The Americans with Disabilities Act (ADA) - Highlights for Small Businesses

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 and agencies.

An "individual with a disability" is a person who:

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 unions.

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:

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.

Enforcement
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 accommodation.

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 affect commerce).
• 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.

Auxiliary Aids
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 burden.

Existing Facilities: Removal of Barriers or Alternatives to Barrier Removal
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.

New Construction
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.

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 Accessibility Guidelines.

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 violation.

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.

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
www.adaproject.org

ADA, A Summary; Implementation Dates
www.dol.gov/odep/pubs/misc/summada.htm

U. S. Department of Labor site - variety of topics
www.dol.gov/dol/topic/disability/ada.htm#doltopics

U. S. Department of Justice - ADA home page
www.ada.gov

U. S. Department of Justice - ADA questions and answers
www.usdoj.gov/crt/ada/q&aeng02.htm

Myths & facts about the ADA
www.usdoj.gov/crt/ada/pubs/mythfct.txt

U. S. EEOC - facts about the ADA
www.eeoc.gov/facts/fs-ada.html

U. S. EEOC - ADA: A primer for small business
www.eeoc.gov/ada/adahandbook.html

U. S. EEOC - ADA: Your responsibilities as an employer
www.eeoc.gov/facts/ada17.html

U. S. SBA & U. S. DOJ - ADA guide for small businesses
www.usdoj.gov/crt/ada/smbusgd.pdf

Job Accommodation Network (JAN) - Title III checklist
www.jan.wvu.edu/media/IIIChecklist.doc

JAN - General ADA information
www.jan.wvu.edu/portals/dbtac.htm

Web portal directory to the federal government's offices/services relevant to people with disabilities
www.disabilityinfo.gov

Missouri Governor's Council on Disability site
www.gcd.oa.mo.gov