Americans with Disabilities Act of 1990 (ADA) as amended by the ADA Amendments Act of 2008 (Public Law 110-325)

42 U.S.C. §§ 12101-12213, 47 U.S.C. §§ 225 and 611;

29 C.F.R. Part 1602.1 et seq., 1630.1 et seq., 1640.1  and 1641.1;

56 Fed. Reg. 35,726-35,756 (July 26, 1991)

 

The Law:  Title I of the ADA prohibits employment discrimination against a qualified individual with a disability.  The law requires that reasonable accommodations be made to allow the employee to perform the essential functions of the job, or to assist the employee in the application process if necessary.  The ADA contains strict confidentiality requirements for medical information related to employee's disabilities.  The law also contains requirements for elimination of physical barriers to access.  See also the Architectural Barriers Act of 1968, 42 U.S.C. § 4151 et seq., which governs requirements for handicap access to buildings constructed, altered or leased with federal funds.  The Uniform Accessibility Standards (UFAS) are found at 41 C.F.R. Part 101-19.6.  For modifications to programs and services under Title III of the ADA, see Americans with Disabilities Act of 1990 in the section of this summary on Non-Discrimination with Respect to Students.

Clarification With Lilly Ledbetter Fair Pay Act of 2009
On January 29, 2009, President Obama signed this new law which is retroactive to May 28, 2007. The new law rejects the holding in Ledbetter v. Goodyear Tire and Rubber Co. In that case The Supreme Court held that the charge filing deadline on discriminatory pay begins to run with the initial pay decision, and squarely rejected the theory that each new paycheck amounted to an act of continuing discrimination. The Ledbetter law amends Title VII, the ADA, the Rehab Act and The Age Discrimination in Employment Act of 1967 to provide that the charge-filing periods  would commence when: (1) a discriminatory compensation decision or other practice is adopted; (2) an individual becomes subject to the decision or practice; or (3) an individual is affected by an application of a discriminatory compensation decision or practice (including each time wages, benefits, or other compensation is paid). See the Jackson Lewis Newsletter posted January 29, 2009: Lilly Ledbetter Fair Pay Act of 2009 Becomes Law. This article contains suggested actions for employers.

November 23, 2009 ACE/CUPA-HR Comments on Proposed EEOC regulations: 9 pages of comments.  

Proposed Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 74 Fed. Reg. 48431 (Sept. 23, 2009)

Generally, the overall effect of these proposed changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. This is in accord with the statutory changes. For a summary of the specific changes, see the Jackson Lewis article dated Sept. 23, 2009 titled Long-Awaited Proposed ADA Regulations issued by the EEOC.

ADA Amendments Act of 2008 (ADAAA)(Effective January 1, 2009)

In 2008, on Sept. 25, 2008 President Bush signed into law the ADA Amendments Act of 2008. The focus of this law is to clarify the definition of disability for purposes of employment, public entities and public accommodations. This law expressly overturns two Supreme Court decisions on the ADA:  Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The criticism of those two cases was that they had unduly narrowed the "broad scope of protection" provided by the ADA in defining the term disability.

In addition, the current EEOC regulations defining the term substantially limits (as significantly restricted) were found to be inconsistent with Congressional intent, and the EEOC was ordered to draft new regulations with a less demanding standard for an individual trying to establish a substantially limiting mental or physical impairment.

The ADAAA clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Under the amended law, employers may not consider mitigating measures when determining whether an individual is disabled, with the exception of glasses and contact lenses. An employer may be found to have discriminated against an individual if the individual can prove discrimination because of an actual or perceived impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. This last sentence does not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. Employers are not required to provide reasonable accommodations to employees who are solely regarded as disabled and are not actually disabled. An impairment only needs to substantially limit one major life activity to qualify as a disability, and not just those activities that are of primary importance. Under the ADAAA the following are major life activities:

(A) IN GENERAL- For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) MAJOR BODILY FUNCTIONS- For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

For tips on what steps employers should take see the Jackson Lewis Sept. 25, 2008 newsletter titled: President Bush Signs Landmark Amendments to the Americans with Disabilities Act. See also the Comparison chart on the ADA as construed by the Courts and as passed by the Senate.

ADA Accessibility Guidelines for Buildings and Facilities, Architectural Barriers Act (ABA) Final Rule

In this final rule, effective September 21, 2004, The Architectural and Transportation Barriers Compliance Board (Access Board) is revising and updating its accessibility guidelines for buildings and facilities covered by the Americans with Disabilities Act of 1990 (ADA) and the Architectural Barriers Act of 1968 (ABA). These guidelines cover new construction and alterations and serve as the basis for enforceable standards issued by other Federal agencies.
The ADA applies to places of public accommodation (this includes private educational institutions), commercial facilities, and State and local government facilities. The ABA covers facilities designed, built, altered with Federal funds or leased by Federal agencies. As a result of this revision and update, the guidelines for the ADA and ABA are consolidated in one Code of Federal Regulations part, 36 CFR Part 1191. The Access Board has sought to harmonize the Guidelines with industry standards, particularly ANSI A117.1 standard and the International Building Code.

Advisory notes in the rule are provided for informational purposes only, and are not mandatory. The play areas and recreational facilities guidelines have been integrated into this final rule. Neither the proposed rule nor the draft final rule included provisions for multiple chemical sensitivities or electromagnetic sensitivities. Comments were received that urged the Board to address the acoustical performance of buildings and facilities, in particular school classrooms and related student facilities. The preamble mentions ASA/ANSI S12.60-2002, Acoustical Performance Criteria, Design Requirements and Guidelines for Schools and notes that this standard is voluntary unless referenced by a code, ordinance, or regulation.

Corrections to final rule; 70 Fed. Reg. 45283, Aug. 5, 2005

These are correcting amendments to the above final rule, effective Sept. 6, 2005.

Recordkeeping:  Institutions of higher education are required to preserve any personnel or employment record for a period of two years from the date of the making of the personnel action or record involved, whichever is later.  See 29 C.F.R. § 1602.49.  In addition, all records necessary for the completion of Fall staff survey of the Integrated Postsecondary Education Data System (Form IPEDS) (in place of the Higher Education Staff Information Report EEO-6) must be kept for three years.  For the full history of this see Record Keeping and Reporting Requirements for Independent Colleges and Universities , 2nd Edition, NACUA, edited by Joseph W. Ambash, with relevant paragraph below.*  See also 29 C.F.R. § 1602.48.  An institution is required to keep certain adverse impact data for two years after elimination of the adverse impact.  See 46 C.F.R. § 60-3.

Produce and File Report:  The Fall staff survey Form IPEDS (in place of the EEO-6) must be produced biennially, filed with the National Center for Educational Statistics,  and a copy kept for three years.  Note that the form does not ask any questions on disability, but the heading of the regulations groups the ADA and Title VII together for the purpose of what records are to be kept.

Notification:  Notification to employees and applicants of the ADA policy is required.

Grievance Procedure:  While this provision technically falls under 29 U.S.C. § 794, note that any recipient of federal financial assistance that employs 15 or more persons shall designate at least one person to coordinate its efforts to comply with the Rehabilitation Act of 1973, and shall adopt grievance procedures that incorporate appropriate due process procedures and that provide for the prompt and equitable resolution of complaints.  This provision is included here under ADA because these two laws have become intertwined in the minds of many.  See 34 C.F.R. § 104.7.  Note, however, that grievance procedures need not be established with respect to complaints from applicants for employment.

  Click for Selected ADA Case Law

See the Department of Justice Settlement Agreement with Chatham University (December 08) on accessibility to physical facilities on campus.  

Resources

NACUA ADA/FMLA Resources and Links (password protected)

See Q and A on the ADA for information on alterations to facilities and other topics

ADA: Applying Performance and Conduct Standards to Employees with Disabilities: Guide Issued by EEOC

EEOC Guide Veterans with Service-Connected Disabilities and the ADA: A guide for Employers:
Explains the difference between USERRA and the ADA, and gives very practical advice on what can and cannot be done by employers hiring and recruiting veterans with disabilities.

ADA Accessiblity Guidelines Homepage
July 26, 2005 EEOC Enforcement Guidance on ADA and Cancer
EEOC Enforcement Guidance and Related Documents
EEOC Compliance Manual
EEOC Regulations
Department of Justice home page on the ADA.
EEOC site containing the text of the ADA.
ACCESS FOR ALL, A Guide for Implementing the ADA was produced by the Cornell University Program on Employment and Disability
July 1999 U.S. EEOC "Instructions for Field Officers: Analyzing ADA Charges After Supreme Court Decisions Addressing ‘Disability’ and ‘Qualified’."
Reasonable Accommodations for Attorneys with Disabilities: Provided by the U.S. Equal Opportunity Commission
NACUA Resource Page on ADA/FMLA (password protected for NACUA members)

* From Second Edition of Record-Keeping and Reporting Requirements for Independent and Public Colleges and Universities, edited by Joseph W. Ambash available from NACUA.

"Pursuant to Title VII and the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., the Equal Employment Opportunity Commission ("EEOC") has promulgated specific record-keeping and retention procedures relating to the composition of a work force according to race, ethnicity, sex and disabilities, as defined under the law. See 29 C.F.R. §§ 1602.7 - 1602.27. Prior to 1993, institutions were required to maintain all records and information therefrom, "which were . . . necessary for the complet[ion] of Higher Education Staff Information Report, EEO-6." Id. at § 1602.48. The EEO-6 was filed biennially by every institution that had 15 or more employees. 29 C.F.R. § 1602.50.

Beginning in 1993, the Department of Education, National Center For Education Statistics (NCES), assumed the responsibility of compiling all information previously submitted on the EEO-6 onto a new reporting form -- the Integrated Post Secondary Education Data System Survey (IPEDS). The IPEDS thus replaced the EEO-6 report formerly required by EEOC. Institutions must now submit the IPEDS to the NCES on a biennial basis.

Retention. All records used to complete the EEO-6 or the IPEDS, and the information therefrom, must be retained for a period of three years "at the central administrative office of [the institution], at the central administrative office of a separate campus or branch, or at an individual school which is the subject of the records and information, where more convenient." 29 C.F.R. § 1602.48."

compliance box links updated 5/12/09 rab

6/5/09 updated to add Related Policies

updated 9/28/09 to add proposed regulations issued by EEOC on 9/23/09

12-11-09 to add ACE/CUPA-HR comments on regs as proposed