is a change that affects usability of a facility. For example,
if during remodeling, renovation, or restoration, a doorway is being relocated,
the new doorway must be wide enough to meet the requirements of the ADA
When alterations are made to a "primary function area," such
as the lobby or work areas of a bank, an accessible path of travel to
the altered area, and the bathrooms, telephones, and drinking fountains
serving that area, must be made accessible to the extent that the added
accessibility costs are not disproportionate to the overall cost of the
original alteration. The added accessibility costs are disproportionate
if they exceed 20 percent of the original alteration.
Alterations to windows, hardware, controls, electrical outlets, and signage
in primary function areas do not trigger the path of travel requirement.
Enforcement of the ADA and its Regulations
Private parties may bring lawsuits to obtain court orders to stop discrimination.
No monetary damages will be available in such suits. A reasonable attorney's
fee, however, may be awarded.
Individuals may also file complaints with the Attorney General who is
authorized to bring lawsuits in cases of general public importance or
where a "pattern or practice" of discrimination is alleged.
In suits brought by the Attorney General, monetary damages (not including
punitive damages) and civil penalties may be awarded. Civil penalties
may not exceed $50,000 for a first violation or $100,000 for any subsequent
This information was compiled and edited by Jim Hitchcock, BRIDG associate
on the University of Missouri-Kansas City campus.
This article provides general coverage of the subject area. It is
provided to the reader as a resource for a preliminary understanding of
the applicable law and is not intended to be legal advice or service.
If legal advice is sought or required, the services of a competent, licensed
professional should be sought.
| Source Data and References
In preparing this overview, many of the following Internet sites were
explored. These sites provide considerable detail and clarification in
connection with the various provisions found within the ADA.
Great Plains ADA/IT Center - overviews, numerous topics & FAQS
ADA, A Summary; Implementation Dates
U. S. Department of Labor site - variety of topics
U. S. Department of Justice - ADA home page
U. S. Department of Justice - ADA questions and answers
Myths & facts about the ADA
U. S. EEOC - facts about the ADA
U. S. EEOC - ADA: A primer for small business
U. S. EEOC - ADA: Your responsibilities as an employer
U. S. SBA & U. S. DOJ - ADA guide for small businesses
Job Accommodation Network (JAN) - Title III checklist
JAN - General ADA information
Web portal directory to the federal government's offices/services relevant
to people with disabilities
Missouri Governor's Council on Disability site