Policy Guidance: Provisions of the Americans with Disabilities Act of 1990: Summary of the Act and Responsibilities of the EEOC in Enforcing the Act's Prohibitions Against Discrimination in Employment on the Basis of Disability

N-915.055

August 14, 1990

1. SUBJECT: Policy Guidance: Provisions of the Americans With Disabilities Act of 1990: Summary of the Act and Responsibilities of the EEOC in Enforcing the Act's Prohibitions Against Discrimination in Employment on the Basis of Disability.

2. PURPOSE: This Notice provides information on the major provisions of the Americans with Disabilities Act of 1990 and explains the Commission's responsibilities to implement and enforce the employment provisions of the Act.

3. EFFECTIVE DATE: Upon Receipt.

4. ORIGINATOR: Coordination Division, Office of the Legal Counsel.

5. INSTRUCTIONS: This is the first appendix to the 900 series of Volume II of the Compliance Manual.

6. SUBJECT MATTER:

The Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336 (July 26, 1990), is a comprehensive antidiscrimination statute that prohibits discrimination against disabled individuals in private and state and local government employment, public accommodations, public transportation, state and local government services, and telecommunications. The purposes of the ADA are to provide a clear national mandate to end discrimination against individuals with disabilities and to provide strong, consistent, enforceable standards prohibiting discrimination against individuals with disabilities. (Sec. 2(b)(1)(2).)[1]

The ADA consists of five Titles. Title I of the Act, which is enforced by EEOC, prohibits employment discrimination against qualified disabled individuals. The underlying theory of discrimination in Title I is essentially that developed under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et. seq., and in particular in regulations implementing section 504 of that Act.[2] Title I join this theory of discrimination with the enforcement provisions of Title VII. It provides that the "powers, remedies, and procedures set forth in sections 705, 706, 707, 709 and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be the powers, remedies, and procedures this title provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability...." (Sec. 107(a).) Title I becomes effective on July 26, 1992. For the first two years after the effective date, employers with 25 or more employees are covered. Employers with 15 or more employees are covered as of July 26, 1994.

Title II applies to public services provided by state and local governments, and in particular to transit provided by public agencies; Title III applies to public accommodations, defined broadly to include most private establishments providing service to the public, with a separate section on public transportation provided by private entities; Title IV requires telephone companies to provide relay services that will enable persons with hearing impairments to communicate freely. Title V contains miscellaneous provisions, including requirements for technical assistance, that apply to the other titles, and makes certain changes in the Rehabilitation Act.

The following is an overview of the major provisions of the ADA, with emphasis on its employment provisions and the Commission's responsibilities under the Act.

Title I. Employment

Section 102 of the Act makes it unlawful for a covered entity to discriminate against any qualified individual with a disability because of that individual's disability in regard to job application procedures; the hiring, advancement or discharge of employees; compensation; job training; and other terms, conditions, and privileges of employment. Section 101(2) of the Act defines the term "covered entity" to mean "an employer, employment agency, labor organization, or joint labor-management committee." The definitions of the terms "employment agency" and "labor organization" contained in § 701 of Title VII are incorporated by reference into the ADA. (Sec. 101(7).) The term "employer" is also defined as it is in Title VII except, as noted above, for the first two years after the effective date, it includes only employers who employ 25 or more employees. (Sec. 101(5)(A).) The term "employer" does not include the United States, a corporation wholly owned by the government of the United States, an Indian Tribe, or a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of the Internal Revenue Code of 1986. (Sec. 101(5)(B).)

A. Who Is Protected

Title I of the ADA prohibits discrimination against qualified individuals with disabilities. (Sec. 102(a)). Thus, in order to be accorded the protections of the Act, an individual must be "disabled" and "qualified" to perform the job. The Act defines the term "disability" to mean "a physical or mental impairment that substantially limits one or more of the major life activities of an individual; having a record of such an impairment; or being regarded as having such an impairment." (Sec. 3(2)). The term "qualified individual with a disability" means an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." (Sec. 101(8)).

The definitions of the terms "individual with a disability"[3] and "qualified individual with a disability" and the term "reasonable accommodation," which is part of the latter definition, are central to the nondiscrimination mandate of the ADA. The statute itself contains detailed guidance on these terms, drawn from Rehabilitation Act regulations. The Commission will develop regulations and compliance manual sections that will provide additional guidance prior to the effective date of the Act. (See pp. 10 - 11 below.)

B. Discrimination Defined

The ADA expressly defines the term "discriminate." Section 102(b) of the Act provides that the term includes:

· Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects his/her opportunities or status because of the disability of the individual (e.g., making employment decisions on the basis of presumptions about the abilities of a class of individuals rather than on the basis of facts regarding an individual applicant or employee);

· Participating in a contractual or other arrangement (e.g., collective bargaining agreements, agreements with employment agencies or training/apprenticeship programs) that has the effect of subjecting a qualified applicant or employee with a disability to discrimination prohibited by Title I;

· Utilizing standards, criteria, or methods of administration that have the effect of discriminating on the basis of disability, or that perpetuate the discrimination of others who are subject to common administrative control;

· Discriminating against a qualified individual because that individual is known to have a relationship or association with an individual with a disability, such as a spouse;

· Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless such entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business, or denying employment opportunities to such a job applicant or employee if the denial is based on the need to provide reasonable accommodation;

· Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria is shown to be job-related for the position in question and is consistent with business necessity;

· Failing to select and administer tests concerning employment in the most effective manner to ensure that the test results accurately reflect the abilities of an applicant or employee with a disability, rather than his or her impaired sensory, manual, or speaking skills, except where the intent of a test is to measure those factors.

Section 102(c) specifically applies the prohibitions against discrimination to medical examinations and inquiries. The Report of the House Committee on Education and Labor explains the reasons for these explicit provisions:

Historically, employment application forms and employment interviews requested information concerning an applicant's physical or mental condition. This information was often used to exclude applicants with disabilities...before their ability to perform the job was even evaluated. In order to assure that misconceptions do not bias the employment selection process, the legislation sets forth a process which begins with the prohibition to pre-offer medical examinations and inquiries.

(Committee Report at pp. 72 - 73). A covered entity cannot conduct a medical examination or ask a job applicant if (s)he is an individual with a disability or inquire about the nature or severity of the disability before an offer of employment is made. (Sec. 102(c)(2)(A).) However, it is permissible to make preemployment inquiries into the ability of an applicant to perform job-related functions so long as the inquiries are not phrased in terms of disability. (Sec. 102(c)(2)(B).) For example, an employer may ask whether an applicant can type if typing is an essential job function but may not ask whether the applicant has a visual disability.

A covered entity may require a medical examination and may condition an offer of employment on the results of this examination after an offer of employment is made, but before the individual actually begins work, if all entering employees in the same job category must take the examination regardless of disability. In addition, information obtained regarding the medical condition or history of the applicant must be collected and maintained on separate forms and in separate medical files, and treated as confidential,[4] and the results of the physical examination must be used only in accordance with the employment provisions of the ADA, i.e., used as the basis for denying employment only if they render the individual not qualified for the job with or without reasonable accommodation. (Sec. 102(c)(3).)

The Act prohibits medical examinations of employees or inquiries about whether an employee is an individual with a disability or about the nature or severity of a disability, unless the examination or inquiry is job-related and consistent with business necessity. (Sec. (102(c)(4)(A).) A covered entity may conduct voluntary medical examinations as part of an employee health program available to all employees. (Sec. 102(c)(4)(B).) Information obtained about the medical condition or history of employees is subject to the same requirements regarding confidentiality and maintenance of the information as applied to information obtained during post-offer medical examinations and inquiries. (Sec. 102(c)(4)(C).)

C. Retaliation

Like Title VII, the ADA prohibits a covered entity from discriminating against any individual for filing a charge of discrimination, opposing any practice or act made unlawful by the Act or for participating in any proceeding under the Act. (Sec. 503(a)). It is also unlawful to coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of his/her rights under the Act or because (s)he aided or encouraged any other individual in the exercise or enjoyment of rights under the Act. (Sec. 503(b).)

D. Defenses

The ADA contains specific defenses that a covered entity may raise to a charge of discrimination. If a charging part alleges that the application of qualification standards,[5] tests, or selection criteria screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability, the covered entity may raise, as a defense to the charge, that the qualification standards, tests or selection criteria have been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation. (Sec. 103(a)).

The Act contains a defense which may be raised by religious entities. Section 103(c)(1) provides that the employment provisions of the Act do not prohibit a religious corporation, association, educational institution or society from giving preference in employment to individuals of a particular religion to perform work connected with the organization's activities. This provision is similar to § 702 of Title VII and should be interpreted in a consistent manner. In addition, the ADA adds a provision not in Title VII, stating that a religious organization may require that all applicants and employees conform to the religious tenets of the organization. (Sec. 103(c)(2)).

The ADA also contains a defense pertaining to infectious and communicable diseases. The Secretary of Health and Human Services is required to review all communicable diseases that may be transmitted through handling the food supply, and then publish a list of diseases that actually are transmitted through food handling. (Sec. 103(d)(l)(A)(B).) The list must be updated annually. The Secretary is also required to publish the methods by which such diseases are transmitted, and to widely disseminate the list and the methods of transmission. (Sec. 103(d)(1)(C)(D).) A covered entity may refuse to assign or continue to assign an individual who has a disease included on the list to a job involving food handling, if the risk of transmitting that disease to others through the handling of food cannot be eliminated by reasonable accommodation.

The Act does not affect State, county, local law or ordinance or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health and safety of others which cannot be eliminated by reasonable accommodation pursuant to the list of diseases and methods of transmission published by the Secretary.

(Sec. 103 (d)(3)).

E. Reasonable Accommodation

As indicated above, it is a violation of the Act to fail to provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability unless to do so would impose an undue hardship on the operation of the covered entity's business. (See pp. 3 - 4 above.) The duty to provide reasonable accommodation encompasses any appropriate response to the needs of a particular individual with a disability that will provide the individual with an equal opportunity to be employed or to advance in an identified job or jobs. The term "reasonable accommodation" is defined to include making existing facilities accessible; job restructuring; part-time or modified work schedules; reassignment to a vacant position; appropriate adjustment or modification of examinations, training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations. (Sec. 101(9)). However, these examples are not meant to be exhaustive, but rather to provide examples of the nature of the obligation.

A covered entity is not obligated to provide reasonable accommodation if it can demonstrate that the accommodation would cause an undue hardship on the operation of its business. An undue hardship exists when an accommodation would require "significant difficulty or expense" when considered in light of the factors set forth in the Act. (Sec. 101(10)(A)). Those factors are:

(i) the nature and cost of the accommodation needed under this Act; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, and fiscal relationship of the facility or facilities in question to the covered entity.

(Sec. 101(10)(B)). The weight given to each factor in making a determination of "undue hardship" will vary depending on the facts of a particular situation and turns on both the nature and cost of the accommodation in relation to the employer's resources and operations.

F. Illegal Use of Drugs and Alcohol

The ADA contains several provisions pertaining to the illegal use of drugs and alcohol.[6] Section 104(a) of the Act provides that the term "qualified individual with a disability" does not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. Therefore, if an employer discharges an employee because (s)he engages in the illegal use of drugs, that employee would not be a qualified individual with a disability. However, § 104(a) does not exclude an individual who:

· has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

· is participating in a supervised rehabilitation program and is no longer engaging in such use; or,

· is erroneously regarded as engaging in such use but is not engaging in such use.[7]

(Sec. 104(b)). In addition, the Act provides that nothing in Title I should be construed to encourage, prohibit or authorize the testing of employees or applicants for the illegal use of drugs, or making employment decisions based on the test results. (Sec. 104(d)(2)). A test to determine the use of illegal drugs is not considered a medical examination. (Sec. 104(d)(1)).

The Act also contains several provisions which expressly permit a covered entity to prohibit the illegal use of drugs and the use of alcohol at the workplace, and to require that employees not be under the influence of alcohol while working. (Secs. 104(c)(1)(2)(3) and (5)). In addition, the Act permits a covered entity to hold an employee who uses drugs illegally or is an alcoholic to the same behavior and performance standards as it holds other employees even if his/her unsatisfactory performance or behavior is related to the employee's drug use or alcoholism. (Sec. 104(c)(4)).

G. Insurance

Section 501(c) of the Act contains several provisions related to the underwriting, classifying and administration of insurance risks. The Senate Report makes clear that the intent of the insurance provisions is to protect "the way the insurance industry does business in accordance with the State laws and regulations under which it is regulated."[8] Section 501(c) is intended to afford to insurers (and employers) the same opportunities that they have enjoyed in the absence of the ADA to design and administer insurance products "in a manner consistent with basic principles of insurance risk classification."[9] Thus, an insurer that maintains insurance restrictions that discriminate against individuals with disabilities or have a disparate impact on a class of individuals with disabilities would not be liable for that discrimination under the ADA if the discriminatory restrictions are the result of traditional risk assessment considerations as regulated by State law. Only if it can be shown that the discriminatory restrictions are a "subterfuge" to evade the purposes of the ADA and not just the result of the application of valid risk assessment principles, would the covered entity or insurance company likely be held liable under the ADA.

H. Regulations and Enforcement

As noted above, the Commission enforces the employment provisions of the ADA. Therefore, individuals who believe that they have been discriminated against on the basis of disability may come to the Commission to file an administrative charge of discrimination.[10] Since section 107(a) of the Act incorporates the rights, remedies and procedures of Sections 705, 706, 707, 709 and 710 of Title VII into the ADA, the Commission will process ADA charges like it processes charges filed under Title VII, including the deferral of charges to 706 agencies. Similarly, the remedies available to Title VII claimants will also be available to individuals who file charges under the ADA.

Unlike Title VII, the ADA gives the Commission the authority to engage in substantive rulemaking. Section 106 of the Act requires the Commission to issue substantive regulations implementing the employment provisions of the Act, not later than July 26, 1991. Many of the terms and concepts discussed in this Notice will be explained further in these regulations. The Commission will also issue procedural, reporting, and recordkeeping regulations.

Section 107(b) of the Act requires the Commission and other agencies with enforcement authority for employment nondiscrimination requirements under the Rehabilitation Act to establish coordination procedures in their regulations to avoid duplication and inconsistent or conflicting standards in processing complaints. The statute requires that these procedures be established within eighteen months after its enactment.

The Commission is also required, as part of its enforcement responsibilities, to provide technical assistance to employers and interested individuals and organizations regarding their rights and obligations under the Act. The Attorney General is required to develop a plan, in consultation with the Commission and other agencies with ADA enforcement authority, to assist covered entities in understanding and carrying out their responsibilities under the Act. The plan must be published for public comment six months after the date of enactment. The Commission and the Attorney General will implement the plan for Title I. (Sec. 506.) The Commission is also required to develop and publish a technical assistance manual to help employers comply with Title I of the Act six months after publication of the final regulations implementing Title I. The manual will provide further explanation and illustrative examples of the statutory and regulatory provisions. (Sec. 506(c)(3)).

In addition to the technical assistance activities mandated by the Act, the Commission will conduct several technical assistance initiatives during the two-year period between the passage of the Act and its effective date. For example, we will begin employer training on the ADA and issue two informational booklets, one for employers and one for employees and job applicants. The technical assistance program will be an ongoing part of the Commission's ADA enforcement responsibilities. We anticipate that there will be staff at Headquarters and in the field, who will work exclusively on the technical assistance program.

During the two-year period between enactment and the effective date of the employment provisions of the Act, the Commission will also develop several additional policy documents. The Commission plans to develop compliance manual sections on the "Theories of Discrimination," the "Definition of Disability", "Definition of Qualified Individual with a Disability" and "Reasonable Accommodation and Undue Hardship." It also plans to issue a policy guidance on "Preemployment Inquiries." These documents will provide basic guidance that field staff will need to begin processing charges on the effective date of the Act.

Title II. Public Services

Title II applies to public services provided by State and local governments. Subtitle A contains general provisions providing that "no qualified individual with a disability shall, by reason of such disability, be excluded from the participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." (Sec. 202.) Subtitle B contains provisions regarding accessibility requirements applicable to public transportation provided by public transit authorities. The general provisions will be enforced by the Department of Justice and become effective eighteen months after the date of enactment. The public transit provisions of Title II will be enforced by the Department of Transportation and will become effective from the date of enactment up to eighteen months after enactment. (Sec. 231(a)).

Title III. Public Accommodations and Services Operated by Private Entities

The public accommodations provisions of the ADA contain a much broader definition of "public accommodations" than that in the 1964 Civil Rights Act. It reflects Congressional intent that people with disabilities should have equal access to all private establishments that are available to the public. Title III provides 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, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation." (Sec. 302(a)). The term "full and equal enjoyment" means the right to participate and to have an equal opportunity to obtain the same results as others. Public accommodations include restaurants, theaters, hotels, grocery stores, parks, health spas, banks and other similar places of business. (Sec. 301(7)). Title III also contains prohibitions against discrimination in public transportation services provided by private entities. This title also becomes effective eighteen months after the date of enactment and will be enforced by the Department of Justice.

Title IV. Telecommunications Relay Services

Title IV requires that telephone services offered to the general public include telecommunication relay services so that individuals who use non-voice terminal devices because of disabilities will have opportunities for communication that are equivalent to those available to individuals who use voice telephone services. Title IV is enforced by the Federal Communications Commission.

Additional Information

The Attorney of the Day in the Office of Legal Counsel should be contacted if you have additional questions regarding the employment provisions of the ADA.

Date: August 14, 1990 APPROVED: __________________ Evan J. Kemp, Jr.

Chairman

 

[1]Subsequent citations are to the section number of the ADA.

[2]Section 504 of the Rehabilitation Act prohibits discrimination against qualified individuals with handicaps by recipients of federal financial assistance and the federal government.

[3]The Act excludes certain conditions from the definition of the term "disability". That term does not apply to an individual solely because (s)he is a transvestite. (Sec. 508.) The term also does not include homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders. Compulsive gambling, kleptomania, pyromania or psychoactive substance use disorders resulting from current illegal use of drugs are also excluded from the definition of the term "disability". (Sec. 511.) The Act also excludes from the definition of the term "individual with a disability", individuals who are currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. (See pp. 8 - 9 infra.)

[4]The Act permits covered entities to inform supervisors and managers of necessary restrictions on the work or duties of the employee, and of necessary accommodations. In addition, first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment. Covered entities are also required to provide relevant information to government officials investigating compliance with the ADA upon request. Sec. 102(c)(3)(B)(i), (ii), and (iii).

[5]The term "qualification standard" may include a requirement that an individual not pose a direct threat to the health or safety of other individuals in the workplace. (Sec. 103(b).) The term "direct threat" is defined by the Act to mean "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." (Sec. 101(3).)

[6]The term "illegal use of drugs" means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. (21 U.S.C. 812.) The term does not "include the use of a drug taken under supervision by a licensed health care professional or other uses authorized by the Controlled Substances Act or other provisions of Federal law." (Sec. 101(6)(A).) The tern "drug" "means a controlled substance as defined in Schedules I through V of the Controlled Substances Act." (Sec. 101(6)(B)).

[7]It is not unlawful for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual is no longer using illegal drugs. (Sec. 104(b).)

[8]Senate Report at 84.

[9]Senate Report at 85.

[10]Individuals seeking to file charges before July 26, 1992, should be referred to an appropriate federal or state agency. (See memorandum from James Troy to the District Directors on "Information on Federal Laws and Resources Affecting Individuals with Disabilities, for Referrals and Response to Inquiries," dated August 7, 1990.)