The employment provisions of the ADA² apply to private employers,³ state and local governments, employment agencies, labor organizations and joint labor-management committees. A covered entity is prohibited from discriminating against a "qualified individual with a disability" in all employment practices, including job application procedures, hiring, discharge, advancement, compensation, job training and other terms, conditions and privileges of employment. A "qualified individual with a disability" is defined as one who can perform the essential functions of a job with or without reasonable accommodation. If an applicant or employee is qualified to perform essential job functions except for functions that cannot be performed because of related limitations caused by a disability, the employer must consider whether the individual could perform these functions with a "reasonable accommodation". An employer's written job description, if available, is considered primary evidence of the essential functions of a job.

As defined by the Act, "reasonable accommodation" includes modifying or adjusting the workplace for ready accessibility and usability by individuals with disabilities, restructuring a job, modifying work schedules and equipment, reassignments to vacant positions, acquisition or modification of equipment or devices, providing readers or interpreters, and adjustments or modifications to examinations, training materials or policies and other similar accommodations. An employer is not required to make an accommodation for an individual with a disability if it would impose an "undue hardship" on the operation of the employer's business. If an accommodation requires significant difficulty or expense when considered in light of such factors as the nature and cost of the accommodation in relation to the size, resources,, nature, and structure of the employer's operation, it will be considered to impose an undue hardship on the employer.

Although an employer may not conduct medical exams or make inquiries of a job applicant as to whether the applicant has a disability or the nature of such disability, the employer may ask if the applicant can perform certain job-related functions. After an offer of employment has been made, the employer may condition the offer on the results of a required medical examination provided that all entering employees are subjected to such an exam regardless of disability. Any information obtained during such medical examination must be kept confidential and maintained in separate medical files.

Certain defenses are provided for employers under Title I of the Act. For example, it is not discriminatory for an employer to administer tests or selection criteria which are job-related and consistent with business necessity even though these devices may screen out a disabled individual. The law further provides that an individual who poses a direct threat to the health or safety of others is not qualified for the job. Title I of the Act requires that, within six months of enactment, the Secretary of Health and Human Services publish a list of infectious and communicable diseases that can be transmitted through the handling of food. Accordingly, employers may transfer individuals infected with such diseases from food handling jobs if the danger to public health and safety cannot be eliminated by reasonable accommodations.

Current illegal drug users and alcoholics who cannot safely perform their jobs are not considered to be "qualified individuals with a disability" and are, therefore, not protected by the ADA. It must be noted however that a person who currently uses alcohol, unlike an illegal drug user, is a person with a disability and may be entitled to accommodation if he or she is qualified to perform the essential functions of the job. Former drug users who have been rehabilitated, who are participating in a supervised rehabilitation program, and who are not current drug users but who are erroneously regarded as engaging in the use of illegal drugs, are protected by the Act.

Enforcement responsibility of the employment provisions of the ADA is placed in the EEOC. which proposed detailed regulations governing employer actions in February, 1991. By agreement with the EEOC the Labor Department's Office of Federal Contract Compliance will also investigate and process discrimination complaints, although litigation will be referred to the EEOC. Title I of the ADA incorporates the powers, remedies and procedures for enforcement as set forth in Title VII of the Civil Rights Act of 1964. The recent passage of the Civil Rights Act of 1991 expanded the remedies that may be available to victims of intentional disability bias. A complaining party may now recover punitive damages if it is demonstrated that the employer engaged in a discriminatory practice with malice or with reckless indifference to the federally protected rights of an aggrieved individual. Compensatory damages which may be claimed for intentional disability bias, can be awarded to compensate an aggrieved party for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary losses. The amount of compensatory and punitive damages awarded is limited to $50,000.00 for employers of 100 or fewer employers; $100,000.00 for employers with more than 100 and fewer than 201 workers; $200,000.00 for employers with more than 200 and fewer than 501 employees; and $300,000.00 for employers of more than 500 workers. A complaining party who seeks compensatory or punitive damages may demand a jury trial. Backpay, interest on backpay and front pay are not included in compensatory damages. Additionally, attorney's fees are available to the prevailing party. Damages are not available in cases where a covered entity makes a good faith effort to identify and make a reasonable accommodation for a person with a disability that does not cause an undue hardship on the operation of its business.

B. TITLE II: PUBLIC SERVICES

The ADA requires equal or equivalent access be provided to disabled individuals in employment, public accommodations, transportation, government services and communications as that provided those who are not disabled. It does not require that an employer or public facility treat all disabled individuals alike, nor does it necessarily require that disabled persons be treated in an identical manner as able-bodied persons. For example, the employment provisions of the ADA requires that an "individualized inquiry" be performed to access the ability of a particular person to perform a given job. The focus of this inquiry is on the person's skills as they relate to the "essential functions"¹⁷ of the position and it must be determined what this particular individual can perform those essential functions with or without "reasonable accommodation."¹⁸ The inclusion of this phrase is useful in emphasizing that a disabled person should not be "disqualified" because they may have difficulty performing tasks which are only marginally related to the job description.

C. INTENT NOT AN ISSUE

Discrimination against disabled persons is pervasive and, at the same time, most of society is unaware that it goes on.¹⁹ Furthermore, disabled persons are almost invariably underprivileged, disadvantaged, poor, less well-educated, have less social life and amenities and self-satisfaction. The average person does not "intend" this to be the fate of disabled persons, but fails to recognize the pattern of discriminatory conduct and practices which pervade society.²⁰

The ADA lists a variety prohibited employer conduct. For example, an employer has the responsibility to avoid contractual arrangements which tend to subject his employees to discrimination, is prohibited from discriminating against qualified persons known to be associated with or related to a disabled person,²¹ is prevented from making a hiring decision based on the belief that an individual will have a poor attendance record due to his relationship with a disabled person, is obligated to provide reasonable accommodation, and finally, is prohibited from utilizing test and screening requirements which have a discriminatory effect and are unrelated to the position in question.

Under the ADA, intent to discriminate is simply not an issue (except in second step analysis of good faith efforts to accommodate) ; rather, the focus is on the discriminatory effect or disparate impact of a particular action. This approach was endorsed by the Supreme Court in its decision in Alexander v. Choate,²² a case brought under the Rehabilitation Act of 1973. The Supreme Court in Choate reviewed a state's reduction of the number of inpatient hospital days covered by Medicaid. A challenge was brought on the grounds that handicapped persons on the average required a greater number of inpatient hospital days than those without handicaps. The Supreme Court rejected the state's argument that only intentional discrimination was actionable because discrimination is "most often the product, not of invidious animus, but rather of thoughtlessness and indifference -- of benign neglect"²³. The Court further noted that the purpose of the Rehabilitation Act would be thwarted if it were not used to rectify the harms resulting from action that discriminated by effect as well as by design."²⁴ With the recent enactment of the Civil Rights Act of 1991, intent to discriminate has become an issue in the limited context of remedies. In cases of intentional discrimination, a plaintiff can recover compensatory and punitive damages in addition to the traditional "make-whole" remedies of hiring, reinstatement, promotion, back pay, front pay or reasonable accommodation. These additional remedies are also available in cases where an employer fails to make a good faith effort to provide reasonable accommodation. In addition, in cases where compensation and punitive damages are claimed, the plaintiff can demand a jury trial.

III. RELATION TO STATE AND FEDERAL LAWS

The ADA has been heralded as the most important piece of legislation for the protection of the rights of disabled persons that has ever been passed. However, the ADA is not the only law that protects the rights of disabled persons; both the state and federal governments have laws relating to discrimination on the basis of disability. The ADA has not replaced these other laws; indeed, in many instances one or more of these other laws will apply to a given situation in addition to the ADA. It is, therefore, crucial to examine how the ADA will interact with and affect those prior disabilities laws.

A. STATE LAW AGAINST DISCRIMINATION

The Pennsylvania Hurnan Relations Act ("PHRA" )²⁵ is strikingly similar to the ADA in many respects. Both Acts require covered employers to reasonably accommodate individuals with disabilities unless to do so would pose an undue hardship, and both Acts require that places of public accommodation be made available to disabled persons on the same or substantially equivalent basis as they are available to able-bodied persons.²⁶ In addition, both Acts have essentially the same definition of the term "disability"²⁷, and both Acts have similar definitions of the term "public accommodation". Despite these substantial similarities, however, there are some important differences between the two Acts.

For instance, the most obvious and important distinction between the two laws pertains to the coverage of each Act. As previously mentioned, the employment provisions of the ADA apply to employers with fifteen or more employees; the PHRA, however, covers employers with four or more employees.²⁸ Thus, while both Acts will overlap in coverage for employers with fifteen or more employees, only the PHRA will apply to employers with four to fourteen employees.

The terminology used in the Acts also differs. For instance, the ADA prohibits a covered employer from discriminating against a "qualified individual with a disability", while the PHRA makes it unlawful to discriminate against an individual with a "non-job related handicap or disability" if that individual is the "best able and most competent to perform the services required." The ADA defines a qualified individual with a disability as "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." Under the PHRA, a non-job related handicap or disability means "any handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person applies for, is engaged in or has been engaged in." With the passage of the ADA, the practical distinction between the different language used by these two Acts is, for all intents and purposes, nonexistent, especially with respect to discriminatory practices in light of the PHRA's explicit mandate that its provision are to be "construed consistently with other federal and state laws and regulations. It is therefore expected that, in the future, the PHRA will be construed in a manner consistent with the ADA, although that construction may be the subject of litigation asserting that the different statutory language must signify some differences.

In fact, case law under the PHRA reveals that its provisions have already been interpreted in a manner consistent with the ADA. Thus, for example, in Cain v. Hvatt,²⁹ it was held that the PHRA required an employer to permit an employee who was hospitalized for the first time with AIDS to use his sick and vacation days and, if necessary, to place him on medical leave of absence, until he was able to return to work or until the situation created an undue hardship for the employer. The court in Cain ruled that the employer could not terminate the employee without first affording him the opportunity to return to work and attempting to satisfy his demands. Not only did the Cain court interpret the PHRA as extending protection to individuals with AIDS, a disability that is covered by the ADA, but the court's interpretation of the term reasonable accommodation is consistent with the EEOC's regulations under the ADA, which state that reasonable accommodation "could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment."³⁰

The EEOC's regulations under the ADA state that the Act does not preempt any law that affords greater or equal protection to disabled persons. What this means is that to the extent the PHRA is construed as providing a lesser standard than the ADA, compliance with the PHRA will not be a defense for failing to meet the higher ADA standard. Similarly, to the extent the PHRA imposes a higher standard than the ADA, meeting the ADA's lesser standards will not be a defense for failing to meet the PHRA's standards.

If a person believes he or she has been discriminated against in violation of the PHRA, a complaint must be filed with the Human Relations Commission within 180 days of the alleged act of discrimination. The Human Relations Commission is a deferral agency of the EEOC; therefore complaints alleging violations of the ADA in Pennsylvania must be filed with the Human Relations Commission, which will cross-file the complaint with the EEOC. The EEOC will defer its jurisdiction to the state agency for a period of sixty days following the filing of the complaint with the state agency.

B. BARRIER-FREE DESIGN CODE

Prior to the enactment of the ADA, the federal government's accessibility laws were limited only to those programs or facilities that were federally funded. For instance, the Rehabilitation Act of 1973 required that all federally funded facilities and programs be accessible to and usable by handicapped persons.³¹ The ADA, however, applies to virtually every private entity, irrespective of size, that is open for business to or in contact with the public. As such, it goes well beyond the federally funded limits of the Rehabilitation Act. In certain instances, however, the provisions of the ADA and the Rehabilitation Act may overlap, and it is therefore important to examine how these laws will interact with each other.

The ADA provides that the standards of the Rehabilitation Act of 1973 apply for purposes of the ADA unless the ADA has explicitly adopted a different standard. For example, the Rehabilitation Act requires that federally assisted programs be accessible to and usable by handicapped persons even if major structural alterations are necessary to meet the accessibility requirements. The ADA, on the other hand, requires that existing facilities only make "readily achievable" alterations, that is modifications that are easily accomplished without undue difficulty or expense. Thus, an entity covered only by the ADA must only make readily achievable modifications, which may mean that structural modifications are not required. On the other hand, an entity covered by both the ADA and the Rehabilitation Act would be required to make its program accessible, even if it were required to make non-readily achievable structural modifications to meet those accessibility standards.

The ADA does not require that state and local building codes and ordinances comply with its minimum guidelines; however, entities subject to coverage under the Act may be subject to liability for failure to comply with those guidelines, notwithstanding the provisions of the state and local laws. The ADA does authorize state and local governments to apply to the Attorney General for certification that a state law, local building code or similar ordinance meets or exceeds the ADA's minimum accessibility requirements. State or local laws that provide greater or equal protection than that afforded under the ADA remain in effect and are enforceable through the procedures set forth in those laws.

As previously noted, Pennsylvania's Human Relations Act requires that places of public accommodation be made accessible to and usable by disabled persons. Like the ADA, the PHRA broadly defines the term "public accommodations" to include the same types of establishments as those covered by the ADA. The regulations promulgated pursuant to the PHRA provide that a covered entity shall be deemed to have complied with the requirements of this Act if it has met certain existing federal standards. Those standards, however, may in many respects, be lesser than the new supplemental standards that are to be promulgated by the Architectural and Transportation Barriers Compliance Board ("ATBCBII) , an entity established by the Rehabilitation Act. Thus, to the extent the ATBCB supplemental guidelines issued under the ADA exceed the standards relied on by the PHRA, the ADA standards will govern. If, however, the state guidelines impose stricter standards, a covered entity in Pennsylvania must comply with those standards, or risk violating Pennsylvania law.

C. FEDERAL REHABILITATION ACT

The Rehabilitation Act of 1973³² served as the model for the substantive provisions of the ADA. While the ADA extended its coverage beyond that provided by the Rehabilitation Act, it retained many of the key concepts and terminology of that Act. In fact, the ADA specifically provides that its standards are not intended to be lesser than the standards applied under the Rehabilitation Act, unless expressly stated to the contrary. Understanding the Rehabilitation Act is therefore useful in analyzing the ADA.

The Rehabilitation Act of 1973 contains three key provisions designed to eliminate discrimination against handicapped individuals.³³ Section 504 prohibits discrimination against otherwise qualified handicapped individuals in programs and activities receiving federal financial assistance, as well as in the executive branch of the federal government. The discrimination prohibited by Section 504 pertains to all services and programs offered by federal fund recipients, including employment, housing transportation and social service benefits. The enforcement of this section is designed to parallel Title VI of the Civil Rights Act of 1964, and is enforced by the individual federal funding agencies. This section requires that otherwise qualified handicapped individuals be reasonably accommodated, but such accommodation is to be ascertained by taking into account the needs of the federal fund recipients to maintain the integrity of their programs.

Section 503 deals solely with employment discrimination by businesses that contract with the federal government or that subcontract with federal contractors. In contrast to Section 504, Section 503 imposes an affirmative duty upon many contractors to accommodate the limitations of their handicapped employees and to take steps to train and recruit handicapped persons. Primary enforcement of this section is done by the Department of Labor, Office of Federal Contract Compliance Programs ("OFCCP"). Section 501 of the Act proscribes discrimination by the federal government in the hiring, promotion, and other employment of handicapped individuals. Enforcement is left to the EEOC. Like Section 503, Section 501 of the Act proscribes imposes an obligation upon the federal government to take affirmative steps to recruit and accommodate handicapped employees.

With the enactment of the ADA, it is expected that some entities will now be covered by both the ADA and the Rehabilitation Act.³⁴ In order to ensure consistent standards and avoid duplication of efforts, the EEOC and the OFCCP have issued joint regulations which will govern situations in which an entity is covered by both the ADA and Section 503 of the Rehabilitation Act. Under these joint regulations, the OFCCP will serve as the EEOC's "agent" in cases of disability discrimination by federal contractors and subcontractors. The OFCCP will investigate and process complaints filed under Section 503 of the Rehabilitation Act, but these complaints will also be treated as charges filed under the ADA. The OFCCP will refer the complaints to the EEOC if they raise controversial issues or issues for which the EEOC has not issued definitive guidance. Complaints will also be referred to the EEOC for litigation if a violation is found, if conciliation attempts fail or if the OFFCP decides not to pursue administrative enforcement. In their conciliation efforts, both agencies will attempt to obtain full relief for complainants, which includes back pay, front pay, reinstatement and, in cases of intentional discrimination, compensatory and punitive damages.

D. ENFORCEMENT AND PENALTIES FOR NON-COMPLIANCE

Title I of the ADA, which contains the employment provisions, is to be enforced by the EEOC and, in certain cases, the OFCCP using the same procedures that are now applicable to cases of race, sex, religious and national origin discrimination under the Civil Rights Act of 1964. Complaints must be filed within 180 days of the alleged act of discrimination, except that in states such as Pennsylvania which has its own disability discrimination, the charges must be filed with the EEOC within 300 days of the alleged discriminatory act or within 30 days after notice that the state agency has terminated its proceedings, whichever is earlier. As previously noted, the EEOC will defer its jurisdiction to the state agency for a period of sixty days following the commencement of proceedings by the state agency. Further, complaints of discrimination filed with the EEOC will be cross-filed with the PHRC. After investigation in cases where it is believed that discrimination occurred, the agency will file suit or issue a "right to sue" letter if conciliation fails. Available remedies for violation of Title I of the ADA include the traditional "make whole" remedies such as reinstatement back pay, front pay, and pecuniary losses, as well as compensatory and punitive damages in cases of intentional discrimination, except that punitive damages may not be available from public employers. There are limits on the amount of compensatory and punitive damages than can be recovered, however. These limits are $50,000 for employers with 100 or less employees; $100,000 for employers with more than 100 but less than 201 employees; $200,000 for employers with more than 200 but less than 501 employees; and $300,00 for employers with more than 500 employees. In addition, attorney's fees are recoverable by the prevailing party other than the United States. Jury trials are available in cases in which compensatory and punitive damages are sought.

Enforcement of Title II of the ADA, relating to public entities, is to mirror the enforcement provisions of Section 504 of the Rehabilitation Act. Thus, complaints may be filed with the federal agency that provides funding to the public entity, or with the Department of Justice within 180 days of the alleged act of discrimination. Suit may be filed by the Department of Justice or by the individual complainant; the complainant need not exhaust administrative procedures before filing suit.

The public accommodations provisions of the ADA, Title III, are to be enforced by the Department of Justice. An individual who believes he or she is "about to bell subjected to discrimination may institute a private suit without first filing a complaint with the Department of Justice. The individual must have "reasonable grounds" to believe a violation is about to occur. Available remedies include injunctive relief such as an order to alter facilities, to make them readily accessible to and usable by disabled persons, an order requiring the provision of an auxiliary aid or service, modification of a policy or provisions of alternate methods. In suits initiated by the Attorney General, courts may award injunctive relief and monetary damages, except that monetary damages shall not include punitive damages. In addition, civil penalties may be assessed to vindicate the public interest; such penalties shall not exceed $50,000 for a first violation or $100,000 for subsequent violations. Attorney's fees are recoverable by the prevailing party, except the United States.

Title I of the ADA prohibits discrimination against a qualified individual with a disability because of that disability in any area within the spectrum of employment, including the job . application process, hiring, promotion, demotion, transfer, discharge, layoff, compensation, benefits, and all other terms and conditions of employment. The ADA also prohibits discrimination against a qualified individual because of his or her association or relationship to a disabled individual. Further, the Act makes it unlawful for covered employers not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee.³⁵

The ADA, to a large extent, is a compilation of the substantive provisions of the Rehabilitation Act, such as the definition of disability and discrimination, and the procedural requirements, such as employer coverage and available remedies outlined in Title VII of the Civil Rights Act of 1964. As a result of the aggressive involvement of disability rights advocacy groups in the legislative drafting process, the resulting law contains a number of new, or clarified, concepts for employers to grapple with, including disability accommodation based on individual need as opposed to a disability, the prohibition of soliciting pre-employment medical information, (except for compliance with Section 503 of the Rehabilitation Act, and the confidentiality of all employee medical information.

A. WHO IS CONSIDERED AN "EMPLOYER"?

"Employers" are regulated by the Act, but who is an Employer? An employer in private industry is a business engaged in an industry affecting commerce which has 15 or more employees working for each day of 20 or more calendar weeks in the current or preceding calendar year, except that for the first two years of the ADA an employer is defined as encompassing businesses with 25 or more employees. The federal government, corporations wholly owned by the Federal Government, indian tribes, and bona fide private membership clubs who are exempt from taxation under 26 U.S.C. §501(c) are not employers, and thus not subject to the restrictions of the ADA. State and local governments are employees, as are agencies, departments and programs of state and local governments.

B. WHO IS A QUALIFIED DISABLED PERSON?

As previously noted, a disabled person is one who (1) has a physical or mental impairment that substantially limits one or more major life activities, or (2) has a record of such an impairment, or (3) is regarded as having such an impairment. This definition of disabled is incredibly broad, and encompasses a wide range of conditions. But, in order to be covered by the ADA, the individual with a disability must be qualified. This means that the individual meets the requisite skill, experience, education and other job-related requirements of the job, and can perform the essential functions of the job with or without reasonable accommodation. The determination of who is a qualified individual with a disability requires a two-step process which mirrors the selection process many employers use in recruiting. Specifically, when a position opening occurs, job requirements such as skill, experience and education are often pre-determined, and recruitment efforts are undertaken. As resumes or applications are submitted for the opening, they are screened to ensure that viable candidates appearing to meet the requirements receive further consideration. Assuming a disabled individual is part of the "further consideration" group of applicants, this individual would be evaluated and interviewed along with other non-disabled candidates to determine the degree to which each of them is able to perform the essential functions of the open position. It should be noted, however, that this process does not include any assessment of the need for a reasonable accommodation. The reasonable accommodation consideration is to be made at the time of the employment decision, and must be based on the individuals capabilities at the time rather than on speculation that the individual may not be able to perform the job at some future date. Consideration may also not be given to whether hiring the individual will result in an increase in health insurance or worker's compensation costs.

In determining the essential functions of a position, it is necessary to look at those tasks or functions that the individual in the job must be able to perform with or without accommodation. Whether a function is essential should be based on a number of factors, including, but not limited to:

1. why the job exists (only to perform that function?);
2. how many employees are available among which to distribute the job function; and/or
3. how specialized the function is.

The evaluation of essential functions by the EEOC during an investigation of an alleged violation of the Act should not be undertaken in a way that second guesses an employer's business judgment regarding production standards that may have been set, providing they are legitimate and were not developed as a reaction to the Act. It should be anticipated, however, that EEOC will look closely at the determination of other essential functions based at least on the available objective criteria and the previous history of incumbents in the position in question.

C. REASONABLE ACCOMMODATION

The ADA prohibits discrimination against qualified individuals with a disability. The definition of discrimination includes "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business" of the covered entity.

The EEOC regulations implementing the employment provisions of the ADA identify three categories of reasonable accommodation:

1. accommodations that are revised to ensure equal opportunity in the application process;
2. accommodations that enable the employer's employees with disabilities to perform the essential functions of the position held or desired; and
3. accommodations that enable the employer's employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by other employees.³⁶

Another area of potential confusion that may arise in the context of reasonable accommodation and undue hardship occurs when a union represents the employees. Under the National Labor Relations Act and concurrent state labor laws, an employer may not unilaterally change an employee's wages, hours, or terms or conditions of employment without first advising the bargaining representative and providing an opportunity to bargain upon request. Issues of seniority, realignment of job duties among various employees, changes in employee parking, and countless other potential issues all have an effect on groups of employees beyond the disabled and are subject to notice and bargaining with employees' collective bargaining representative in certain circumstances. In some circumstances where there is a union contract in force, an employer may not be able to make a modification at all without the agreement of the union, and such agreements may or may not be easy to acquire. Unilateral changes may be a violation of a collective bargaining agreement and/or Section 8 (a) (5) of the National Labor Relations Act, depending on the circumstances. In enforcing the ADA, unionization and the terms of a collective bargaining agreement are to be considered as a factor in the evaluation of accommodations, although the Committee Reports suggest that collective bargaining agreements in the future include a provision that the employer may take "actions necessary to comply with the Act." Whether this suggestion is realistic is open to debate.

D. WHAT EMPLOYMENT TESTS ARE PERMITTED?

To ensure compliance with the provisions of Title I, employers are not permitted to use any qualification standard, test, or other selection criteria which, even inadvertently, screens out, or tends to screen out, an individual, or class of individuals, with a disability unless the employer can clearly demonstrate that it is directly related to the position in question and that it is consistent with business necessity. The use of selection criteria that are related to the essential functions of a job may be consistent with business necessity, but still cannot be used to screen out a disabled individual if the criteria could be met with a reasonable accommodation. It is worthy to note that the regulations specifically state that the Uniform Guidelines on Employee Selection Procedures³⁷ do not apply to the Rehabilitation Act and, therefore, are similarly inapplicable to the ADA. Title I of the ADA requires that when tests are administered to an applicant or employee with a disability, care is to be taken to ensure that the test results accurately reflect the skills, aptitude, or other factors it is purported to measure, rather than the impaired sensory, manual, or speaking skills of the employee, unless those skills are the ones being measured. This requirement means that employers must have alternate means of testing individuals with sensory, manual or speaking disabilities that do not use the impaired skill. This alternate testing method need only be available to an applicant or employee if the employer knows in advance that a reasonable accommodation will be required. For example, if an employer becomes aware that an applicant has dyslexia and is unable to read quickly, the ADA requires that the employer accommodate the applicant, perhaps, by having the test orally administered. It is the responsibility of the applicant to notify the employer of the need for reasonable accommodation. In this instance, it is permissible for the employer to request documentation of the need for accommodation. Other possible testing accommodations include: tests in Braille or large-print format, additional time to complete the test, use of a reader or sign interpreter, and testing the skill in another format, such as through an interview or a licensing process. The employer must also ensure that the test site is accessible to individuals with disabilities.

E. WHAT MEDICAL SCREENING IS PERMITTED?

Until the passage of the Americans with Disabilities Act, employers covered by Section 503 of the Rehabilitation Act were permitted to conduct medical examinations at any time during the application process, as long as the results of the examination were used "only in accordance with the requirements of [the] section." Employers covered by Section 504 however were required to follow a specific process in administering medical examinations. The ADA now requires all covered employers to follow essentially the same process previously used only for compliance with Section 504. Specifically, this will now require a two-step process:

1. In the interviewing stage, an employer may not ask specific questions relating to an applicant's disability or its severity. Questions relating to the ability of the applicant to perform the job related functions are permitted; and
2. After a conditional offer of employment has been made, the employer may require a medical examination and may request detailed medical information from the applicant.

These steps clearly indicate that it will be illegal for employers to conduct pre-employment physical examinations of applicants or to ask any disability-related questions during a selection process. The only exception to this relates to the affirmative action requirement in Section 503 of the Rehabilitation Act that disabled individuals be invited to "indicate whether and to what extent they are handicapped."

1. Pre-Employment Inquiries

Employers may ask during the course of an interview any question directly related to the ability of the applicant to perform job-related functions; and may also ask how, with or without reasonable accommodation, the applicant will be able to perform those functions. The applicant may also be asked to demonstrate his or her ability to perform those functions, and to explain how, with or without reasonable accommodation, the applicant will be able to perform those functions. However, questions and demonstrations of this nature must be asked of all applicants for the position, not just individuals with disabilities. If the applicant has a known disability, the employer may ask these questions, or ask for a demonstration without making the request of other non-disabled applicants. Should the applicant have a known disability which would not interfere with the performance of a job-related function, the employer may only ask questions or request demonstrations if all applicants for the job category are routinely requested to do so. If an employer requires a demonstration of an applicant with a disability, a reasonable accommodation to fulfill the function must be provided. The applicant may also be asked to explain how, with the accommodation, the function would be performed. If a disabled person is unable to perform a non-essential job function, then the employer must provide an accommodation.

It is clear that under no circumstances, after July 26, 1992, will pre-employment medical questionnaires be permitted, nor will employers be permitted to request information relating to how an individual became disabled, prognosis, or the amount of time off the individual may require for treatment. Employers, may, of course, make clear the attendance requirements for a position and inquire as to any applicant's ability to meet those requirements. Questions commonly appearing on application forms such as, "Do you have a disability for which you require accommodation?" or "Have you ever collected worker's compensation?", will no longer be permitted. An announcement or notice may be printed on the application form stating that any individual with a disability requiring reasonable accommodation for a required pre-employment test must notify the employer within a specified period of time prior to the administration of the test. A strict reading of both the legislative history and the implementing regulations indicates this will be the only permitted pre-employment inquiry.

Physical agility tests are not considered to be medical examinations under the ADA, and therefore, may be given at any time during the application or employment process. They must, however, be given to all similarly situated applicants or employees without regard to disability. Should this type of test screen out or tend to screen out individuals with disabilities., the employer will be required to show that the test is job-related, consistent with business necessity, and that performance cannot be achieved with reasonable accommodation.

2. Employment Entrance Examinations

Once an applicant has been offered a position, employers may require a physical examination before the person begins working and the employment offer may be contingent upon this examination, providing that all entering employees in the same job category are required to undergo the examinations. These medical examinations are not required to be job-related and consistent with business necessity. However, if an employer withdraws an offer of employment because the examination reveals that the employee does not satisfy certain employment criteria, the employer must prove:

1. the exclusionary criteria does not screen out (or tend to screen out) individuals or class of individuals with disabilities (or class of individuals); or
2. the exclusionary criteria is job-related, consistent with business necessity and no reasonable accommodation is possible.

State worker's compensation laws are not preempted by the ADA and therefore, when such laws require it, employers may submit information to worker's compensation offices or second injury funds without violating the confidentiality provision.

3. Examination of Employees

Once employed, an employer may require fitness for duty medical examinations or inquiries when there is a need to determine if:

1. an employee is still able to perform the essential job functions;
2. the inquiry or examination is necessary to meet the reasonable accommodation process;
3. federal safety regulations or laws establishing medical requirements for certain professions (e.g., pilots, etc.), OSHA regulations, or other similar statutes require employees . exposed to certain toxic and hazardous substances be medically monitored at specific intervals.

In addition, nothing in the Act precludes the employer from conducting voluntary medical examinations, including voluntary medical histories, as part of an employee health program. However, any information obtained as part of this process is covered by the confidentiality restrictions previously discussed.

Title III of the Americans with Disabilities Act is designed to ensure that individuals with disabilities are provided with the same access to societal opportunities as individuals without disabilities. The statute specifically states:

"No individual shall be discriminated against on the basis of disability for the full and equal enjoyment of 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."³⁸

Taken together with the employment provisions of Title I and the public services provisions of Title II, this section completes the circle of coverage in ensuring that all segments of society provide equal goods and services to individuals with disabilities. The effective date of this Title was January 26, 1992.

A. WHAT PLACES ARE COVERED BY THE ADA?

Title III applies to all private entities, regardless of size, who are engaged in commerce. Not covered by this Title are state and local governments, governmental departments or agencies, the National Railroad Passenger Corporation or any commuter authority, although these entities are covered by Title II of the ADA. Private clubs and religious organizations are exempt from coverage under this Title. Coverage has, therefore, been extended over that of the Rehabilitation Act to encompass all establishments that invite the participation of the public, not just those that receive federal funds.

Title III also requires that all new places of public accommodation and commercial facilities be designed and constructed to be readily accessible to and usable by disabled individuals. Further, examinations or courses related to licensing or certification for professional and trade purposes must be made accessible.

In order to understand the implications of the Act, some clarification of terms is necessary. Specifically:

"commercial facility": a non-residential location whose operations affect commerce, and which is not exempted under the Fair Housing Act (42 U.S.C. 3601-3631);

"public accommodation": a private entity that owns, leases (or leases to) or operates a place of public accommodation;

"place of public accommodation": a facility operated by a private entity whose operations affect commerce in at least one of twelve major categories:

Commercial facilities, which include factories, warehouses, office buildings, and portions of residential homes used for business must comply with the "new construction" and "alteration" portions of the Act, but are not covered by the general nondiscrimination provisions or the specific provision requiring barrier removal. However, as employers, commercial facilities would, in the vast majority of instances, be covered by the employment provisions of the ADA, which, by implication, require barrier removal.

B. REQUIREMENTS FOR PUBLIC ACCOMMODATIONS

Each public accommodation must ensure that its facilities provide "full and equal enjoyment of the goods and services offered".⁴⁰ In ensuring this, at a leased location, both the landlord and tenant have responsibility for the necessary access, based, at least in part, on the lease or contract signed between the two parties. Further, all public accommodations must ensure that the participation of disabled individuals is equal to and not lesser than or separate from that offered to other individuals. They must also ensure that the services are provided in the most integrated setting possible that is also appropriate to the needs of the individual. However, no individual with a disability is required to accept an accommodation, aid, service or opportunity which may be offered.

Places of public accommodation may preclude individuals from disabilities from participating in or benefiting from offered services when that individual poses a direct threat to the health or safety of others. This exception, however, may only be used when there is a significant risk that cannot be eliminated by a modification of policies, procedures or by the use of auxiliary aids or services. The determination of a direct threat risk must be based on an individualized assessment utilizing reasonable judgment which relies on current medical knowledge, or on the best available objective evidence. The place of public accommodation must determine the nature and duration of the risk, the probability that an injury will actually occur, and what modifications to policies, procedures might mitigate that risk. Given that enforcement is anticipated to be vigorous, places of public accommodation are encouraged, when invoking this exception, to ensure documentation is available that outlines the evaluation that was conducted and the rationale used in denying an accommodation on this basis.

A major concern of places of public accommodation is anticipated to be the impact of Title III on insurance coverage. The ADA is quite clear that insurance companies may continue to underwrite and classify risks consistent with existing state law, and that holders of insurance policies are not required to change existing policies to comply with the Act. However, caution should be exercised when places of public accommodation anticipate changing or modifying existing insurance coverage to ensure that the changes do not serve to evade the purposes of the ADA. Should an existing insurance policy stipulate that service to individuals with disabilities is to be denied, however, the public accommodation, would not be relieved of the obligation to comply with the Act.

Public accommodations are required to make reasonable modifications to policies, practices, or procedures when those modifications are necessary to ensure equal access for individuals with disabilities, unless they can demonstrate that making modifications would fundamentally alter the nature of the services being offered or would result in an undue burden. Specifically, public accommodations are required to:

1. permit the use of a service animal in the facility by an individual with a disability;
2. ensure an adequate number of check-out aisles accessible to individuals with disabilities are kept open during store hours to ensure an equivalent level of service;
3. provide other auxiliary aids and services, as appropriate (e.g., qualified interpreters, computer-aided transcription services, assistive listening devices and systems, closed caption decoders, videotext displays, large print or Brailled materials, etc.);
4. furnish appropriate auxiliary aids and services to ensure effective communication;
5. provide TDD's (telecommunication devices for the deaf) providing customers (in general) are provided with the opportunity to make incidental outgoing telephone calls on more than an incidental basis; and
6. provide televisions with a means for decoding captions in at least 5 guest rooms of hotels and hospitals.

If a public accommodation believes that accessibility measures are not possible because they would cause an undue burden, an analysis should be conducted that considers at least the nature and cost of the accommodation, the overall financial resources of the location, the number of employees, legitimate safety requirements, including crime prevention measures, the relationship of the site to any parent corporation or entity and, if applicable, the overall financial resources of the parent. It is anticipated that this analysis will result in a more equitable distribution of expense and accommodation responsibility based on the size of the organization responsible for the public accommodation. Therefore, the standard of proof for a small business owner in proving undue hardship would be less than that for a large corporation with multiple public accommodation facilities.

C. EXAMINATIONS AND COURSES

As previously mentioned, any private entity that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or post secondary education, professional, or trade purposes must offer the examinations or courses in a place and in a manner which is accessible to persons with disabilities or must offer alternative accessibility arrangements for those individuals. Specifically, this means that written examinations must be administered in a manner which reflects an individuals aptitude or achievement level, or whatever else is being measured, rather than reflecting the individuals impaired sensory, manual or speaking skills, unless those skills are the factors being measured by the examination.

Modifications to the process may include such things as administering the examination in facilities that are accessible, providing additional time to complete the examination, or adapting the manner in which the examination is given. In addition, appropriate auxiliary aids must be provided which might include such things as taped examinations, interpreters, and Brailled or large print examinations. These requirements for examinations also apply to courses.providing additional time to complete the examination, or adapting the manner in which the examination is given. In addition, appropriate auxiliary aids must be provided which might include such things as taped examinations, interpreters, and Brailled or large print examinations. These requirements for examinations also apply to courses.

D. NEW CONSTRUCTION PROVISIONS

All new construction of a place of public accommodation or commercial facility must be built to provide full accessibility by individuals with disabilities. This provision applies to all facilities designed for first occupancy after January 26, 1993, providing the last application for a building permit, or extension, was certified to be complete after January 26, 1992, and the first certificate of occupancy is issued after January 26, 1993.

All new construction must be in compliance with the minimum guidelines established by the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities "ADAAG". These guidelines are quite specific in providing measurement and clearance requirements for such areas as: door openings, parking spaces, ramp angles, height requirements for telephones, water fountains and ATM's. For example, the ADAAG specifies that one out of every twenty-five parking spaces must be accessible and further, that one of every eight accessible spaces be designated as "van accessible". The guidelines also indicate that at least 50% of all public entrances must be accessible. In this context loading or service entrances are not included.

E. ALTERATION PROVISIONS

For purposes of the ADA, an alteration is defined as a "change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility of any part thereof".⁴² Any alterations begun after January 26, 1992, are covered by the Act. Changes covered by the ADA include, but are not limited to, remodeling, renovation, reconstruction, historic restoration, changes or rearrangement in the configuration of walls and full-height partitions. Normal maintenance such as painting, reroofing, mechanical or electrical system changes, is not considered an alteration.

When alterations are made to a primary function area (for example, the lobby of an office building or any work area, a path of travel to the altered area must be made accessible. This path should also be extended to rest rooms, telephones, and drinking fountains to the extent that the added accessibility costs are not disproportionate to the overall cost of the original alteration. The regulations indicate that a cost exceeding 20% of the original alteration will be considered disproportionate, but it is also stated that when the costs exceed 20%, alterations are to be undertaken to the extent that precludes the disproportionate cost. When decisions are made in this instance, priority is to be given to the following accessibility elements:

1. an accessible entrance;
2. an accessible route to an altered area;
3. at least one accessible rest room for each sex or a single unisex bathroom;
4. accessible telephones;
5. accessible drinking fountains; and
6. additional accessible elements such as parking, storage, and alarms.⁴³

There is a limited exemption on elevator installation under the alteration provisions of the Act. Simply stated, installation is not required for buildings under three stories or with less than 3,000 square feet per floor, unless the building is a shopping center, the professional office of a health care provider, or a station used for public transportation.

All alterations must be in compliance with the guidelines established by the ADAAG. As previously stated, these guidelines are quite specific, and include specific regulatory language in addition to measurement criteria. For example, included are such specifications as requiring at least one interior public text telephone if the alterations would increase the total number of phones to four or more. They also indicate that if an escalator or stair is planned as an alteration where none existed before, a means of accessible vertical access must be provided in order to be in compliance with the guidelines.

F. ENFORCEMENT

Title III will be enforced by the Civil Rights Division of the U.S. Department of Justice. Enforcement may be triggered by either a discrimination complaint filed with the Attorney General or by a compliance review, conducted by the Civil Rights Division. The Attorney General has the authority to bring lawsuits in cases of general public importance or where a pattern or practice of discrimination is alleged. It is worthy to note that there is limited discussion in the implementing regulations regarding the content and frequency of a compliance review process. This is, consequently, an area where little guidance is available at this time.

Individuals may also institute a civil action for injunctive relief without utilizing the services of the Department of Justice. Relief is limited to permanent or temporary injunctions, restraining or other equitable orders. The court may, in its discretion, permit the Department of Justice to intervene in this type of action, and also may appoint an attorney for a complainant and authorize the civil action without the payment of fees or costs.

Individuals alleging discrimination may have suffered specific prohibited treatment or may have a reasonable belief that the treatment is imminent. For example, a wheelchair user may become aware that a new of f ice building where his or her health care provider is located, is being extensively renovated and that the building will be rendered inaccessible at the time of completion. Although the individual may not have been denied access to the building, he or she may file a complaint based on the anticipation of that denial.

Remedies for complaints brought under this Title include injunctive relief, such as orders to make the facility accessible or to provide auxiliary services, equitable relief and monetary damages, excluding punitive damages. Civil penalties may also be imposed of up to $50,000 for the first violation with a maximum of $100,000 for subsequent violations. However, during the first six months of the ADA, until July 26, 1992, no civil actions may be brought against any business employing 25 employees or less and with gross revenues of $1,000,000 or less. Businesses employing 10 employees or less and with gross revenues of $500,000 or less may not have civil actions brought against them during the first year of the Act.

The Act also encourages alternative dispute resolution as a means of resolving issues. Specifically recommended are settlement negotiations, conciliation, facilitation, mediation, fact-finding, mini-trials and arbitration.

Title II of the ADA affects public and transportation services by extending the prohibition of discrimination for programs receiving federal funds, as previously covered by Section 504 of the Rehabilitation Act, to all public entities, including those who do not receive federal financial assistance. The effective date for coverage of public entities was January 26, 1992, and that for transportation services was August 26, 1990.

A. PUBLIC ENTITY COVERAGE

In the context of the ADA, a "public entity" is defined as:

1. any State or local government;
2. any department, agency, special purpose district, other instrumentality of a State or States or local government; and
3. the National Railroad Passenger Corporation and any commuter authority.⁴⁴

Complaints may be filed by any individual, or an authorized representative, who believes that he or she, or a specific class of individuals, has been subjected to discrimination. Complaints must be filed within 180 days with any agency that provides funding to the public entity that is the subject of the complaint, or with the Department of Justice. Complaint investigation procedures are designed to follow those outlined in Section 504 of the Rehabilitation Act if the agency has Section 504 jurisdiction. If the agency does not have this authority, but is designated responsible under the ADA, the Act contains specific investigative procedures to be followed. The complaint process encourages informal resolution, but specifies that if resolution is not achieved, the issuance of a Letter of Findings, is required. This letter must include findings of fact and conclusions of law, a description of a remedy for each violation and a notice of the rights available under the Act. Complainants may file a private suit at any time, whether or not the designated agency finds a violation.

B. TRANSPORTATION

This portion of Title II covers transportation that is provided by public entities. Briefly stated, the law requires that fixed-route bus service, which is defined as designated public transportation on which a vehicle is operated along a prescribed route according to a fixed schedule, must be supplemented by paratransit service, and that all bus and rail transportation be made accessible for passengers with disabilities. Air transportation is not covered by the ADA.

These provisions, which became effective August 26, 1990, made it unlawful for a public entity operating a fixed route system to purchase or lease a new bus, rapid rail vehicle, light rail vehicle or any other new vehicle that is not readily accessible to and usable by individuals with disabilities, including wheelchair users. Used or remanufactured vehicles purchased after August 26, 1990 are also affected by the Act, except where the entity has made demonstrated good faith efforts to purchase or lease a vehicle that is readily accessible and any vehicle being remanufactured to extend its usable life for five years or more must also be made readily accessible.

In addition, a fixed route system must also provide complimentary paratransit or other special transportation services in the geographic area they normally service. This requirement may be waived via petition from the public entity to the Secretary of Transportation. The petition must clearly show that providing this service would result in an undue financial burden. If this is properly demonstrated, the Secretary will only require the provision of such services to the extent that they would not impose such a burden.

The complimentary paratransit or other special transportation services must be provided to any individual with a disability, who:

1. is unable, as a result of a physical or mental impairment (including vision) and without the assistance of another individual, t(--, board, ride, or disembark from any vehicle on the system which is readily accessible and usable by individuals with disabilities;
2. needs the assistance of a wheelchair lift or other boarding assistance device (and is able with such assistance) to board, ride, and disembark from any vehicle which is readily accessible to and usable by individuals with disabilities if the individual wants to travel on a route on the system during the hours of operation at a time (or within a reasonable period of such time) when such a vehicle is not being used to provide designated public transportation on the route; and
3. has a specific impairment-related condition which prevents the individual from traveling to a boarding location or from a disembarking location on a system ⁴⁷.

It should be noted that if rest room facilities are not provided for any passenger on a train, they are not required for individuals with disabilities. The number of securement/storage areas must be equal to one-half of the number of coaches on the train and within ten years or by July 26, 2000, must be equal to the number of coaches on the train. For commuter rail cars, the requirements are essentially the same as those noted previously.

A. INFORMATION, REFERRAL & SUPPORT

B. SERVICE PROVIDERS