The Americans with Disabilities Act: A Brief Overview

The Americans with Disabilities Act: A Brief Overview

October 11, 2022
The Americans with Disabilities Act: A Brief Overview
The Americans with Disabilities Act (ADA), 42 U.S.C.
What Is a “Disability” Under the ADA?
§§ 12101 et seq., prohibits disability discrimination in many
The ADA defines disability as “a physical or mental
areas of life, from work to public services to commercial
impairment that substantially limits one or more major life
business. With some exceptions, the ADA covers every
activities,” “a record of such an impairment,” or “being
type of disability, including those that are physical,
regarded as having such an impairment.” 42 U.S.C.
psychological, and emotional. Covered entities must do
§ 12102(1). In other words, a person might experience
more than refrain from negative treatment of people with
discrimination due to a current, past, or assumed disability.
disabilities. The ADA requires changes to policies and the
removal of barriers that prevent people with disabilities
An impairment is any physiological or psychological
from enjoying equal opportunity. The ADA has three
disorder or condition. Impairments can include everything
primary titles covering three main areas of public life:
from cosmetic disfigurements to intellectual disabilities to
employment, government services, and public
contagious illnesses. But not every medical or physical
accommodations. Each title provides distinct protections,
condition is a disability. It must “substantially limit” a
procedures, and remedies. This In Focus briefly reviews the
“major life activity” (unless the individual makes a claim
ADA’s history and the key components of the three primary
based on being “regarded as” disabled). The ADA directs
titles.
that this is not a demanding standard. “Major life activities”
include basic activities and senses, such as walking,
History
hearing, seeing, standing, or learning; and bodily functions,
While it is perhaps the most familiar disability rights
such as the immune system, endocrine system, or
statute, the ADA was not the first. The Architectural
neurological function. A person has a disability if they are
Barriers Act of 1968 (ABA), 42 U.S.C. §§ 4151 et seq., was
limited in a major life activity compared to most people.
the first federal law to call for any entity to take affirmative
steps to eliminate disability access barriers. The ABA
Congress has advised that the term “disability” should be
requires most facilities newly constructed, altered, leased,
construed broadly, and that litigation under the ADA should
or financed by the federal government to be accessible to
focus mainly on whether discrimination has occurred, not
people with physical disabilities.
on whether a person is actually disabled.
The Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., a
The ADA does not allow people without disabilities to
much broader statute, was the first federal law to address
bring claims based on someone with a disability being
disability discrimination beyond physical access. Section
treated more favorably than them.
504 of the Rehabilitation Act, as amended, prohibits
disability discrimination in federal and federally funded
Title I: Employment
programs and activities. The Rehabilitation Act remains the
Title I of the ADA prohibits employers, including public
primary disability rights law in the federal sector, as the
employers, with 15 or more employees from discriminating
ADA does not apply to most parts of the federal
against qualified individuals with disabilities in the “terms,
government.
conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). A person is “qualified” when, either with or
The ADA and its implementing regulations incorporate
without reasonable accommodations, they can perform the
many concepts developed by Section 504 and apply them to
essential functions of a job. Disability discrimination
state and local governments and many private actors.
includes disparate treatment, disparate impact, and the
Courts recognize that the ADA is modeled after Section
denial of reasonable accommodations.
504 and tend to interpret the two laws consistently. In
passing the ADA and thereby expanding Rehabilitation Act
Disparate treatment occurs when an employer takes an
protections to these other actors, Congress recognized that
adverse employment action based on a person’s disability.
disability discrimination remained “serious and pervasive”
Disparate impact is the use of neutral standards, rules, or
and announced its intention “to provide a clear and
methods of administration that screen out or adversely
comprehensive national mandate” to achieve its
affect the employment opportunities or status of people
elimination. 42 U.S.C. § 12101(a)(2), (b)(1).
with disabilities. Everything from physical requirements to
inflexible break or leave policies to the use of inaccessible
Beyond the ADA, other federal disability laws apply to
software could be included. Practices that have a disparate
specific areas, such as housing, education, and voting.
impact on qualified individuals with disabilities are
permissible only if an employer can show that they are job
related and necessary for business.
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The Americans with Disabilities Act: A Brief Overview
Employers must also provide reasonable accommodations,
The Department of Justice (DOJ) is the primary
that is, “[m]odifications or adjustments . . . that enable an
enforcement agency for Title II, although it coordinates
individual with a disability” to do the job. 29 C.F.R.
with other agencies, particularly those that fund relevant
§ 1630.2(o)(1). Examples can include removing physical
public entities. Victims of discrimination may file an
barriers, job restructuring, transfers to other positions, and
administrative complaint before a lawsuit, but they do not
the provision of auxiliary aids and services (i.e.,
have to. The remedies under Title II derive from those
communication aids). Employers must engage in an
under Section 504. Claimants can recover some types of
interactive process with employees to determine what
monetary damages (which are uncapped) against localities
accommodations are available and reasonable.
for intentional discrimination. Courts have not resolved the
extent to which damages are available against states. Unlike
Employers need not provide accommodations that they
Title I, courts increasingly find that emotional distress
show pose undue administrative or financial hardship.
damages are unavailable under Title II. Injunctive relief and
Under this standard, an employer does not have to make a
attorney’s fees are available for any claim.
fundamental alteration to its business to accommodate an
employee. An employer also need not allow a direct threat
Title III: Public Accommodations
to health or safety, when that threat cannot be mitigated by
Title III bars disability discrimination in public
an accommodation. What accommodation may be
accommodations: businesses and nonprofits open to the
reasonable and whether it poses an undue hardship,
public. The ADA defines public accommodations
fundamental alteration, or direct threat requires a highly
categorically, that is, it spells out 12 basic types of covered
fact-specific and individualized inquiry.
private entities, including, for example, sales or rental
establishments, places of public gathering, and service
The Equal Employment Opportunity Commission (EEOC)
establishments. 42 U.S.C. § 12181(7). Title III prohibits
primarily enforces Title I. Title I claimants must file a
discrimination “on the basis of disability in the full and
complaint with the EEOC or with a similar state agency
equal enjoyment of the goods, services, facilities,
before going to court. The remedies for Title I violations
privileges, advantages, or accommodations of any place of
are the same as those under Title VII of the Civil Rights Act
public accommodation by any person who owns, leases (or
of 1964, covering employment discrimination based on
leases to), or operates a place of public accommodation.”
race, sex, and religion. Successful claimants can receive
42 U.S.C. § 12182(a). Title III also requires disability
injunctive relief (i.e., orders that certain acts be taken, such
access in educational and professional courses and testing.
as reinstatement or policy changes), attorney’s fees, and, in
some cases, monetary relief (subject to certain caps).
As in other parts of the ADA, discrimination under Title III
Monetary relief is unavailable against state employers.
includes disparate treatment, disparate impact, and the
denial of reasonable modifications. Much like Title II,
Title II: State and Local Government
public accommodations generally must serve people with
Title II prohibits public entities from discriminating against
disabilities in integrated settings and ensure effective
qualified individuals with disabilities. A public entity is any
communication. Whereas Title II requires a public entity to
state or local government and their agencies. (Specific
defer to some extent to a disabled person’s preferred
provisions of Title II apply to public transportation and are
communication aid, Title III requires public
not addressed here.) These entities may not subject people
accommodations only to consult with the disabled person to
with disabilities to discrimination or discriminate in their
determine the appropriate approach.
“services, programs, or activities.” 42 U.S.C. § 12132. Title
II applies to everything from public education to sidewalk
When it comes to architectural barriers, both Title II and
accessibility to public health programs to prisons.
Title III require new construction to meet accessibility
standards. Title III uniquely requires covered entities to
Individuals must be “qualified,” either with or without
improve physical accessibility in pre-ADA facilities if to do
reasonable modifications, to participate in public programs
so is “readily achievable,” that is, “easily accomplishable”
or receive services. Like Title I, discrimination under Title
and not too expensive. 42 U.S.C. § 12181(9).
II includes disparate treatment, disparate impact, and the
denial of reasonable modifications. Public entities must also
DOJ primarily enforces Title III. Claimants may first file a
provide programs “in the most integrated setting
complaint with DOJ, or they can simply go to court.
appropriate to the needs of qualified individuals with
Damages are unavailable under Title III, except in lawsuits
disabilities.” 28 C.F.R. § 35.130(d). They thus must avoid
brought by DOJ. Aside from attorney’s fees, successful
unnecessarily institutionalizing or segregating people with
litigants are entitled to injunctive relief.
disabilities. Covered entities must also communicate with
people with disabilities as effectively as they communicate
Considerations for Congress
with others and must respect a disabled person’s preferred
Disability discrimination is regulated by a complex set of
communication aids and services.
statutes—not only the ADA, but the ABA, Rehabilitation
Act, and several others. Many of these laws cross-reference
As under Title I, public entities need not provide
each other. When legislating in this area, Congress may
modifications they show pose a fundamental alteration or
consider whether to amend multiple statutes. Within the
undue burden, nor need they allow a direct threat to safety
ADA itself, different rules apply to different contexts.
that a reasonable modification cannot mitigate.
Congress may also consider, when passing new laws, if it
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The Americans with Disabilities Act: A Brief Overview
wants uniformity or context-specific procedures, rules, and
Abigail A. Graber, Legislative Attorney
remedies.
IF12227

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