Show 25 - Frequently Asked Questions


Jacquie Brennan answers your frequently asked questions about the Americans with Disabilities Act, including specific questions about employment, state and local governments, places of public accommodation, and the ADAAA.


You’re listening to the disability law low down pod cast, show number 25. With your host Jacquie Brennan.

We answer a lot of questions here at the southwest ADA center and today’s podcast is really going to be an overview of some of those frequently asked questions. Today I am going to do frequently asked questions about the Americans with Disabilities Act. And I have sort of divided these into the Americans with Disabilities Act, an overview, and then Title 1, Title 2, Title 3. So we’ll just go over a few of the main questions that we get about the ADA.

The first question is, “what is the definition of disability”? It’s important to remember that disability is a legal term rather than a medical one, and because it has a legal definition, that definition is different in different laws. So just about every federal law that mentions disabilities will have a different definition of disability. But for the ADA it defines a person with a disability as a person who has a physical or mental impairment that substantially limits, one or more major life activities. And this also includes people who have a record of impairment, even if they don’t currently have a disability that meets that first part of the definition and it also includes individuals who do not have a disability but are regarded as having a disability by whatever entity is discriminating against them. The ADA also makes it unlawful to discriminate against a person based on that persons association with a person with a disability. What do you mean by association with a person with a disability? Well, if I don’t have a disability but let’s say I work at a, in an HIV clinic. It would not be legal for someone to discriminate against me based on the fact that I work with or associate with people who have HIV. What are major life activities? Well major life activities are those functions that are important to most people’s daily lives. Like breathing, walking, talking, hearing, seeing, sleeping, caring for oneself, performing manual tasks and working. But even that list is not an exhaustive list, and the law says that other things may be considered major life activities. A record of an impairment means that a person has a history of or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities, even though the person does not currently have a disability. Can you give me an example of someone who has a record of an impairment without having a disability? Okay. A man who is in line for a promotion and has a history of cancer treatment, although he is now free of cancer. He is not given the promotion because his bosses are worried that if his cancer returns he won’t be able to do the job. He does not at this point meet that first part of the definition because he doesn’t have an impairment that substantially limits one or more major life activities. However, based on his record of having an impairment he’s being discriminated against.

What does “regarded as having an impairment” mean?

Well regarded as means that the person either has an impairment that doesn’t substantially limit a major life activity or has an impairment that substantially limits a major life activity only as a result of the attitudes of other people towards him or does not have an impairment but is treated by an entity as if an impairment exists. Can you give me an example of someone who is regarded as having an impairment but doesn’t have a disability? Sure. Okay, a woman applies for a job as a customer service representative at a department store. Her face is badly scarred from an automobile accident that resulted from a fire. The interviewer doesn’t want to give her the job in spite of her skills and experience because he thinks customers will be uncomfortable looking at her. She’s not substantially limited in any major life activity but the interviewer is regarding her as if she has a disability. Are all people who have disabilities covered by the ADA? Well on this one I have to give you the lawyer answer. It depends. All people who meet the ADA definition of disability are covered by the ADA in general. But they still may not have rights under particular sections of the ADA. For example as we’ll talk about in a minute, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by the other parts of the ADA. Are psychiatric disabilities covered too? Yes. The ADA definition of disabilities includes mental as well as physical impairments. How many people in the United States have a disability? According the survey of income and program participation data, which is called SIP data, approximately 54 million Americans have a disability.

What kinds of things does that ADA cover? The ADA is divided into five sections called Titles. Each Title covers a different area. Title 1 covers employment, Title 2 covers state and local government programs, Title 3 covers places of public accommodation Title 4 covers telecommunications, and Title 5 has several miscellaneous provisions that cover things like retaliation and attorney fees. I have heard that there is a new ADA out there. Are the questions you’re answering covered by the new ADA or the old ADA? Well actually what you might have heard called the new ADA is really called the ADA amendments act or the ADA AA, which is really hard to say fast. You have to have a pretty good understanding of the ADA to understand the details of why we needed an amendments act for it and there is a previous podcast you can listen to that goes more in depth into why we needed to get this amendments act.

But, let me see if I can sum it up in fewer words. After the ADA was passed in 1990, cases started being filed and ending up in the courts. Some were appealed all the way to the U.S. Supreme Court and the ADA began to change. Rulings by the Supreme Court as well as lower courts began to narrow the definition of disability. After its first dozen years, the definition of disability had become the focus of most of the disputes but congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret and ultimately change the definition. So on January 1, 2009 the ADA amendments act became effective. It essentially overturned those Supreme Court cases that narrowed the definition of disability and it made clear that the definition must be construed in favor of broad coverage of individuals with disabilities. So rather than this being really a new ADA, its really just going back to the way congress meant the ADA to be when it was first written and passed back in 1990.

Okay so now let’s talk about some frequently asked questions regarding Title 1 of the ADA, which covers employment. As long as I meet the ADA definition of disability, am I covered by Title 1?

Not necessarily. Because Title 1 is about employment, a person must meet that definition of disability that we just talked about and must also be a qualified individual. And that means that you have the skill, experience, education that the job requires. In other words, if you have a disability and you apply for the job of a foreign language translator it would not be discriminatory for the employer to require you to have the skill, experience, and education to be able to translate a foreign language. I mean, that just makes sense, and its in the law and is important to know. The other part about being a qualified individual with a disability in terms of employment is that you have to be able to perform the essential functions of the job with or without reasonable accommodation. Now, essential functions are basic job duties. To determine if a job duty is an essential function, you look at factors like whether the position exists to perform that function, the number of other employees available to perform that function, or among whom the function could be distributed, and the degree of expertise needed to perform that function.

Are all employers covered by Title 1 of the ADA?

No. Title 1 of the ADA applies to private employers with 15 or more employees. So if they have fewer than 15 employees, unless your state has a statute that makes that a lower number according to the ADA, if they have fewer than 15 employees they are not covered. And this is the same for all employment discrimination statutes, uh, such as Title 7 of the civil rights act and the age discrimination and employment act. But the ADA also applies to all state and local governments, employment agencies, and labor unions as well.

What kind of employment practices are covered by Title one of the ADA?

All of them. Applying for a job, hiring, firing, promotions, compensation, training, recruitment, advertising, layoffs, leave, employment benefits, and all other conditions and privileges of employment are covered.

When should I tell an employer that I have a disability?

Well, there is no one specific answer to this. It really depends on your individual situation. If you need your employer to accommodate you then at that time you will probably have to tell your employer about your disability. But if you don’t need an accommodation then it is really just a personal decision about when or even whether to tell your employer. But do remember that if you haven’t disclosed to your employer that you have a disability it will be very difficult later for you to say that you’ve been discriminated against based on your disability when you have nothing to show that they even knew about the disability.

Can an employer make me have a medical exam or ask questions about my disability? A potential employer may not ask you whether you have a disability or any questions about the nature or severity of the disability. However, a potential employer may ask questions about the ability to perform specific job functions and may ask an individual with an obvious disability to describe or demonstrate how those functions would be performed. An employer may not ask a job applicant to take a medical exam before making a job offer, but its alright for an employer to condition a job offer on the result of a medical exam if this is required of all entering employees in that same job category.

What is a reasonable accommodation? A reasonable accommodation is any kind of modification or adjustment to a job or to the work environment that makes it possible for a qualified applicant or employee with a disability to either participate in the job application process or to perform essential job functions. Reasonable accommodation also includes adjustments to make sure the individuals with disabilities have the same rights and privileges as individuals without disabilities in the work place.

Can you give me some examples of reasonable and unreasonable accommodations? Examples of reasonable accommodations might include things like making the work place accessible to and usable by an employee with a disability, restructuring a job, modifying work schedules, providing qualified readers or interpreters or modifying equipment. Reassigning a current qualified employee who is unable to do the current job even with an accommodation to a vacant position might also be a reasonable accommodation. There’s no obligation though to find a vacant position for an applicant who is qualified to perform the job for which she or he is applying. Examples of accommodations that are not reasonable and not required are lowering quality or quantity standards or providing personal use items like eye glasses, wheel chairs, or hearing aids.

Are there any limits on providing reasonable accommodations?

Well, keep in mind that the person requesting the accommodation must be otherwise qualified and able to perform the essential functions of the job with or without reasonable accommodations. Also, the disability must be known to the employer. The employer is not required to make an accommodation if doing so would be an undue hardship on the operation of the business.

What’s an undue hardship? Undue hardship is an action requiring significant difficulty or expense. This is decided by looking at factors like the nature and cost of the accommodation compared to the size, resources, and structure of the business. If the business making the accommodation is part of a larger entity the overall resources of the larger organization would be considered.

So if the employer can show my accommodation request is an undue hardship am I out of luck? No. Even if a particular accommodation would be an undue hardship on the employer, the employer has to find another accommodation that would not pose an undue hardship. If the cost of the accommodation poses an undue hardship, the employer should pay the cost up to the point that there is an undue hardship and then allow the employee the option of paying the other portion of the cost.

Okay, I’m going to move on now to some frequently asked questions from Title 2 of the ADA which covers state and local governments.

The city hall in my town is a very old building and I’ve been told that because it’s a historical building it doesn’t have to comply with the ADA, is that true?

Structural changes to facilities that are historically significant facilities, meaning they are listed in the national registrar of historical places or designated as historic under the state or local law, might threaten or destroy the historical significance of the property, so the ADA might not require those kinds of structural changes. Even if that’s the case though the entity must consider alternatives to such changes, these might include providing the government service in another building or depending on what is offered in the building using audiotape or video images to show the inaccessible parts of the property. If alterations are made to the property though, then those changes must conform to the ADA standards for accessible design, which has a separate section about historic buildings, or the uniform federal accessibility standards to the maximum extent feasible.

What about buildings that aren’t really historical but were built before the ADA went into effect? Does the local government have to make those buildings accessible? Government entities have to make sure that people with disabilities are not excluded from government services, programs, or activities just because the buildings were there before the ADA and are not accessible. Government programs, when viewed in their entirety have to be readily accessible to people with disabilities. This standard is called program accessibility. Governments don’t necessarily have to make those older facilities accessible, but they do have to make the programs accessible. They can do that by making the building accessible by building another facility that is accessible and offers the same programs and services, or by moving the programs and services to a place that is accessible.

Most of the time when people talk about accessibility, they are talking about wheel chair access. I’m deaf and I need an effective communication for accessibility. Does my local government have to provide communication for me if I am deaf? Yes. The government must provide communication with individuals with disabilities that is effective as communications with others unless doing so would be an undue financial or administrative burden or would cause a fundamental alteration of the program. The government entity must provide auxiliary aids and services when those are necessary for effective communication. What effective communication means though might be different in different situations. For example, if a person is deaf and is going to the city to pay a water bill, because this would be just a routine transaction that require little back and forth communication it would probably not require the use of a sign language interpreter. Just writing and gestures could be effective communication under those circumstances. But if there is a town hall meeting at which citizens will interact with officials and important topics will be discussed that same person may need a sign language interpreter to effectively communicate and participate in the meeting.

I went to a county owned museum, and the staff refused to allow me to take the tour because I am blind. They said they have a separate tour once a week for people who are blind, where you can touch the objects. I would probably enjoy that, but I wanted to go to the tour right then with my friends. Is it legal for them to have a separate tour just for people who are blind?

Yes. They can offer a separate tour for people who are blind. Sometimes museums do this just so they can allow visitors a chance to touch those specific items that are generally not available for museum visitors to touch. However, the museum cannot deny you access to the general tour just because they have that special tour available. You can go on either tour, although the museum does not have to allow you to handle objects that the general public is not allowed to handle on the general tour.

Do state and local police have obligations under the ADA?

Yes, the ADA effects everything that officers, deputies, and other law enforcement personnel do, receiving citizen complaints, interrogating witnesses, arresting, booking, holding suspects, operating 911 emergency centers, providing emergency medical services, enforcing law and all other duties.

How is Title 2 of the ADA enforced?

Individuals may file private lawsuits or they may file complaints for the department of justice or another appropriate federal agency.

Okay, moving on to Title 3. Title 3 covers public accommodations.

What are public accommodations under the ADA? A place of public accommodation is a facility whose operations effect commerce and falls into at least one of the following categories: places of lodging, like Inns, hotels, motels. Places that serve food or drink, restaurants and bars. Places of exhibition or entertainment, like theaters, concert venues, stadiums, arenas. Places of public gathering, like auditoriums, convention centers, lecture halls, sales or rental establishments, stores shopping centers, service establishments, banks, beauty shops, travel services, repair services, funeral homes, gas stations, professional offices, hospitals, public transportation terminals, depots, or stations. Places of public display or collection like museums, libraries, art galleries. Places of recreation, parks, zoos, amusement parks, gyms, pools. Places of education, nursery schools and preschools, elementary schools, secondary, undergraduate, post graduate, trade schools, technical schools. Social service center establishments like day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies, or places of exercise and recreation: gyms, health spas, bowling allies, golf courses. All of those are covered. Also private entities that offer exams or courses are covered by Title 3 of the ADA.

So what does Title 3 of the ADA require of these places? Places of public accommodation may not discriminate against people with disabilities and may not deny full and equal enjoyment of the goods and services offered by the place of public accommodation.

Do both buildings and parking lots have to be accessible to individuals with disabilities? Yes. Parking lots are also covered by the ADA with specific requirements for the number of spaces that must be accessible relative to the total number of spaces in the parking lot.

I had a meeting with my lawyer and because I’m deaf I requested a sign language interpreter. The lawyer aloud the sign language interpreter to be there but said I had to pay for it. Is that legal? No. In a case like that, the lawyer must pay for the sign language interpreter. The only way around that is if the lawyer can prove it would be an undue burden in light of all the resources available to the lawyer including things like tax credits and tax deductions. Undue burden is a fairly tough standard though because it isn’t enough for a business of any entity to just say that costs more than I want to spend or I don’t have that kind of money in the budget. A court will look, not only at the bottom line of the entities balance sheet, but also at what kind of things they are spending money on. And in terms of providing a sign language interpreter, the lawyer cannot pass that on to the client in terms of the cost.

The day care center near my home says it is just not equipped to handle children with disabilities. Can they just refuse to accept my child who has a disability? Day care centers are not allowed legally to refuse to accept children with disabilities because of their disabilities unless they can show it would be an undue burden considering all of the financial resources available to the day care center including tax incentives. Or if having the child with the disability would fundamentally alter the nature of the service of the day care center.

Do stores have to have Braille price tags and do restaurants have to have Braille menus? No. They don’t have to do that, as long as their sales personnel and wait staff provide the information verbally if requested.

Do businesses have to let service animals come in even if it is a restaurant or a hospital or someplace like that? Generally yes. A place of public accommodation must modify its policies to allow a service animal to accompany an individual with a disability, unless it would result in a fundamental alteration or would jeopardize the safe operation of the public accommodation. In a restaurant, a service animal must be allowed to accompany the person with a disability in all areas that are open to other patrons. In a hospital, the same thing is true except there may be certain areas of the hospital where having a service animal could jeopardize safety, such as in a sterile environment of an operating room.

Are all animals that are owned by people with disabilities classified as service animals? No. Service animals are individually trained to do work or perform tasks for the benefit of an individual with a disability. Some of the more typical tasks are guiding people who have impaired vision, alerting individuals who have impaired hearing to certain sounds, providing minimal protection or rescue work, pulling a wheel chair, or retrieving dropped items. Therapy animals are not the same as service animals because they typically don’t perform tasks that benefit the person with the disability. There is no doubt that therapy animals sometimes called companion animals or emotional support animals, are therapeutic and helpful to their owners but they just do not meet the ADA definition of service animals and are not protected by the ADA.

So I hope you’ve learned something from listening to these frequently asked questions, and if there are particular questions that you would like to see answered here on the disability law lowdown, let me know, and we’ll have this feature every now and then to cover some of those questions. And we will be covering some frequently asked questions about other disability related laws in future podcasts. Thanks again for tuning in.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA centers that provide training, technical assistance, and materials on the ADA and other disability related laws. Funding for the centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the disability lowdown at our website at or on iTunes.