“Three weeks ago we celebrated our nation’s Independence Day. Today we’re here to rejoice in and celebrate another ‘independence day,’ one that is long overdue. With today’s signing of the landmark Americans for Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.”
Source: Remarks of President George H.W. Bush at the Signing of the ADA
A brief explanation of ADA, why it was initially enacted, and what it may look like in future by Steven Befort.
The ADA was signed into law by President George H.W. Bush on July 26, 1990. It was the world’s first comprehensive declaration of equality for people with disabilities. Its purpose then, and now, is to “ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard. Independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”
In the almost two decades between the enactment of the ADA (1990) and the enactment of the Amendments to the ADA (2008), the courts acted, in many cases, to narrow the application of the Act’s provisions. Congress responded by passing the Amendments to the ADA in 2008, which made it clear that the Act was to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage “interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973.” (§12101(a))
The Act, codified at 42 U.S.C. 126 beginning at §12101, specifies a broad, three-prong definition of disability as: (1) A physical or mental impairment that substantially limits one or more major life activities of an individual. (2) A record of such an impairment, and (3) Being regarded as having an impairment. This section also specifies that this definition “be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.” (§12102)
The Act is the most comprehensive federal protection of the civil rights of people with disabilities. In five titles, it covers employment rights, rights of access to public accommodations and transportation services and equivalent telecommunications services for the disabled. Titles I-III are discussed in more detail below:
Title I of the ADA-Employment
Stephen Rau explains how the ADA was enacted to eradicate discrimination in the workplace based on disability.
Laurie Vasichek explains a lawsuit from 2000; an employee with disabilities experienced discrimination.
This Title provides that “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” (§12112) For an applicant otherwise able to perform the duties of the position, it requires that the employer make “reasonable accommodations” for with disabilities. It also specifies exclusions from the Act’s coverage, employer defenses and remedies.
The EEOC is charged with enforcement of this Title’s provisions. Remedies include punitive and compensatory damages, expert fees and attorney’s fees.
Title II of the ADA-Public Services
(Part A [Prohibition against Discrimination and Other Generally Applicable Provisions]: §§12131-12134 and Part B [Actions Applicable to Public Transportation Provided by Public Entities Considered Discriminatory]: §§12141-12150)
Title II applies to all state and local governments and any of their departments, agencies or instrumentalities. It provides that “subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” It addresses issues such as accessibility and exclusionary rules, practices and equipment. (e.g. inaccessible voting venues)
The Department of Justice is charged generally with the enforcement of Title II, with the complaint then being directed to the Federal agency that provides funding for the public service charged with discrimination. Remedies are the same as under §504 of The Rehabilitation Act of 1973 and include damages and reasonable attorney’s fees.
Title III of the ADA: Public Accommodations and Services Operated By Private Entities
Private entities covered by this subchapter are listed in §12181. This Title provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the 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.” (§12182) It addresses issues such as accessibility, discriminatory exclusionary practices and segregation of the disabled. It also specifies exclusions from the Act’s coverage, private entity defenses and remedies.
The Attorney General is charged with the enforcement of this title and there is no individual cause of action for damages. Individuals may sue for injunctive relief, but the Attorney General must file actions for damages and civil fines. (§12188)
In 2008, the ADA was amended by the Americans with Disabilities Act Amendments Act of 2008, which important changes to the definition of the term “disability” specifically rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations.
The Future of the ADA
Stephen Befort describes how after the 2008 ADA Amendments Act, the scope of protection was broadened to help more people.
Judge Frank: ADA and Almanac
From Seyfarth Shaw ADA Title III Team, July 26, 2019
Federal ADA Title III Lawsuit Numbers continue to Climb in 2019
The 12% increase in ADA Title III lawsuits during the first six months of this calendar year – 5,592 filed in federal court – are concerning. At this rate, the projected number would exceed 11,000 and be another record breaking year. The majority of cases are regarding facility/building and website accessibility. This number does not include those lawsuits that are filed in state court.
Efforts to address and begin to reduce the growing number of claims through federal legislation, such as the ADA Education and Reform Act, have not proven successful to date.
From the US Equal Employment Opportunity Commission, October 9, 2018
New Digest of EEO Law
The latest edition of the Equal Employment Opportunity Digest (EEO Digest) is now available on the EEOC’s website. The Digest features recent Commission decisions and federal court cases of interest, hyperlinks for easy access to summaries of full decisions, and summaries of noteworthy decisions issued by the EEOC, including cases. The EEOC advances opportunities in the workplace by enforcing federal laws prohibiting employment discrimination. Comments or suggestions on future topics are welcome by emailing federalsectorEEO@eeoc.gov.
From the 11th Circuit Court of Appeals, October 4, 2018
Gil v. Winn-Dixie Stores, Inc.
On October 4, 2018, arguments were heard before the 11th Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc. This was the first case to go to trial on accessibility under the Americans with Disabilities Act (ADA) regarding websites for people who are blind.
On June 12, 2017, in Gil v. Winn-Dixie Stores, Inc., (257 F. Supp. 3d 1340 (S.D. FL 2017)), the US District Court of the Southern District of Florida, held that Winn-Dixie, a grocery store chain, violated Title III of the Americans with Disabilities Act as its website is not available to individuals who are blind and use screen reader software, such as JAWS to access website content.
Following that Verdict and Order Following a Non-Jury Trial, the business community, including the Chamber of Commerce of the United States of America, Restaurant Law Center, American Bankers Association, American Hotel & Lodging Association, American Resort Development Association, Asian American Hotel Owners Association, International Council of Shopping Centers, National Association of Convenience Stores, National Association of Realtors®, National Association of Theatre Owners, National Federation of Independent Businesses, National Multifamily Housing Council, and National Retail Federation, and a separate brief by the Florida Justice Reform Institute has filed an appeal with the 11th Circuit Court of Appeals asking that the decision be overturned on the grounds that the ADA does not extend to websites in addition to concerns about compliance costs.
An amicus curiae brief, prepared by Greg Care, Brown Goldstein & Levy, was filed on behalf of the disability community, including the National Federation of The Blind, American Council of the Blind, American Foundation For the Blind, Association of Late Deafened Adults, Disability Independence Group, Disability Rights Advocates, Disability Rights Education & Defense Fund, Disability Rights Florida, Florida Council Of The Blind, National Association of The Deaf, National Disability Rights Network, National Federation of the Blind of Florida, Washington Lawyers’ Committee For Civil Rights and Urban Affairs, and World Institute on Disability.
From the United States Courts, Judiciary News, July 12, 2018
Just the Facts: Americans with Disabilities Act
The number of civil rights cases have declined in recent years. However, the number of cases brought under the Americans with Disabilities Act (ADA) has increased three-fold with California, Florida, and New York accounting for a significant number of those filings. The U.S. Courts began filing statistics on ADA cases in 2005 in two categories – employment discrimination and other claims. This article summarizes the facts and figures, and statistics over that time period.
From the Oregon Department of Transportation, March 28, 2017
Oregon Department of Transportation – Association of Oregon Centers for Independent Living
The Oregon Department of Transportation and the Association of Oregon Centers for Independent have entered into a Settlement Agreement to complete an inventory and specify a remediation schedule for curb ramps and pedestrian crossing signals across the state. Individuals with disabilities who use wheelchairs and other mobility devices have been forced to use bike lanes, busy streets, or highways as paths of travel; andmissing or inaccessible pedestrian crossing signal buttons presented personal safety issues.
The Agreement covers a review, assessment, and recommendations regarding policies, standards, practices, and training. An Accessibility Consultant, meeting specific qualifications and experience, must also be retained. https://www.oregon.gov/ODOT/Pages/adanotice2.aspx
Text of ADA: http://www.eeoc.gov/laws/statutes/ada.cfm
EEOC resources on the ADA: http://www.eeoc.gov/laws/types/disability.cfm
Text of ADAA: http://www.eeoc.gov/laws/statutes/adaaa.cfm
EEOC resources on the ADAA: http://www.eeoc.gov/laws/statutes/adaaa_info.cfm
Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act, U.S. Department of Justice, Civil Rights Division (January 2017)
- See White House, Office of the Press Secretary, Remarks by the President During Ceremony for the Signing of the Americans with Disabilities Act of 1990 (July 26, 1990)