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Gaining Information Access as An Employee Through The ADA

Summary: Here is a summary of the civil rights people with disabilities have in the workplace under the ADA.

Author:  Kelly Pierce


Introduction

People and Organizations Covered by The Various
Laws


Reasonable Accommodations


Limits to Providing Reasonable Accommodations


Filing A Complaint

Telephone Numbers



Introduction


The main federal laws that protect people
with disabilities from discrimination in employment
are:

  • The Americans with Disabilities Act and

  • The Rehabilitation Act (Sections 501, 503 and
    504).

Additionally, most states and some cities have
human rights laws that also include people with
disabilities. These laws do not specifically provide
funds or processes for accessing assistive technology
or alternative formats. Instead, employers may be
obligated to provide assistive technology at either no
or at a low cost to the employee as a reasonable
accommodation to enable a person with a disability
covered under the law to perform the job.

Some of these laws cover more than employment
discrimination and may have other provisions through
which people can access accommodations, alternative
formats and assistive technology. For purposes of
this article, only the employment sections will be
discussed.

For the most part, all federal and state laws have
the same requirements and offer the same remedies of
the ADA. In this article, the terms and concepts of
the ADA will be discussed unless the other laws differ
significantly.
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People and Organizations Covered by The Various
Laws


The ADA protects qualified individuals with a
disability. This means that people must:

  • Be qualified to perform the essential
    functions of the job (with or without a reasonable
    accommodation); and

  • Have a disability that is a physical or mental
    impairment that substantially limits one or more major
    life activities (such as personal care, performing
    manual tasks, walking, seeing, hearing, speaking,
    breathing, learning and working); or

  • Have a record of such an impairment (such as a
    disease in remission); or

  • Be regarded as having such an impairment.

The ADA applies to private employers, employment
agencies and labor unions under Title I and state and
local government employers under Title II. Private
employers with 15 or more employees come under the
ADA's provisions. All state and local government
employers are covered by the ADA regardless of the
number of employees involved.

Employers not covered by the ADA are the United
States government (except Congress), private
membership clubs, churches and Indian tribes. Section
501 of the Rehabilitation Act covers all federal
departments and agencies.

Section 503 of the Rehabilitation Act covers
contractors and subcontractors with contracts of
$2,500 or more with the federal government.

Section 504 of the Rehabilitation Act covers anyone
who receives federal funds, even if providing
employment is not the main purpose of the funds.

Under the ADA, employers cannot discriminate because
of a disability in application procedures, hiring,
firing, advancement, compensation, training and other
terms and conditions of employment and recruitment.
This includes advertisements, tenure, layoffs, leave
time, benefits and all other employment-related
activities. Refusing to provide a reasonable
accommodation, such as adapting a computer, is
discrimination. In addition, the ADA applies to
contracts the employer has with other businesses, such
as pager services, information services and health
insurance companies.

Section 501 protections extend to all aspects of
employment within federal agencies and departments,
including recruitment, hiring, promotion, benefits and
any other privilege of employment. Section 501 also
requires employers to have affirmative action plans
for the hiring, placement and advancement of people
with disabilities.

Section 503 protections extend to all aspects of
employment, including recruitment, hiring, promotion,
benefits and any other privilege of employment.
Section 503 also requires federal contractors with
contracts of $50,000 or more and 50 or more employees
to implement affirmative action plans for the
employment and advancement of people with
disabilities. Affirmative action requirements are
separate from the requirement to make reasonable
accommodations. Neither the ADA nor Section 504 impose
affirmative action requirements on covered entities.

Section 504 protections extend to all aspects of
employment, including recruitment, hiring, promotion,
benefits and any other privilege of employment.
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Reasonable Accommodations


In general, a reasonable accommodation means
modifications or adjustments that an employer makes to
a work environment to ensure that a person with a
disability is able to enjoy equal employment
opportunities.

The term reasonable accommodation includes: modifying
job structures, work schedules, materials, exams or
policies as well as making facilities accessible and
providing assistive technology for employees or
potential employees.

Before an employer has the responsibility to make a
reasonable accommodation, the employer must know that
the person has a disability. Thus, unless the person
knows that an employer is aware of a disability, the
individual must make sure that the employer is
informed of the disability and that a reasonable
accommodation is needed.

Reasonable accommodations must be determined on an
individual basis. Once an individual identifies the
necessary devices or services, the employer must
determine whether providing them is reasonable. The
ADA regulations that cover private employers state
that a reasonable accommodation may be, among other
things, the "acquisition or modification of equipment
or devices" that an employer may need to provide to an
employee or a potential employee to enable that
individual to perform his or her job.

A reasonable accommodation may also include
permitting an individual with a disability "the
opportunity to provide and utilize equipment, aids or
services that an employer is not required to provide
as a reasonable accommodation." This means, for
example, that, even if a device would be too costly
for a particular employer to be required to provide as
a reasonable accommodation, if someone obtained the
device from another source (such as through rehab),
the employer could not prohibit the individual from
using the device in the workplace.

The regulations to Title II of the ADA, which cover
state and local government, specifically
require "auxiliary aids and services," designed to
provide effective communication. This definition is
part of Title II of the ADA and does not impose
specific requirements on private employers under Title
I of the ADA, nor does it apply to other anti-
discrimination laws. It does illustrate the types of
assistive technology that employers may provide as
reasonable accommodations.

The Title II regulations state that such aids and
services include, among other things:

  • "Telephone handset amplifiers, assistive
    listening devices, assistive listening systems,
    telephones compatible with hearing aids, closed
    caption decoders, open and closed captioning,
    telecommunications devices for deaf persons (TDDs),
    video text displays or other effective methods of
    making aurally delivered materials available to
    individuals with hearing impairments;

  • "Taped texts, audio recordings, Brailled
    materials, large print materials or other effective
    methods of making visually delivered materials
    available to individuals with visual impairments;

  • "Acquisition or modification of equipment or
    devices; and

  • "Other similar services and actions."

This definition includes "state of the art"
devices that may be developed with emerging advanced
technology, although employers are not obligated to
use the latest or greatest. Whether new and highly
advanced or not, the important thing is that the
auxiliary aid or service that is selected affords
effective communication.

Title II of the ADA specifically states that a public
entity is not required to provide personal devices
such as wheelchairs or individually prescribed devices
such as prescription eyeglasses or hearing aids.
Public service employers may, however, be required to
provide certain personal devices for use at the
workplace.

The regulations to Section 504 of the Rehabilitation
Act specify that employees shall not be discriminated
against due to the absence of "auxiliary aids for
participants with impaired sensory, manual or speaking
skills." (In employment or employment-related
training programs, this section applies only to
intake, assessment and referral services).

Assistive technology that is included as part
of "auxiliary aids" means:

  • Brailled and taped materials for persons with
    blindness or vision loss,

  • Equipment to make orally delivered information
    available for persons with hearing impairments,

  • Equipment adapted for use by persons with manual
    impairments,

  • And other similar services and actions.

Employers are not required to provide
individually prescribed devices and services or
devices of a personal nature.

The Rehabilitation Act also requires that programs
which receive federal financial assistance take
appropriate steps to ensure that communications with
applicants, employees and beneficiaries are available
to people with impaired vision and hearing. This may
include telephones, TDDs or equally effective
telecommunications systems.
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Limits to Providing Reasonable Accommodations

An employer will not be obligated to accommodate an
individual's disability, if doing so would constitute
an undue hardship on the employer. This means that the
accommodation would be too costly or difficult or
would fundamentally alter the nature of the employer's
program. The factors that should be considered in
determining whether an accommodation would be an undue
hardship include:

  • The nature and cost of the accommodation
    needed;

  • The overall financial resources of the facility or
    facilities involved in the provision of the reasonable
    accommodation, the number of persons employed there,
    the effect on expenses and resources or the impact
    otherwise of the accommodation on the operation of the
    facility;

  • The overall size and resources of the business of
    the covered entity with respect to the number of
    employees; the number, type and location of its
    facilities; and

  • The type of operation or operations of the covered
    entity, including the composition, structure and
    functions of the workforce; the geographic
    separateness, administrative or fiscal relationship of
    the facility or facilities in question to the covered
    entity.

This is not a complete list but is useful as a
guide to some of the factors that should be considered
in determining what accommodation is reasonable in a
particular instance.
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Filing A Complaint


If an individual believes that an employer has failed
to provide assistive technology as a reasonable
accommodation, or has been discriminated against in
any other way, a complaint can be pursued in a variety
of ways, depending on the applicable law. People may
wish to contact an attorney or advocate for assistance
in filing a complaint.

Under the ADA, individuals can file a complaint with
the Equal Employment Opportunity Commission (EEOC). A
complaint needs to be filed with the EEOC within 300
days of the discrimination. If the EEOC issues a right-
to-sue letter, individuals have 90 days to sue in U.S.
District Court. It is necessary to receive a right-to-
sue letter from the EEOC before filing an action in
court. Complaints can be filed in person or by mail at
the closest regional office.

Under Section 501, governing federal agencies, people
need to consult first with an internal Equal
Employment Opportunity (EEO) counselor within 30 days
of the incident of discrimination and try to correct
the discrimination informally. If it cannot be
corrected within 21 days, the EEO counselor will give
written notice. Within 15 days of receiving the notice
from the EEO counselor, people can file a written
complaint with the federal agency that employs the
person. The employing agency's decision may be
appealed to the EEOC within 20 days after notice of
the employing agency's final decision on the matter. A
complaint must first be filed with EEOC before filing
in court.

A private court action may be filed only if one of
the following occurs:

  • 30 days have not passed following a notice of
    final action by the administering agency;

  • 180 days have passed following an internal
    complaint with the administering agency if there has
    been no agency decision;

  • 30 days have not passed following a final action
    by the EEOC; or 180 days have passed following the
    date of filing an appeal with the EEOC, if no EEOC
    decision has been made.

Under Section 503, covering federal contractors,
individuals may file a complaint at a local office of
the Office of Federal Contracts Compliance Programs
(OFCCP) at the Department of Labor within 180 days of
the discriminatory event. The courts have ruled that
people cannot file a private law suit under ยบ 503.
Under Section 504, covering federal grantees,
individuals can file a complaint with the federal
agency that gives funds to the employer within 180
days (see footnote 1 below) of the
discrimination.

Lawsuits should be filed in U.S. District Court within
one year of the discrimination. Complaints do not need
to be filed with the federal agency before going to
court (see footnote 2 below).

Under the ADA, Sections 501 and 504, individuals may
get injunctive relief (a court order to perform or not
perform an act), which may include, among other
things, reinstatement of a job, back pay, building
modifications, hiring an employee to assist the
individual and the provision of assistive technology.
People might also receive compensation for any losses,
for pain and suffering and for punitive damages,
depending on whether the employer's discrimination
was intentional.

Under Section 503, people cannot file a private
lawsuit, but the Department of Labor may order
reasonable accommodations and may penalize the
employer by withholding funds, terminating its
contract with the employer or preventing the employer
from having future government contracts. People may
be able to get damages, but this issue is not resolved
in the courts. The employer might also be required to
pay a fine, if it does not follow or have an
affirmative action plan.

Footnotes

Footnote 1: Each federal agency is
responsible for its own regulations regarding
complaints under Section 504. Most agencies have
similar regulations and allow 180 days to file. It
would be wise to confirm this with the agency before
filing a complaint.

Footnote 2: The relevant case law indicates
that the state statute of limitations applies. In
California, the statute of limitations for torts
(civil wrongs) is one year, although suits filed under
a statute must be filed within three years. Thus,
Section 504 should have a three-year statute of
limitations. However, to be on the safe side, lawsuits
should be filed within one year.
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Telephone Numbers


Advocates Office for Persons with Disabilities

Telephone Number: (800)949-4232

Description: Regional ADA information
centers are funded by the U.S. Department of Justice
to answer all questions on all parts of the ADA and
provide education and information about the law to the
public, the business community and people with
disabilities. All relevant guidelines, publications
and ADA related documents can be obtained from these
centers in print as well as in Braille, large print
and on cassette tape or computer disk. To find the
nearest center ask to speak to the ADA Specialist.

Equal Employment Opportunity Commission:

Telephone Number: For ADA documents:
(800)669-3362 (voice)

Telephone Number: For ADA questions:
(800)669-4000 (voice)

Job Accommodation Network:

Telephone Number: (800)526-7234

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