Practical, Purposeful Legal Counsel

The Americans with Disabilities Act of 1990 covers both private and state and local government employers. Employers are subject to ADA compliance if they have 15 or more employees. State and local governments are covered no matter the number of employees. Federal government employees are covered under the Rehabilitation Act of 1973.

The ADA protects against discrimination in employment based on a job applicant's or employee's qualifying disability. The act covers every aspect of employment: recruiting, hiring, firing, compensating, promoting, assigning jobs, training, providing leave and benefits, and all other employment activities.

The ADA describes a disability as "a physical or mental impairment that substantially limits a major life activity." Major life activities include hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, and learning or working. Note the word "substantially." A minor impairment, or one that is temporary such as a broken arm, would likely not be considered substantial. The law also protects those who are "regarded" as being disabled and those who are "associated with" disabled individuals.

The ADA recognizes that a disabled person must be able "to perform the essential functions of the job with or without a reasonable accommodation." In other words, employers can hire the most qualified individual for a position based on experience, education, skill level, and professional licensing requirements. The ADA is not an affirmative action program. It merely makes it illegal to discriminate against someone because of a disability.

A reasonable accommodation is a workplace physical, procedural, technical, or task-related modification that breaks down "barriers" that may force a disabled person to find it harder to perform the "essential functions" of their job.

Generally, the disabled applicant or employee must request a reasonable accommodation, and the employer is expected to provide one unless it causes an "undue hardship." An undue hardship could be one that is too costly, would result in physical modifications of the workspace that would cause problems for others, or would result in other problems affecting the operation of the business.

Reasonable accommodations are covered under Title I of the ADA, and compliance is monitored and enforced by the U.S. Equal Employment Opportunity Commission (EEOC).

Though it does not directly enforce the ADA, the U.S. Department of Labor (DOL) offers guidelines on providing accessibility for the disabled that include these considerations, among others:

• Are parking spaces close to the entrance of the structure?
• Is the pathway from the parking lot free of obstacles such as steps or level changes?
• Are ramps appropriately graded and equipped with handrails?
• Are doors at least 36 inches wide to accommodate wheelchairs? Are they easy to open?
• Are restrooms, water fountains, and other commons facilities accessible to the disabled?

For "places of public accommodation," the ADA also requires that the business's web presence be accessible to the disabled. Web content should be accessible to blind users, deaf users, and those who must navigate by voice, screen readers, or assistive technologies.

Practical solutions for website compliance include, among others:

• Voice navigation for each page
• Video captions or transcripts
• Alternative text for photographs