South Carolina Vocational Rehabilitation Department

Helping people with disabilities to become and stay employed.
Helping businesses find and keep talent.

Employing Ability


Overview of the Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in State and local government services, public accommodations, transportation and telecommunications. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion.

The ADA guarantees equal opportunity. Barriers to employment, transportation, public accommodations, public services, and telecommunications have imposed staggering economic and social costs on American society and have undermined our well-intentioned efforts to educate, rehabilitate, and employ individuals with disabilities. Breaking down these barriers, the ADA enables society to benefit from the skills and talents of individuals with disabilities, allows us all to gain from their increased purchasing power and ability to use it, and leads to fuller, more productive lives for all Americans.

Title I
Employment

Title I of the ADA took effect July 26, 1992, and prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. An individual with a disability is a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities
  • Has a record of such an impairment
  • Is regarded as having such impairment

A qualified individual with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

  • Making existing facilities used by employees readily accessible to and usable by persons with disabilities
  • Job restructuring, modifying work schedules, reassignment to a vacant position
  • Acquiring or modifying equipment or devices adjusting or modifying examinations training materials, or policies and providing qualified readers or interpreters.

Employers are required to make an accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources and the nature and structure of its operation.

Employers are not required to lower quality or production standards to make an accommodation, nor are employers obligated to provide items such as glasses or hearing aids.

Medical Exams and Inquiries

Employers may not ask job applicants about the existence, nature or severity of a disability. You may ask applicants about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination or inquiry, but only if the examination or inquiry is required for all employees entering in the job. Medical examinations or inquiries of employees must be job related and consistent with the employer’s business needs.

Drug and Alcohol Abuse

Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

Title II
State and Local Government Services and Programs

Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities. It applies to all State and local governments, their departments and agencies, and any other instrumentalities or special purpose districts of State or local government. It clarifies the requirements of Section 504 of the Rehabilitation Act of 1973 for public transportation systems that receive Federal financial assistance, and extends coverage to all public entities that provide public transportation, whether or not they receive Federal financial assistance. It establishes detailed standards for the operation of public transit systems, including commuter and intercity rail (AMTRAK).

State and local government must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless it can establish that the requirements are necessary for the provision of the service, program or activity. The State or local government may, however, adopt legitimate safety requirements necessary for safe operation if they are based on real risks, not on stereotypes or generalizations about individuals with disabilities. Finally, public entities must reasonably modify policies, practices or procedures to avoid discrimination. If a public entity can demonstrate that a particular modification would fundamentally alter the nature of its service, program, or activity, it is not required to make that modification.

Title II prohibits all public entities, regardless of the size of their work force, from discriminating in employment against qualified individuals with disabilities.

Public entities must ensure that individuals with disabilities are not excluded from services, programs and activities because existing buildings are inaccessible. State or local government programs, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. This standard, known as “program accessibility” applies to facilities of a public entity that existed on January 26, 1992. Public entities do not necessarily have to make each of their existing facilities accessible. They may provide program accessibility by a number of methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate accessible sites.

The ADA requires that all new buildings constructed by a State or local government be accessible. In addition, when a State or local government undertakes alterations to a building, it must make the altered portions accessible.

Private individuals may bring lawsuits to enforce their rights under Title II and may receive the same remedies as those provided under Section 504 of the Rehabilitation Act of 1973, including reasonable attorney’s fees. Individuals may file complaints with eight designated Federal agencies, including the Department of Justice and the Department of Transportation.

Title III
Public Accommodations

A public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. Private clubs and religious organizations are exempt from the ADA’s Title III requirements for public accommodations.

If a criterion screens out or tends to screen out individuals with disabilities, it may only be used if necessary for the provision of the services. For instance, it would be a violation for a retail store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to exclude all individuals with cerebral palsy. More subtle forms of discrimination are also prohibited. For example, requiring presentation of a driver’s license as the sole acceptable means of identification for purposes of paying by check could constitute discrimination against individuals with vision impairments. This would be true if such individuals are ineligible to receive licenses and the use of an alternative means of identification is feasible.

The ADA expressly provides that a public accommodation may exclude an individual, if that individual poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation’s policies or procedures, or by the provision of auxiliary aids. A public accommodation will be permitted to establish objective safety criteria for the operation of its business; however, any safety standard must be based on objective requirements rather than stereotypes or generalizations about the ability of persons with disabilities to participate in an activity.

The ADA does not require modifications that would fundamentally alter the nature of the services provided by the public accommodation. For example, it would not be discriminatory for a physician specialist who treats only burn patients to refer a deaf individual to another physician for treatment of a broken limb or respiratory ailment.

Appropriate auxiliary aids and services may include services and devices such as qualified interpreters, assistive listening devices, notetakers, and written materials for individuals with hearing impairments, and qualified readers, taped texts, and brailed or large print materials for individuals with vision impairments.

The ADA does not require the provision of any auxiliary aid that would result in an undue burden or in a fundamental alteration in the nature of the goods or services provided by a public accommodation. However, the public accommodation is not relieved from the duty to furnish an alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue burden. Determination is on a case-by-case basis.

Barrier removal should be accomplished when it is “readily achievable”. This means easily accomplishable and able to be carried out without much difficulty or expense. Examples include the simple ramping of a few steps, the installation of grab bars where routine reinforcement of the wall is required, the lowering of telephones, and similar modest adjustments. Restaurants may need to rearrange tables and department store may need to adjust their layout of racks and shelves in order to permit access to wheelchair users. Alternatives may include such measures as in-store assistance for removing articles from inaccessible shelves, home delivery of groceries, or coming to the door to receive or return dry cleaning.

The ADA places the legal obligation to remove barriers or provide auxiliary aids and services on both the landlord and the tenant.

The ADA requires that all new construction of places of public accommodation, as well as of commercial facilities be accessible. The cost of incorporating accessibility features in new construction is less than one percent of construction costs. Elevators generally are not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal.

All alterations that could affect the usability of a facility must be made in an accessible manner to the maximum extent feasible. For example, if during renovations a doorway is being relocated, the new doorway must be wide enough to meet the new construction standard for accessibility. When alterations are made to a primary function area, such as the lobby of a bank or the dining area of a cafeteria, an accessible path of travel to the altered area must also be provided. The bathrooms, telephones, and drinking fountains serving that area must also be made accessible. These additional accessibility alterations are only required to the extent that the added accessibility costs do not exceed 20% of the cost of the original alteration.

Private individuals may bring lawsuits in which they can obtain court orders to stop discrimination. Individuals may also file complaints with the Attorney General, who is authorized to bring lawsuits in cases of general public importance or where a pattern or practice of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.

Title IV
Telecommunications

Telephone companies must provide telecommunications relay services throughout their service areas. This is accomplished through the use of telecommunication devices for the deaf or text telephones (TDD or TTY). Regulations have been issued by the Federal Communications Commission and require the following:

  • Relay services are to operate 24 hours a day, 7 days a week. Dial 711 for this service.
  • Operators must maintain the confidentiality of messages.
  • Users are to pay rates no greater than those paid for functionally equivalent voice communication services.
  • Televised public service announcements produced or funded in whole or in part with federal money must include closed captioning.
  • Relay operators are prohibited from refusing calls or limiting the length of calls.
  • Relay operators may not intentionally alter a relayed conversation.

Title V
Miscellaneous

Except as otherwise provided by the ADA, nothing shall be construed to apply a lesser standard than the standards applied under Title V of the Rehab Act or regulations issued by federal agencies.

ADA shall not be construed as to invalidate or limit the remedies, rights and procedures of any federal or state laws that provide greater or equal protection for the rights of individuals with disabilities

A state shall not be immune under the 11th amendment from an action in federal or state court for a violation of the Act.

No person shall discriminate against a person who has opposed any act or practice made unlawful by the Act or because a person made a charge, testified, assisted, or participated in an investigation, proceeding or hearing. Also, it shall be unlawful to coerce, intimidate, threaten or interfere with a person in the exercise or enjoyment granted by the Act.

The ADA does not cover the executive branch of the Federal government because it is covered by Title V of the Rehabilitation Act of 1973. The ADA, however, does cover Congress and other entities in the legislative branch of the Federal government.

The ADA does not cover strictly residential private apartments and homes.

Discrimination by air carriers in areas other than employment is not covered by the ADA but rather by the Air Carrier Access Act (49 U.S.C. 1374 (c).

  • The Department of Transportation has issued regulations mandating accessible public transit vehicles and facilities. The regulations include requirements that all new fixed-route, public transit buses be accessible and that supplementary paratransit services be provided for those individuals with disabilities who cannot use fixed-route bus service.

Enforcement

The US Equal Employment Opportunity Commission issued regulations to enforce the provisions of Title I of the ADA. Employers with 15 or more employees are covered. Charges may be filed at any field office of EEOC. If a person has been discriminated against on the basis of disability, he or she is entitled to a remedy that would place them in the position they would have been in if the discrimination had never occurred. They may be entitled to hiring, promotion, reinstatement, back pay or other remuneration, or reasonable accommodation including reassignment. They also may be entitled to damages to compensate for future pecuniary losses, mental anguish, and inconvenience. Punitive damages may be available if an employer acted with malice or reckless indifference. They also may be entitled to attorney’s fees.

For more information, contact

EEOC
202-663-4395 (voice)
202-663-4399 (TDD)
800-669-3362 (voice, toll free)
800-800-3302 (TDD, toll free)