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** Topic: Americans with Disabilities Act, AD ** ** Written 5:30 pm Nov 28, 1991 by uwe_frehse@asco.zer in cdp:gen.diffable ** E N I L European Network on Independent Living Chair: Adolf Ratzka Steering Group Members: Secretary: Philip Mason Norrbackagatan 41 Uwe Frehse, Germany 4 Plantation Way 11341 Stockholm, Bente Skansgard, Norway Whitehill, Bordon Sweden Marry van Dongen, Netherlands Hants. GU35 9HD, U.K. Uwe Frehse John-F.-Kennedy-Str.56 3500 Kassel John-F.-Kennedy-Str. 56 W - 3500 Kassel Tel.: +49-561- 659 48 E-Mail: GreenNet uwefrehse E-Mail: uwe_frehse@LINK-M.zer E-Mail: uwe_frehse@ASCO.zer Munich in February 17, 1991 Dear Friends, the civil rights act of 1990, the Americans with Disabilities Act (ADA), is now known as PUBLIC LAW 101-33611. Everyone is strongly encouraged to read the complete ADA and the Congressional committee reports.* You can obtain a copy of the law by contacting either the House or Senate document rooms (see addresses below). The Library of Congress' National Library Service for the Blind and Physically Handicapped are preparing braille and cassette versions of the Act. Contact one of the regional libraries in the U.S.. They will send you only one copy of a document at a time. House Document Room Senate Document Room Room B18 Hart Senate Office House Annex II Washington, D.C. 20510 Washington, D.C. 20515 Sincerely Uwe Frehse Dipl. Soz.-Paed. ADA INDEX: ADA 1: OVGRVIEW OF THE AMERICANS WITH DISABILITIES ACT OF 1989 ADA 2: DEFINITION OF DISABILITY ADA 3: TELECOMMUNICATIONS ADA 4: TRANSPORTATION ADA 5: DEFERENCE TO NEEDS OF SMALL BUSINESSES ADA 6: PUBLIC ACCOMMODATIONS ADA 7: COVERAGE OF DRUG AND ALCOHOL USERS ADA 8: REMEDIES ADA 9: EMPLOYMENT PROVISIONS ADA 10: COVERAGE OF AIDS Topic 23 ADA Index uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) Americans with Disabilities Act, ADA ADA Index ADA 1: OVERVIEW ADA 2: DEFINITION of disability ADA 3: TELECOMMUNICATIONS ADA 4: TRANSPORTATION ADA 5: needs of SMALL BUSINESSES ADA 6: public ACCOMMODATIONS ADA 7: DRUG and ALCOHOL }sers ADA 8: REMEDIES ADA 9: EMPLOYMENT provisions ADA 10: coverage of AIDS Topic 24 ADA 1: OVERVIEW uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 1: OVERVIEW OF THE AMERICANS WITH DISABILITIES ACT OF 1989 (As passed by the Senate, September 7, 1989) The Americans With Disabilities Act of 1989 (ADA) is an omnibus civil rights statute that prohibits discrimination against individuals with disabilities in private sector employment, all public services, public accommodations, transportation, and telecommunications. Section 1 is the short title. Section 2 sets out congressional findings and the purposes of the bill. Section 3 defines several key terms such as: "disability" and "auxiliary aids and services." These definitions are comparable to the definitions used for purposes of section 503 of the Rehabilitation Act of 1973 (which prohibits discrimination against persons with disabilities by government contractors) and section 504 of the Rehabilitation Act of 1973 (which prohibits discrimination against persons with disabilities by recipients of federal financial assistance). Title I specifies that an employer, employment agency, labor organization, or joint labor-management committee may not discriminate against any qualified individual with a disability in regard to employment, including any term, condition or privilege of employment. The ADA incorporates by reference the enforcement provisions under Title VII of the Civil Rights Act of 1964. Title II specifies that no qualified individual with a disability may be discriminated against by a State, agency or political subdivision of a State, or a board, commission, or other instrumentality of a State or political subdivision. Title II also includes specific actions applicable to public transportation provided by public transit authorities considered discriminatory. Finally, Title II incorporates by reference the enforcement provisions in section 505 of the Rehabilitation Act of 1973. Title III specifies that no individual shall be discriminated against, on the basis of disability, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation operated by a private entity on the basis of disability. Title III also includes specific prohibitions on discrimination in transportation services provided by private entities. Finally, Title III incorporates the applicable enforcement provisions in Title II of the Civil Rights Act of 1964. Title IV specifies that telephone services offered to the general public must include interstate and intrastate telecommunication relay services so that such services provide individuals who use nonvoice terminal devices because of disabilities with opportunities for communications that are equal to those provided to individuals able to use voice telephone services. Title IV incorporates by reference applicable enforcement provisions the Communications Act of 1934. Title V includes miscellaneous provisions, including: a construction clause explaining the relationship between the provisions in the ADA and the provisions in other federal and State laws; a provision stating that the ADA does not affect insurance underwriting policies; a prohibition against retaliation, a clear statement that States, are not immune from actions in Federal court for a violation of the ADA, a directive to the Architectural and Transportation Barriers Compliance Board to issue guidelines, and authority to award attorney's fees. Topic 25 ADA 2: DEFINITION of disability uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 02: DEFINITION OF DISABILITY * The Americans with Disabilities Act (ADA) is patterned after Section 504 of the Rehabilitation Act of 1973. Section 504 is a law which prohibits discrimination against people with disabilities in a range of areas (such as employment, social services and education) on the part of entities that receive federal funds. It is a law which has been in effect, and which has operated well, for over a decade. * The ADA's definition of disability is identical to the definition under Section 504, with the exception of deletion of coverage for current illegal drug users (see below). In addition, the ADA uses the term "disability" rather than "handicap," to reflect our term of choice in the disability community. * Under Section 504's definition, and hence under the ADA's definition, a person with a disability is defined as: 1) a person with a physical or mental impairment that substantially limits that person in some major life activity; or 2) a person with a record of such a physical or mental impairment; or 3) a person who is regarded as having such an impairment. * This three-part definition of disability has been in place since 1974 under Section 504. This definition has been amplified in both regulations and caselaw. First, to have a disability, one must have an actual physical or mental impairment -- not simply a physical condition, such as black hair or blue eyes. Second, the disability must be serious enough so as to affect some form of major life activity, such as walking, talking, breathing or working. * The definition also includes someone with a record of an impairment. These include, for example, individuals with a history of mental illness, heart disease or cancer, who no longer have the disease but who are discriminated against because of their record of an impairment. * The definition also includes individuals who are regarded as having an impairment. This is designed to include individuals who may not have a physical impairment that actually limits a major life activity, but who are nonetheless regarded as being impaired and limited. For example, this would include a person who has a significant physical burn on his or her face which does not actually limit the person in any major life activity, but who is nonetheless discriminated against because of the disfigurement. It has also included, in Section 504 cases, children who were not actually mentally retarded, but who were misclassified and treated as such. * This three-part definition of disability is a critical component of the coverage of both Section 504 and the ADA. Congress' intent in adopting the definition in 1974 was to establish a broad definition that would ensure adequate protection for individuals experiencing any form of discrimination based on disability, including discrimination based on myths and stereotypes. * Congress also made an intentional decision not to try to list every possible medical disability that exists, but instead chose to establish a generic, functional definition that would encompass the type of condition Congress wished to protect from discrimination. When the agency issued regulations to implement Section 504, it also explicitly chose not set forth a list of specific diseases and conditions "because of the difficulty of ensuring the comprehensiveness of any such list." And when Congress passed the Fair Housing Amendments Act just last year, it again did not try to list all possible conditions covered, but instead adopted the established Section 504 definition of disability. The House Judiciary Report to that bill noted that not only would it have been impossible to ensure the comprehensiveness of such a list, but some medical conditions may not even be discovered or be prevalent at the time legislation is passed. * Section 504's definition of disability also has never been tied to how a person became disabled. Any effort to remove protection for people with disabilities based on how such individuals became disabled cuts into the very core of the bill--which is designed to prohibit irrational and unjustified discrimination taken on the basis of disability. * There is one respect in which the ADA's definition of disability is different than that which currently exists under Section 504. Individuals who are addicted to drugs have a medical disability and have been previously covered under Section 504. Of course, such individuals have always had to be qualified for the job and could not pose a threat to others. Despite these restrictions, there was significant pressure to remove all protection for individuals who are currently using illegal drugs. The Senate-passed ADA, therefore, excludes a person who is currently using illegal drugs from the definition of an individual with a disability. Thus, employers and others can discriminate against individuals who use illegal drugs, because of that use, without any liability under the ADA. In addition, the ADA explicitly allows employers to engage in drug testing for illegal drugs. Topic 26 ADA 3: TELECOMMUNICATIONS uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 03: TELECOMMUNICATIONS Title IV of the Americans with Disabilities Act will require all common carriers to provide intrastate and interstate telecommunications relay services for telephone calls made between users of telecommunication devices for the deaf (TDDs) and users of voice telephones. A TDD is a machine that can be used to send and receive coded signals over telephone lines to other TDDs. The signals are received on paper and/or a screen or display terminal. Telecommunication relay services are services that enable persons who use TDDs to carry on telephone conversations with persons who do not use such devices. To use a relay service, a caller who uses a TDD dials the relay service's number and types her message and then places a voice call to the called party. Relay service personnel then receive a voice message from the called party and transmit it to the caller via TDD. This process continues until the call is completed. with relay personnel converting all voice messages into typed text and all TDD messages into voice. Currently, there are 17 states with formal relay programs. In ten additional states, relay systems are scheduled to begin operations within a few years. Typically, relay systems that now axis a short of meeting the basic telephone needs of individuals with hearing and speech impairments. Usually, these systems are underfunded and understaffed. As a result, they impose restrictions on the number, length, and types of calls that can be relayed in their states. In addition, many states with relay systems now operating do not permit interstate calls to be relayed. Many relay programs also suffer from excessive delays and blockage rates. It is not uncommon for relay users tO confront repeated busy signals or interminable waiting periods when trying to access a relay line. Without equal access to the telephone, individuals with hearing and speech impairments have been denied the opportunity to fully participate in the mainstream of society. Forced to depend on others in order to use the telephone, hearing impaired and speech impaired persons have been isolated from the social and economic lives of their communities. The ADA will require relay services to be available 24 hours each day, 7 days a week, without restrictions on the type, length, or number of calls made by any relay user. This is the type of service that everyone else in the country takes for granted. The rates for any relayed call will be no greater than the rates charged for a direct dial call with the same points of origination and termination. While the ADA mandates these minimum requirements, it also affords considerable flexibility to both common carriers and states that set up their own relay systems. States that have relay programs may continue operating those programs if they receive certification from the Federal Communications Commission (FCC) that they have met minimum Standards and guidelines. The Act also leaves to the discretion of the common carriers the means by which the relay systems will be funded. In the past, telephone companies have added a few pennies a month to the bills of all their customers. This is certainly a small amount to pay for relay systems, given the Overwhelming benefits of telephone access for individuals with hearing and speech impairments. Topic 27 ADA 4: TRANSPORTATION uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 04: TRANSPORTATION PUBLIC TRANSIT The Americans with Disabilities Act requires that public transit authorities buying any new vehicles ensure those vehicles are accessible to people with disabilities. NO RETROFITTING IS REQUIRED. Comparable paratransit services must also be provided unless it results in an undue financial burden. By requiring both fixed route accessible service for the majority of disabled persons who can use it, and comparable paratransit service for those who can't, the ADA will insure that a multi-modal system will be in place to serve the entire disability community. Multi-modal systems have proven workable in many cities, including cities both large and small, rural and urban, in both cold and warm climates. Specialized paratransit service alone can never meet the transit needs of people with disabilities. Paratransit, an expensive service to run, inevitably poses service limitations to keep costs from skyrocketing. For example: 0 needing to call days in advance 0 having trip purpose limitations (e.g. doctor visits and work may be allowed but classes, shopping, and banking might not be) 0 having limited hours of operation (e.g. no evening or weekend service) 0 having cumbersome registration procedures, making the service unavailable to newcomers and visitors 0 having lengthy waiting lists 0 having geographical limitations - e.g. can only travel to borders of one's own town or suburb 0 having to pay a higher fee than regular bus fare 0 being allowed only a certain number of rides per month (e.g. 10) Outfitting new buses with lifts is already the definite trend; more and more cities every year decide to buy only lift-equipped buses. Many of these cities experience inclement weather conditions (e.g. Buffalo and New York, New York; Johnstown, Pennsylvania; Denver, Colorado; Champagne-Urbana, Illinois; and Oshkosh, Wisconsin). These cities vary greatly in size; Oshkosh has a bus fleet of 25 while New York City's is almost 4,000. Buying new buses with lifts adds only 5% to the cost (less than air conditioning I), and maintenance costs have averaged, in many cities, under $500 per year per bus. One person in a wheelchair who uses an accessible bus to and from work every day will pay for the local community's cost of the lift equipment. The ADA has built in flexibility for rural and small communities. Many of these areas purchase used buses or only have a demand-response system that is used by everyone -- disabled and non-disabled persons. Used buses need not be accessible if they are not available after making "good faith" efforts to locate them. In communities which use demand-response systems for everyone, the ADA only requires that new vehicles be accessible if the system cannot currently meet the transportation needs of people with disabilities. PRIVATE INTERCITY TRANSIT The ADA also requires private intercity transportation providers, such as Greyhound, to ensure that new buses are accessible, but a special exemption is given: the requirement does not go into effect for six years for large providers and seven years for small providers. An Office of Technology Assessment (OTA) study is mandated to determine the most feasible way to provide access. While the ADA will require coaches purchased after this period to be accessible, a specific method for making the coaches accessible isn't dictated. The OTA study will determine the most feasible way to provide access. The six year leeway is ample time for the development of inexpensive access technology. Even today, Denver provides a model example. In Denver, accessible over-the-road coaches are in service using an inexpensive lift now widely available. Like many other technology-forcing statutes such as those that required air bags for cars and pollution-control devices for certain industries, the ADA mandate will facilitate the development of even better, cheaper technology for intercity over-the-road coaches. Note: the ADA does not require accessible restrooms in these coaches. CHARTER AND TOUR COMPANIES The ADA would not require retrofitting of a single bus or van; access is only required in new vehicles. Moreover, most charter, tour, and shuttle services are demand response systems. In these systems, the ADA only requires new vehicles to be accessible if the system is not already accessible "when viewed in its entirety". This means that if a charter company can accommodate all of its disabled patrons via the number of accessible vehicles it already has (or by using leased vehicles), newly-purchased vehicles don't have to be accessible. RAIL TRANSIT New rail facilities will have to be accessible. Also, the ADA requires that one car per train in existing commuter rail, light rail, and heavy rail systems be accessible within five years, and that key stations be accessible within three years, with exemptions available for extraordinarily expensive situations for up to 20 years. Amtrak stations must be accessible within 20 years. In New York City and Philadelphia, key commuter rail stations are currently being made accessible as a result of legal settlements brought under state law. These cities can serve as models of how to feasibly retrofit key stations in currently-inaccessible rail systems. Topic 28 ADA 5: needs of SMALL BUSINESSES uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 05: DEFERENCE TO NEEDS OF SMALL BUSINESSES The ADA has been carefully crafted to make sure that its requirements take into account the needs and situations of small businesses. Some of the major ways in which the ADA has been tailored to consider and make allowance for the needs of the small business operator include the following: 0 Exemption for small employers With respect to employment, the bill totally exempts all employers with fewer than 25 employees for the first two years, and those with fewer than 15 after that. 0 Undue hardship limitation For those employers large enough to be covered despite the small employer exemption, the duty of making reasonable accommodations for employees with disabilities does not apply when an accommodation would impose an "undue hardship." Among the factors to be considered in determining whether an undue hardship exists, the bill specifically lists "the overall size of a business of a covered entity with respect to the number of employees, number and type of facilities, and the size of the budget." Thus, the requirement of making employment accommodations varies in relation to the size and budget of an employer, with less being required of a smaller, less prosperous business. 0 Readily achievable limit on barrier removal in existing public accommodations Places of public accommodation are required by the bill to remove architectural and communication barriers in existing facilities only if it is "readily achievable" to do so. Readily achievable means "easily accomplishable and able to be carried out without much difficulty or expense." In determining what is readily achievable the ADA again specifies that the size and bud et of a business are to considered. A Mom-and-Pop store is held to a mu lower standard than is a highly financed, big national concern. 0 Undue burden limitation regarding auxiliary aids and services Public accommodations are not required to provide auxiliary aids and services if doing so would result in an "undue burden." As with "undue hardship" and "readily achievable," the ADA specifies that the determination of what is an undue burden must take into account the size and budget of a business. A struggling small business will be excused from providing an auxiliary aid or service in circumstances where a larger, more prosperous business might be required to provide it. 0 The elevator exception for small buildings The ADA generally requires accessibility in new construction consistent with overwhelming evidence that the costs of accessibility at the design and construction stage are minimal. To further protect small businesses, however, the bill has added an exception tO accessibility requirements with regard to small buildings. For buildings that are less than three stories or that have less than 3,000 square feet per story, (no matter how many stories), no elevator is required -- either for new construction or for renovation projects. 0 The readily accessible to and usable by standard The ADA does not require total or universal accessibility even in regard to newly constructed facilities. The "readily accessible to and usable by" standard drawn from previous statutes and regulations imposes accessibility obligations that are tailored to the type and use of each particular facility. It does not require that all parking spaces, bathrooms, stalls within bathrooms, etc. have to be accessible, but only a reasonable number, depending on such factors as their location and number. A small facility is likely to have fewer areas and services, and therefore, fewer areas and services to make accessible. The ADA does not require a business to add accessible drinking fountains and bathrooms if it does not otherwise provide fountains or bathrooms. Small businesses with the fewest "frills" will have fewer such services and conveniences to make accessible. 0 Telecommunications relay services The establishment of telecommunications relay services for individuals with speech or hearing impairments as provided for in Title IV of the bill was an accommodation to the needs of small businesses. This system was created to permit persons using telecommunications devices for the deaf (TDDs) to contact businesses through a relay system in lieu of requiring all businesses to have TDDs themselves to permit customer to call to make reservations, purchase tickets, check on store hours or show times, etc. 0 Absence of compensatory and punitive damages for discriminatory public accommodations A compromise in the Senate removed from the bill provisions that would have permitted the awarding of compensatory and punitive damages against employers or places of public accommodation found to have discriminated. Some had argued that the prior monetary damages provisions might be too harsh, and that many small businesses would be unable to afford Ie al counsel to advise them and so would risk serious financial liability. The remedies available now under the bill are highly advantageous to small businesses. The harshest remedy that will generally be available against a small public accommodation will be an injunction ordering it to stop its discriminatory activity. In employment, for those larger business that have over 15 employees, there is also no ability for plaintiffs to receive compensatory or punitive damages. Topic 29 ADA 6: public ACCOMMODATIONS uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 06: PUBLIC ACCOMMODATIONS WHAT IS CONSIDERED A PUBLIC ACCOMMODATION? Public accommodations include hotels, restaurants, theaters, halls, stores, offices, museums, parks, social service agencies, schools, gyms, etc.. The ADA lists 12 categories of establishments considered public accommodations -- places of lodging, establishments serving food or drink, places of exhibition or entertainment, places of assembly, retails sales establishments, service establishments, transportation terminals, places of public display or collection, parks or zoos, schools, social service establishments and places of exercise or recreation. WHAT IS REQUIRED? 1. It would be illegal for public accommodations to exclude or refuse to serve a person with a disability. 2. Brand new buildings must be accessible to people with disabilities. Access in new construction is notoriously inexpensive, generally adding 112 of 10/0 or less to a building's cost. To make this requirement even more reasonable, the ADA does not require elevators in buildings under 3 stories or under 3000 square feet per story, unless the facility will be a health care facility or shopping center. 3. Existing facilities must only remove barriers if the removal is "readily achievable," defined in the Act as "easily accomplishable and able to be carried out without much difficulty or expense. For example, a facility may have to place a ramp over one or two steps, or add a grab bar, or install a paper cup dispenser to make a water fountain more accessible, to the extent that the modification is easily accomplishable by the facility. It would require major modifications such as long ramps, lifts, completely remodeled restrooms, or other such changes which would not be easily accomplishable, without much expense. This requirement is deliberately designed to be flexibly applied to businesses of all sizes. What is easily accomplishable for a large business is different than for a small one. The ADA explicitly mandates that the size and nature of the business be taken into account in determining what is readily achievable. 4. Facilities undergoing renovation would have to make the renovated area accessible to people with disabilities. In the case of major structural renovations, an accessible path of travel would have to be provided to the renovated area, and facilities serving the renovated area, like a restroom, would have to be accessible. 5. In facilities that aren't accessible, and where barrier removal isn't readily achievable, alternative methods must be used to serve disabled people if they are not burdensome. This means, for example, that if a drycleaning establishment has five steps, the staff would come down the stairs to take the clothes to be dry-cleaned from a customer using a wheelchair, and return them to the customer in a like manner. 6. Public accommodations are required to provide "auxiliary aids and services" to enable a person with a disability to use and enjoy the goods and services available at a facility, unless doing so would be too burdensome or disruptive to the business. Auxiliary aids and services refer to such things as large print materials, tape recordings, captioning and other similar services and devices. Practicality and effectiveness can be considered in choosing among alternative aids and services. For example, a restaurant would not be required to provide menus in braille if it provided a waiter or other person to read the menu to a blind person. Moreover, establishments are not required to provide an auxiliary aid or service that is an "undue burden" upon them or that would "fundamentally alter" the service or goods they provide. The size and nature of the business is considered under the law in determining whether an auxiliary aid is an undue burden. HAVE THESE REQUIREMENTS BEEN TESTED BEFORE? Laws in many states were used as models for the ADA, including Georgia, New York, North Carolina, Connecticut, and California. ARE THERE ANY FINANCIAL INCENTIVES FOR BUSINESSES TO COMPLY? Currently, the IRS Code allows businesses a $35,000 annual tax deduction for costs incurred removing architectural barriers to aid access for people with disabilities. Topic 30 ADA 7: DRUG and ALCOHOL users uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 07: COVERAGE OF DRUG AND ALCOHOL USERS * Coverage of drug and alcohol users under the Americans with Disabilities Act (ADA) underwent significant changes as a result of negotiations with the Administration during senate passage of the bill. * Because of the Administration's desire that the ADA be wholly consistent with its zero-tolerance strategy, anti- discrimination protection was removed for current users of illegal drugs. Although, in the long run, removal of this coverage might actually result in greater problems in the workplace and in other sectors of society (because individuals will be afraid to 5elf-identify as drug abusers and step forward for treatment, as they might have done if they had been assured of some protection), this is the approach the Administration has decided to adopt in the ADA. * The ADA approach therefore includes four components: * First, amendments were accepted on the senate floor which excluded individuals who are current users of illegal drugs from the definition of a person with a "disability" in the employment section of the ADA, as veIl as in the other sections of the ADA. This same exclusion was also adopted for purposes of Section 504 of the Rehabilitation Act of 1973. * Under this exception, an individual who currently uses illegal drugs is not entitled to any protection under the ADA, regardless of whether that person is a casual user of drugs or is an addict and regardless of whether his or her illegal drug use has any adverse impact on job performance in the employment sector. Employers may thus refuse to hire and may discipline or fire any person who currently uses or is addicted to illegal drugs without violating the ADA. * Second, in addition to explicitly removing current illegal drugs users from the Act's employment protections, the ADA also expressly allows employers to: prohibit the use of illegal drugs or alcohol by all employees; require that employees not be under the influence of illegal drugs or alcohol at the workplace; require that employees conform their behavior to requirements established pursuant to the Drug Free Workplace Act; and hold a drug user or alcoholic to the same qualifications- performance and behavioral standards to which all employees are held, even if unsatisfactory performance or behavior is related to the individual's drug use or alcoholism. * Third, the ADA explicitly provides that nothing in the Act prohibits or restricts employers from conducting drug testing for illegal drugs or from making employment decisions based on such test results. Therefore, the Act allows drug testing before and during employment, and applicants who are tested and denied jobs and employees who are tested and disciplined or fired on the basis of test results showing illegal drug use have no protection under the ADA. * Fourth, the Act does not reguire employers to make any reasonable accommodations for current illegal drug users (including those addicted to illegal drugs), and does not require employers to offer such accommodations to any individual who violates any of the rules or requirements set out in the statute. This is because employer's obligations to make reasonable accommodations extend only to those who have a "disability" within the scope of the ADA. Since current illegal drug use (including addiction) does not constitute such a disability, no duty of reasonable accommodations exists with respect to any applicant or employee who currently uses illegal drugs. The same is true for the other sections of the bill. * The ADA retains protection for individuals who have overcome drug or alcohol problems, including those who are participating successfully in treatment programs and are refraining from illegal drug use or alcohol abuse. In addition, the ADA provides that individuals who are using drugs can continue to receive health and social services, if they are otherwise entitled to such services. Topic 31 ADA 8: REMEDIES uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 08: REMEDIES * Any anti-discrimination bill is made up of two basic -parts: a statement of what actions are illegal under the law and a provision for the remedies that are available if an entity engages in those illegal actions. * The remedies section of the ADA underwent significant revision during negotiations with the Administration. The resulting remedies, while providing adequate enforcement of the rights established by the ADA, remove any possibility of the type of extensive monetary, compensatory damages so feared by the business community. * The remedies provided by the ADA are as follows: * EMPLOYMENT: The ADA adopts the remedies provided by Title VII of the Civil Rights Act of 1964. Under Title VII, and hence under the ADA, a plaintiff has a private right of action (which means that, after going through the mandatory Equal Employment opportunity Commission process, a plaintiff can bring a lawsuit in a local federal district court) and has the right to get injunctive relief from a judge. Injunctive relief includes such things as reinstatement in a job or an order for backpay. Under Title VII, and hence under the ADA, plaintiffs are not allowed to seek general, compensatory damages. A plaintiff may not, for example, receive damages for pain or suffering. plaintiffs under the ADA will, therefore, not be made completely whole for acts of discrimination. (In this respect, while people with disabilities have the same remedies as do women under Title VII, they have fewer remedies than do individuals who have been discriminated against on the basis of race.) In addition, plaintiffs do not have the right to seek a jury trial. The EEOC may bring cases on behalf of victims of discrimination as they do under Title VII. * PUBLIC ACCOMMMODATIONS: The remedies available for violations of the public accommodation section are similar to those available under the employment section. The ADA incorporates the remedies available under Title II of the Civil Rights Act of 1964. Thus, plaintiffs have a private right of action and the right to seek injunctive relief from a judge. Private plaintiffs are precluded from seeking general, compensatory damages, including damages for pain and suffering. Following the pattern of other civil rights laws (such as the Fair Housing Act), the ADA gives the Attorney General the right to bring an action in cases of pattern or practice of discrimination or in suits of general public importance. In such cases, a judge can award the same type of injunctive relief available in private suits. The judge can also assess a civil penalty (not unlimited damages) of not more than $50,000 for the first violation and not more than $100,000 for a subsequent violation, if the judge determines such penalties are necessary "to vindicate the public interest." This standard means that civil penalties will be assessed only when such penalties are called for by the facts of the case. In addition, if the Attorney General requests it, the judge can award monetary damages to a person aggrieved by the discriminatory action. A private party may not, on his or her own, request such damages. * COMMUNICATIONS: The telecommunications relay services section of the bill amends the Communications Act of 1934 and uses the administrative remedies procedure established under that Act. Thus, in most situations, the Federal Communications Commission will handle complaints in the first instance. The Commission will refer complaints about intrastate telecommunications relay services to state agencies that have received Commission certification to implement those services. Plaintiffs have a private right of action to obtain review of Commission decisions in the federal courts. * PUBLIC SERVICES: The public services section of the ADA incorporates the remedies available under Section 505 of the Rehabilitation Act of 1973. These are the remedies currently available for violations of Section 504. Topic 32 ADA 9: EMPLOYMENT provisions uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) ADA 09: EMPLOYMENT PROVISIONS * The Americans with Disabilities Act (ADA) is patterned after Section 504 of the Rehabilitation Act of 1973. Section 504 is a law which prohibits discrimination against people with disabilities in a range of areas (such as employment, social services and education) on the part of entities that receive federal funds. It is a law which has been in effect, and which has operated well, for over a decade. * The ADA's employment provisions will ultimately cover all employers who have IS or more employees. This is the same scope of coverage which exists under Title VII of the Civil Rights Act of 1964 for race and sex employment discrimination. * The first basic employment provision of the ADA is that an employer may not refuse to hire a person with a disability, because of the person's disability, when that person is qualified to perform the job. This is exactly like the law which exists in race and sex discrimination. As in those areas, an employer can continue to have all types of job qualifications, such as requiring a certain educational level or requiring that the person be able to perform a certain function at a certain competence level. What an employer cannot do is to refuse to hire or to promote a person because of that person's disability, when that person otherwise meets all the qualifications of the job. * The second basic employment provision of the ADA is that an employer must make reasonable accommodations for a person with a disability, if that accommodation will allow the person to perform the essential functions of the job. This is a requirement that has been in place under Section 504 for 15 years. It is a very simple, yet essential, requirement. What it means is that if there is some modification in a job's requirements or structure that an employer can do, which will not cause the employer undue hardship, but which will allow the employee with the disability to do the job, that modification or change must be made. For example, if placing an amplifier on a telephone, or lowering a desk, or establishing a flexible word schedule will allow a person with a disability to perform a job, that type of accommodation could be required. * Under the ADA, whether an accommodation is ultimately required depends on two things. First, the accommodation has to really work; that is, it has to result in the employee actually being able to do all the essential functions of the job. Second, the accommodation may not impose an undue hardship on the employer. This is a long- standing standard under Section 504. It means that the accommodation cannot impose significant difficulty or expense on the employer, taking into account specifically the size of the business, the number of employees, the type of business, and the nature and cost of the accommodation. * The remaining provisions in the ADA's employment section are essentially subsets of these two main provisions and derive directly from the regulations and caselaw under Section 504. For example, an employer may not segregate or classify persons with disabilities in a way that adversely affects their employment status. An employer may not deny an employment opportunity to an individual because of the individual's need for a reasonable accommodation. Finally, any employment tests used by the employer that tend to screen out persons with disabilities must be shown to be job-related and consistent with business necessity. * With regard to religious entities, the ADA incorporates the "religious preference" provision that appears in Title VII. Under this provision, a religious entity can give preference in employment to individuals of a particular religion. The ADA also includes a second provision which states that a religious organization may require, as a qualification standard to employment, that all applicants and employees conform to the religious tenets of the organization. * The employment provisions of the bill do not take effect until two years after the ADA's date of enactment. This significantly delayed effective date was requested by the Administration during negotiations specifically to give businesses ample time to become informed regarding the provisions of the ADA. Upon the effective date, employers with 25 or more employees will be covered. Employers with 15 or more employees will be covered two years later. Topic 33 ADA 10: coverage of AIDS uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) * The Americans with Disabilities Act (ADA) is patterned after Section 504 of the Rehabilitation Act of 1973. People with AIDS and HIV infection have consistently been covered under Section 504. This coverage has ensured that people with AIDS and HIV have not been unfairly discriminated against in employment, education and services, in cases where the entities have received federal funds. * Coverage of people with AIDS and HIV has a wide range of support. organizations as diverse as the National Institute of Medicine, the American Medical Association, the American Public Health Association, the U.S. Conference of Mayors, and the United States Catholic Conference have expressed their support for such protection. * President George Bush publicly announced his support for anti-discrimination bill for people with disabilities in endorsing one of the primary recommendations of the Presidential Commission on the HIV Epidemic, which called for enactment of a broad-based disability anti- discrimination bill, including coverage for people with AIDS and HIV infection. * Secretary of Health and Human Services, Dr. Louis Sullivan, similarly noted the need for anti-discrimination protection for people with AIDS and HIV, and the Administration's support for such protection. Secretary Sullivan issued a statement on the ADA, which concluded: "Finally, I must add that discrimination against individuals infected with the virus is unacceptable. This is a point which has been made again and again, especially in the final report of the President's Commission on the HIV Epidemic and by President Bush. HIV infection cannot be spread by casual contact. There is no medical reason for discrimination. This Administration is committed to enacting legislation that viII prohibit such discrimination. For example, we are working with Congress on legislation, the Americans with Disabilities Act, which includes under its scope Americans with HIV infection. Passage of this law will protect these people from discrimination." * In testimony before the House Judiciary Committee on October l2, 1989, Attorney General Richard Thornburgh reaffirmed that "the views of the Presidential Commission on the HIV Epidemic and the views of Secretary Sullivan are the views of President Bush," and that the Administration strongly supported coverage of people with AIDS and HIV infection in the ADA. * To the extent that there is any fear that coverage of People with contagious diseases, such as HIV infection, will pose any problems with regard to protecting the health of others, the ADA (like similar legislation before it) provides that an individual with a currently contagious disease or infection who poses a direct threat to the health or safety of others is not protected. This is consistent with the law that has existed for years under Section 504 and is consistent with provisions in the Civil Rights Restoration Act and the Fair Housing Amendments Act. * At the Judiciary Committee hearing on October 12, 1989, Congressman Dannemyer suggested that people with disabilities should not include individuals with communicable diseases "who obtained the disease through intentional conduct." Congressman Dannemeyer explained that while he wished to cover infants with AIDS, hemophiliacs, and those who became infected through blood transfusions, he did not believe protection should extend to those who became infected through intentional sexual conduct or drug use. * This is an untenable and unacceptable exclusion. Section 504's definition of disability has never been tied to how a person became disabled. A person with heart disease, lung cancer or who is a paraplegic through a racing accident has the same protection as any other person with a disability even if the person "intentionally's engaged in overeating, smoking or car racing. Any effort to remove protection for people with disabilities based on how such individuals became disabled cuts into the very core of the bill--which is designed to prohibit irrational and unjustified discrimination taken on the basis of disability. Congressman Dannemeyer's proposal reflects exactly the type of prejudice and stereotype that the ADA is designed to eradicate. * Moreover, one key reason for the recommendation of the President's Commission on the HIV Epidemic and others for anti-discrimination protection for people with AIDS is to advance the public health goal of encouraging voluntary HIV testing. This goal would be directly undermined by the amendment suggested by Congressman Dannemeyer. * An effort to exclude HIV infection from coverage under the Fair Housing Amendments Act last year failed by a vote of 334-63 in the House of Representatives. Any effort to exclude HIV infection from coverage, or to exclude certain individuals who are HIV-infected from coverage, should similarly fail by a wide margin. Topic 34 Europe-wide Protest Day 5th of May uwe_frehse gen.diffable 5:30 pm Nov 28, 1991 (at asco.zer) (From News system) E N I L1 European Network on Independent Living2 Chair: Adolf Ratzka Steering Group Members: Secretary: Philip Mason Norrbackagatan 41 Uwe Frehse, Germany 4 Plantation Way 11341 Stockholm, Bente SkansgUerd, Norway Whitehill, Bordon Sweden Marry van Dongen, Netherlands Hants. GU35 9HD, U.K. Uwe Frehse John-F.-Kennedy-Str.56 3500 Kassel John-F.-Kennedy-Str. 56 W - 3500 Kassel Tel.: +49-561- 659 48 Tel.: +49-561 - 804 2764 FAX : +49-561 - 804 3388 E-Mail: uwefrehse (GreenNet) E-Mail: uwe_frehse@asco.zer Kassel in August 15, 1991 A Call for Participation in a Europe-wide Protest Day for Equal Rights and against Discrimination of Disabled People on 5th of May 1992 Since a comprehensive law against discrimination of disabled people was passed in the USA in 1990, a number of disability organizations in Germany and in other European countries have been advocating similar anti-discri-mination and equal rights laws in their countries as well. In Germany, for example, a national Coalition for the Equality of the Disabled has been formed and has already begun organizing conferences and other activities to promote such a law. Effective publicity and political lobbying is the first step towards achieving such legislation nationally and in the European Community. In this spirit the European Network on Independent Living (ENIL) -- in cooperation with the German umbrella organization on Independent Living, the "Interessenvertretung selbstbestimmt Leben in Deutschland" e.V. (IsL), and the German Coalition for Equality for the Disabled -- has decided to organize a Europe-wide Protest Day for Equal Rights and against Discrimination of Disabled People on Europe Day, 5 May 1992. The purpose of this day is to call attention to discrimination against disabled people in Europe and to demand a comprehensive legislative remedy for it. By organizing and sponsoring lectures, discussions, information booths, demonstrations, blockades of inaccessible buildings and transportation, visits to public officials, etc. in as many cities and countries as possible, we will begin an international campaign for equal rights for disabled people. With the administration of the German umbrella organization on Independent Living (I s L), the German representatives of the European Network on Independent Living (ENIL), will do general coordination of the protest day on the international level. This general coordination means that we will provide lists of the specific activities and of contact addresses for people and groups interested in participating. Additionally, we will coordinate the international publicity and produce documentation on the protest day. Parallel to this international coordination, one organization in each country will coordinate public relations in their country and mobilize groups and people to participate in the protest day. We are hoping to hear from groups in other European countries who would be interested in coordinating the protest day in their own country as soon as possible. Anyone interested in participating in the protest day should immediately contact: Uwe Frehse or Ottmar Miles-Paul John-F.-Kennedy-Str. 56 fab e. V. W - 3500 Kassel Weinbergstr. 1 Germany W - 3500 Kassel Tel.: (+49) 561- 804-2764 Germany Tel.: Q (+49) 561- 659 48 Tel. (+49) 561 - 18667 E-Mail: uwefrehse (GreenNet) E-Mail: miles-paul@asco.zer E-Mail: uwe_frehse@asco.zer 1 ENIL: The Regional Independent Living Development Programme affiliated to DPI - Europe 2 Independent Living: disabled people exercising choice and control