On September 25, 2008, President George W. Bush signed into law the The ADA Amendments Act of 2008 (ADAAA). It is intended to give broader protections for disabled workers and "turn back the clock" on court rulings which Congress deemed too restrictive. The ADAAA includes a list of impairments to major life activities.
The ADA states that a covered entity shall not discriminate against a qualified individual with a disability. This applies to job application procedures, hiring, advancement and discharge of employees, worker's compensation, job training, and other terms, conditions, and privileges of employment. Covered entity can refer to an employment agency, labor organization, or joint labor-management committee, and is generally an employer engaged in interstate commerce and having 15 or more workers. Discrimination, among other things, may include limiting or classifying a job applicant or employee in an adverse way, denying employment opportunities to people who truly qualify, or not making reasonable accommodations to the known physical or mental limitations of disabled employees, not advancing employees with disabilities in the business, and/or not providing needed accommodations in training. Employers can use medical entrance examinations for applicants, after making the job offer, only if all applicants (regardless of disability) must take it, and if it is treated as a confidential medical record. Qualified individuals do not include any employee or applicant who is currently engaging in the illegal use of drugs when that usage is the basis for the employer's actions.
Part of Title I was found unconstitutional by the United States Supreme Court in the case of Board of Trustees of the University of Alabama v. Garrett as violating the sovereign immunity rights of the several states as specified by the Eleventh Amendment to the United States Constitution. The provision allowing private suits against states for money damages was invalidated.
Title II has two sections. One covers public agencies (local, county, state, etc., government and their units). That section generally requires the agencies to comply with regulations similar to Section 504 of the Rehabilitation Act. These rules cover access to all programs offered by the entity. Access includes physical access described in the Uniform Federal Accessibility Standards or the ADA Standards for Accessible Design and access that might be obstructed by discriminatory policies or procedures of the entity.
Covington vs. McNeese is one well-publicized case involving discrimination under Title II. This case received international attention and caused an uproar when the president of McNeese State University, a Lake Charles, Louisiana public school, argued that the disabled had no fundamental right to access the campuses of public universities. McNeeseLawsuit.com
The other section of Title II is specific to public transportation provided by public entities. It includes the National Railroad Passenger Corporation, along with all other commuter authorities. This section requires the provision of paratransit services by public entities.
Both sections state that a "public entity" can be any state or local government or any department or agency thereof. The lack of accessibility or certain services can be considered discrimination, regardless of who it actually affects. For example, a lack of wheelchair accessibility in passenger cars, or even the leasing of wheelchair inaccessible ones without a "good faith" attempt to lease wheelchair accessible ones is considered discrimination under the ADA and the Rehabilitation Act of 1973.
Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. "Public accommodations" include most places of lodging (such as inns and hotels), recreation, transportation, education, and dining, along with stores, care providers, and places of public displays, among other things. This implies the presence of an ADA Compliance Kit in places of "public accommodations".
Most of the lawsuits filed under Title III of the ADA deal with the physical conditions or "accessibility" of physical places. Under Title III of the ADA, all "new construction" (construction, modification or alterations) after the effective date of the ADA (approximately July of 1992) must be fully compliant with the Americans With Disabilities Act Accessibility Guidelines ("ADAAG") found in the Code of Federal Regulations at 28 C.F.R., Part 36, Appendix "A."
Perhaps even more importantly is the fact that Title III also has application to already existing facilities. One of the definitions of "discrimination" under Title III of the ADA is a "failure to remove" architectural barriers in existing facilities. See .
This means that even facilities that have not been modified or altered in any way after the ADA was passed still have obligations. The standard is whether "removing barriers" (typically defined as bringing a condition into compliance with the ADAAG) is "readily achievable," defined as "easily accomplished without much difficulty or expense."
The statutory definition of "readily achievable" calls for a balancing test between the cost of the proposed "fix" and the wherewithal of the business and/or owners of the business. Thus, what might be "readily achievable" for a sophisticated and financially capable corporation might not be readily achievable for a small "mom-n-pop" outfit.
There are exceptions to this title; many private clubs and religious organizations may not be bound by Title III. With regard to historic properties (those properties that are listed or that are eligible for listing in the National Register of Historic Places, or properties designated as historic under State or local law), those facilities must still comply with the provisions of Title III of the ADA to the "maximum extent feasible" but if following the usual standards would "threaten to destroy the historic significance of a feature of the building" then alternative standards may be used. Nonetheless, as Frank Bowe predicted when he testified as the lead witness on Title III in the Senate hearings leading up to enactment, the fact that Title III calls for accessibility in, and alterations to, many thousands of stores, restaurants, hotels, etc., in many thousands of communities across the U.S. means that this Title probably has had more effect on the lives of more Americans with disabilities than any other ADA title.
Title V includes technical provisions. It discusses, for example, the fact that nothing in the ADA amends, overrides or cancels anything in Section 504.
Disability is, in the ADA, defined as "a physical or mental impairment that substantially limits a major life activity." The Equal Employment Opportunity Commission (EEOC) was charged with interpreting the 1990 law with regard to discrimination in employment. Its regulations narrowed "substantially limits" to "significantly or severely restricts".
In 2008, effective January 1, 2009, the ADAAA broadened the interpretations and added to the ADA examples of major life activities including, but 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" as well as the operation of several specified "major bodily functions". The Act overturns a 1999 U.S. Supreme Court case holding that mitigating measures had to be considered in determining whether an impairment substantially limited a major life activity; it specifically provides that such impairment must be determined without considering such ameliorative measures. Another court restriction overturned is the interpretation that an impairment that substantially limits one major life activity must also limit others to be considered a disability.
According to Business & Legal Reports, Inc., more employees will now fit within the definition of disabled under the ADA. The House of Representatives Committee on Education and Labor states that the amendment "makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability."
The newer legislation, ADAAA (S. 3406, 2008), was supported by the following groups:
ADA Watch/National Coalition for Disability Rights, Air Force Association, Air Force Sergeants Association, Air Force Women Officers Associated, Alpha-1 Association, Alpha-1 Foundation, ALS Association, Alzheimer's Association, American Association for Affirmative Action, American Association for Respiratory Care, American Academy of Nursing, American Association of Diabetes Educators, American Association of People with Disabilities (AAPD), American Association of University Women, American Autoimmune Related Diseases Association, American Bakers Association, American Cancer Society Cancer Action Network, American Civil Liberties Union (ACLU), American Council of the Blind, American Diabetes Association, American Federation of Government Employees – Veterans Council, American Federation of Labor-Congress of Industrial Unions (AFL-CIO), American Federation of State, County & Municipal Employees (AFSCME), American Federation of Teachers (AFT), American Foundation for the Blind, American Foundry Society, American Jewish Committee, American Kidney Fund, American Liver Foundation, American Lung Association, American Medical Rehabilitation Providers Association, American Mental Health Counselors Association, American Physical Therapy Association, American Psychological Association, American Society of Employers, AMVETS, Anti-Defamation League, APSE: The Network on Employment, Arab Anti-Discrimination Committee, The Arc of the United States, Arthritis Foundation, Asian American Justice Center, Associated Builders and Contractors Inc., Association of Jewish Family & Children's Agencies, Association of Programs for Rural Independent Living (APRIL), Association of University Centers on Disabilities (AUCD), Asthma and Allergy Foundation of America, Autism Society of America, The Autistic Self-Advocacy Network, Bazelon Center for Mental Health Law, B’nai B’rith International, Brain Injury Association of America, Breast Cancer Network of Strength, Business and Institutional Furniture Manufacturers Association, Care4Dystonia Inc., Center for Women Policy Studies, Children and Adults with Attention-Deficit/Hyperactivity Disorder, Christopher and Dana Reeve Foundation, CIGNA Corporation, Coleman Global Telecommunications - LLC, Community Action Partnership, Community Health Charities of America, Control Technology Inc., COPD Foundation, Council of Parent Attorneys and Advocates, Council of State Administrators of Vocational Rehabilitation (CSAVR), Crohn's and Colitis Foundation of America, Disabled American Veterans, Disability Policy Consortium Inc., Easter Seals, Eastman Chemical, Enlisted Association of the National Guard of the United States, Epilepsy Foundation, Friends of the National Institute of Dental and Craniofacial Research, Guide Dog Foundation for the Blind Inc., Hearing Loss Association of America, Heat Transfer Equipment Company, Higher Education Consortium for Special Education, HR Policy Association, Human Rights Campaign, Huntington's Disease Society of America, Hydrocephalus Association, International Association of Official Human Rights Agencies, International Franchise Association, International Paper Company, Japanese American Citizens League, Jewish Council for Public Affairs, Koller-Craft Plastic Products, The LAM Foundation, Lambda Legal, Lawyers' Committee for Civil Rights Under Law, Leadership Conference on Civil Rights (LCCR), Learning Disabilities Association of America (LDA), The Leukemia & Lymphoma Society, Lupus Foundation of America, March of Dimes, Mental Health America, Military Officers Association of America, Motorola, Myasthenia Gravis Foundation of America, NAACP Legal Defense & Educational Fund Inc., National Alliance on Mental Illness (NAMI), National Alopecia Areata Foundation, National Association for the Advancement of Colored People (NAACP), National Association for Black Veterans, National Association for Employment of People who are Blind (NAEPB), National Association for Uniformed Services, National Association of Councils on Developmental Disabilities, National Association of County Behavioral Health and Developmental Disability Directors, National Association of Governors’ Committees on People with Disabilities (NAGC), National Association of Human Rights Workers, National Association of Manufacturers, National Association of Social Workers, National Association of State Directors of Special Education, National Association of State Head Injury Administrators, National Association of the Deaf, National Center for Learning Disabilities (NCLD), National Congress of Black Women Inc., National Council for Community Behavioral Healthcare, National Council of Churches in the USA, National Council of Jewish Women, National Council of La Raza (NCLR), National Council on Independent Living (NCIL), National Disability Rights Network (NDRN), National Down Syndrome Congress, National Down Syndrome Society, National Education Association (NEA), National Employment Lawyers Association, National Fair Housing Alliance, National Family Caregivers Association, National Federation of Filipino American Associations (NaFFAA), The National Foundation for Ectodermal Dysplasias, National Health Council, National Health Law Program, National Industries for the Blind (NIB), National Kidney Foundation, National Legal Aid and Defender Association, National Marfan Foundation, National Multiple Sclerosis Society, National Organization for Women, National Organization on Fetal Alcohol Syndrome (NOFAS), National Psoriasis Foundation, National Women’s Law Center, Naval Reserve Association, Nevadans for Equal Access Inc., NISH, Non-Commissioned Officers Association, Northwestern Mutual, Organization of Chinese Americans, Osteogenesis Imperfecta Foundation, Our Children Left Behind, The Paget Foundation, Paralyzed Veterans of America, Parent Project Muscular Dystrophy, Precision Metalforming Association, Prevent Blindness America, Reserve Enlisted Association, RESOLVE: The National Infertility Association, Ryder System Inc., SEIU – Service Employees International Union, Sikh American Legal Defense and Education Fund (SALDEF), Sjogren's Syndrome Foundation, Society of Human Resource Management, Spina Bifida Association, Teacher Education Division of the Council for Exceptional Children, Textile Rental Services Association of America, United Cerebral Palsy, United Food and Commercial Workers International Union, United Methodist Church - General Board of Church and Society, United Jewish Communities, United Spinal Association, Uniweld Products Inc, U.S. Chamber of Commerce, U.S. Psychiatric Association, Us TOO International, Veterans of Modern Warfare, Vietnam Veterans of America, Women of Reform Judaism, The Workmen’s Circle/Arbeter Ring, and the World Institute on Disability
Many of the standards mandated by the national government for the ADA were first incorporated by Ruthe B. Cowl, who established and operated the Cowl Rehabilitation Center in Laredo, Texas from 1959 until her death in 2008.
I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We've all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we've been committed to containing the costs that may be incurred.... Let the shameful wall of exclusion finally come tumbling down.
Second, the public accommodation section of the ADA is often criticized for creating "professional plaintiffs" who make a living out of collecting monetary damages from noncompliant businesses. As violations of Title III are widespread, and compliance is determined by a highly technical set of comprehensive federal regulations, it is easy for persons with disabilities and lawyers to identify businesses to sue for major and/or minor violations of the law. One Miami attorney filed 700 complaints in a three-year period, typically settling each case for $3000 to $5000 in attorney's fees and a promise to remedy the violation.
However, the ADA allows private plaintiffs to receive only injunctive relief (a court order requiring the public accommodation to remedy violations of the accessibility regulations) and attorneys' fees, and does not provide monetary rewards to private plaintiffs who sue non compliant businesses. Unless a state law, such as the California Unruh Civil Rights Act, provides for monetary damages to private plaintiffs, persons with disabilities do not obtain direct financial benefits from suing businesses that violate the ADA.
Thus, "professional plaintiffs" are typically found in states that have enacted state laws that allow private individuals to win monetary awards from non compliant businesses. The attorneys' fees provision of Title III does provide incentive for lawyers to specialize and engage in serial ADA litigation, but a disabled plaintiff does not obtain financial reward from attorneys' fees unless they act as their own attorney.
Moreover, there is benefit to these "private attorneys general" who identify and compel the correction of illegal conditions: they increase the number of public accommodations accessible to persons with disabilities.
Even those who support the intent of the law worry that it might have unintended consequences. Among other arguments, supporters hypothesize that the Act creates additional legal risks for employers who then quietly avoid hiring people with disabilities to avoid this risk. And such researchers (e.g., DeLeire, 2000; Acemoglu & Angrist, 2001) claim to have documented a sharp drop in employment among Individuals with a disability after passage of the Act (see Schwochau & Blanck for counter arguments).
The ADA did not come with a guide for how employees and employers should apply the Act to mental disabilities. Psychologist Dr. John Fielder (1994) wrote a manual for employers that has been used by many parties concerned with issues of cognitive disabilities.
Others (see Schall, 1998) believe that the law has been ineffectual. Many people think that one of the major flaws or weaknesses of the Americans with Disabilities Act is that it puts almost the entire burden of enforcement on individual persons with disabilities.
Thousands of people have submitted requests to the Department of Justice for investigation of barriers in older buildings and design and construction errors in brand new facilities. Most of these are ignored, because even if the government wanted to investigate all of them, they lack the staff or budget to do so.
Most business owners realized after a while that there was little chance that the DOJ would come after them, and thus put off making changes to remove barriers. In most cases of uncooperative businesses, individuals must hire an attorney and bring a civil suit.
Another criticism by John D. Wilker is that the act limits the ability of businesses to make their own choices when it comes to employees.
This is a case where a major retailer, Target Corp., was sued because their web designers failed to design its website to enable persons with low or no vision to use it
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), was a United States Supreme Court case about Congress's enforcement powers under the Fourteenth Amendment to the Constitution. It decided that Title I of the Americans with Disabilities Act was unconstitutional insofar as it allowed states to be sued by private citizens for money damages.
Another example, Barden v. The City of Sacramento, filed in March 1999, claimed that the City of Sacramento failed to comply with the ADA when, while making public street improvements, it did not bring its sidewalks into compliance with the ADA. Certain issues were resolved in Federal Court. One issue, whether sidewalks were covered by the ADA, was appealed to the 9th Circuit Court of Appeals which ruled that sidewalks were a "program" under ADA and must be made accessible to persons with disabilities. The ruling was later appealed to the U.S. Supreme Court which refused to hear the case, letting stand the ruling of the 9th Circuit Court. .
This was a case that was decided by the United States Supreme Court in 2005. The defendant argued that as a vessel flying the flag of a foreign nation was exempt from the requirements of the ADA. This argument was accepted by a federal court in Florida and, subsequently, the Fifth Circuit Court of Appeals. However, the U.S. Supreme Court reversed the ruling of the lower courts on the basis that Norwegian Cruise Lines was a business headquartered in the United States whose clients were predominantly Americans and, more importantly, operated out of port facilities throughout the United States.
This was a case before the United States Supreme Court in 1999. The two plaintiffs L.C. and E.W. were institutionalized in Georgia for diagnosed mental retardation and schizophrenia. Clinical assessments by the state determined that the plaintiffs could be appropriately treated in a community setting rather than the state institution. The plaintiffs sued the state of Georgia and the institution for being inappropriately treated and housed in the institutional setting rather than being treated in one of the state's community based treatment facilities.
The Supreme Court decided under Title II of the ADA that mental illness is a form of disability and therefore covered under the ADA, and that unjustified institutional isolation of a person with a disability is a form of discrimination because it "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life." The court added that "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."
Therefore, under Title II no person with a disability can be unjustly excluded from participation in or be denied the benefits of services, programs or activities of any public entity.