Assumption: ADA suits are flooding the
courts.
Fact: The ADA has resulted in a surprisingly small number of lawsuits-only about
650 nationwide in five years. That is tiny compared to 6 million businesses, 666,000
public and private employers, and 80,000 units of state and local governments that must
comply.
Assumption: The ADA's definition of disability is broad and vague and has
resulted in "bizarre and arcane" discrimination claims that are wasting the time
of the EEOC and the courts.
Fact: As with any new statute, there is a period during which employers and
employees learn about their rights and obligations under the law. While individuals have
the right to file charges, not all charges are meritorious. The job of the EEOC
investigator is to separate the wheat from the chaff. Further, the flexibility provided by
the ADA definition of "disability" means that there will be individuals who
bring claims for conditions that do not satisfy the statutory standards, and the claim
will be dismissed.
Assumption: The ADA forces business and government to spend lots of money hiring
unqualified people with disabilities.
Fact: To be protected by the ADA an individual must be qualified. No unqualified
job applicant or employee with a disability can claim employment discrimination under the
ADA. Employees or job applicants must meet all the necessary requirements of the job and
perform the essential functions of the job with or without reasonable accommodation. No
accommodation must be provided if it would result in an undue hardship on the employer.
Assumption: The ADA, along with other laws such as the FMLA and Workers'
Compensation, are squeezing out small businesses that cannot afford to hire human resource
specialists to advise them regarding the complexities of these laws.
Fact: Truly small businesses, those with fewer than 15 employees, are not
covered by the ADA. (The FMLA only applies to employers with 50 or more employees.) For
employers who are covered, the ADA provides an undue hardship defense for reasonable
accommodations that are unduly costly or burdensome. Smaller employers can more easily
establish undue hardship because they have fewer resources.
Assumption: The ADA is being misused by people alleging mental and neurological
impairments.
Fact: The ADA covers individuals with physical or mental impairments that
substantially limit major life activities because individuals with such impairments have
traditionally been subjected to pervasive employment discrimination. Just as the ADA
excludes people with temporary physical problems, so does it exclude people with mild or
short-term mental health problems. Neurological impairments are conditions or diseases
involving the nervous system, including the brain, spinal cord, ganglia, nerves, and nerve
centers. ADA charges indicate that there is significant discrimination against persons
with neurological impairments. Psychiatric impairments involve a biological, social, or
psychological dysfunction. Individuals with psychiatric disabilities have traditionally
been subjected to discrimination, not because they are unable to successfully perform job
duties, but because of myths, fears, and stereotypes associated with such impairments.
Assumption: The ADA is rigid and requires businesses to spend lots of money to
make their existing facilities accessible.
Fact: The ADA is based on common sense. The law recognizes that altering
existing structures is more costly than making new construction accessible. The law only
requires that public accommodations (e.g., stores, banks, hotels, and restaurants) remove
architectural barriers in existing facilities when it is "readily achievable"
(i.e., it can be done "without much difficulty or expense"). Inexpensive, easy
steps that can be taken include ramping one step, installing a bathroom grab bar, lowering
a paper towel dispenser, rearranging furniture, installing offset hinges to widen a
doorway, or painting new lines to create an accessible parking space.
Assumption: ADA requires that sign language interpreters be used in all
situations involving persons who are deaf.
Fact: The ADA only requires that effective communication not exclude people with
disabilities-which in many situations means providing written materials or exchanging
notes. The law does not require any measure that would cause an undue financial or
administrative hardship.
Assumption: The ADA requires extensive renovations of all state and local
government buildings to make them accessible.
Fact: The ADA requires all government programs, not all government buildings, to
be accessible. "Program accessibility" is a very flexible requirement and does
not require a local government to do anything that would result in an undue financial or
administrative burden. Local governments have been subject to this requirement for many
years under Title 5 of the Rehabilitation Act of 1973. Not every building, nor each part
of every building needs to be accessible. Structural modifications are required only when
there is no alternative available for providing program access. Let's say a town library
has an inaccessible second floor. No elevator is needed if it provides "program
accessibility" for persons using wheelchairs by having staff retrieve books.
Assumption: Everyone claims to be covered under the ADA.
Fact: To be protected under the law, a person must have an impairment that
substantially limits a major life activity, must have a record of such an impairment, or
must be regarded as having such an impairment. While people have the right to file
charges, not all charges are meritorious. EEOC investigators are instructed to analyze
whether a charging party has an ADA-protected disability. If an individual does not have a
substantially limiting impairment (and does not allege "record of" or
"regarded as" discrimination), the complaint is dismissed.
