Module 2 Legal Implications: An Overview of the Americans with Disabilities Act (ADA) MODULE GOALS: 1. To understand the history of Americans with Disabilities Act (ADA) and related legislation 2. To increase comprehension of the Americans with Disabilities Act and its employment provisions EQUIPMENT: 1. PowerPoint Presentation (or alternate format) 2. LCD Projector 3. Computer / Laptop 4. Flip Chart 5. Flip Chart Markers 6. Masking Tape MATERIALS: 1. Quiz: Get the Facts! 2. Quiz: Get the Facts! 10 T/F pages for ìaround-the-room-activityî 3. Handout: The Americans with Disabilities Act - Summary TIME: 45 ñ 60 minutes (time may vary) Notes to Trainer: Review module before training and prepare necessary materials. Show PowerPoint: Module 2: Legal Implications of the Americans with Disabilities Act (ADA) Show PowerPoint: Module Goals: 1. To understand the history of the Americans with Disabilities Act (ADA) and related legislation. 2. To increase comprehension of the Americans with Disabilities Act and its employment provisions Suggested Script: This module will focus on legislation impacting the employment, training, and reasonable accommodation of people with disabilities. Show PowerPoint: Laws created in order to ìlevel the playing fieldî - 1. Architectural Barriers Act of 1968. 2. Rehabilitation Act of 1973. 3. Individuals with Disabilities Education Act (IDEA) formerly Education for All Handicapped Childrenís Act of 1975. 4. Fair Housing Act, as amended in 1988. 5. The Americans with Disabilities Act of 1990 Suggested Script: Years ago, there were no laws protecting people with disabilities from discrimination. After the Civil Rights Movement in the 1960s, the Disability Rights Movement began to form based on the same principles. Legislation such as the Fair Housing Act, the Rehabilitation Act, and the Individuals with Disabilities Education Act were passed by Congress and signed into law. Suggested Script: Over the years, the equity theme became the moral force behind the Disability Rights Movement. In the late 80s, the Americans with Disabilities Act, or ADA, was introduced for the first time in Congress. The ADA prohibits discrimination against people with disabilities in employment, public accommodations, activities of State and local government, transportation, and telecommunications. The ADA was eventually passed by Congress and signed into law on July 26, 1990. Suggested Script: Letís begin with a quiz about the Americans with Disabilities Act. Then we will talk in more detail about Title I: Employment Provisions. Activity: ADA Quiz / GET THE FACTS Notes to Trainer: As the trainer, you can choose how to present this quiz to your audience. It is included as part of the PowerPoint presentation, as a handout, and as an ìaround-the-room-activity.î You can also combine two or more methods. Possible ways to use the ADA Quiz: 1. PowerPoint slides ñ All of the T/F questions and answers are displayed on the slides below. If you are short on time, you can just go over the questions and answers as a large group. 2. Handouts ñ You may wish to distribute the quiz questions as a handout for the participants, and then review the answers on the PowerPoint Slides. 3. You could also review the quiz solely as a PowerPoint presentation and then distribute the handout at the conclusion of the training. 4. Around-the-room-activity ñ To create a more active environment, you can place all of the T/F statements (found in the handouts section) around the room on 8.5x11 pieces of paper or cardstock. Participants could be given dots (or different color markers) for this activity. They should then move around the room, read each T/F statement, and place their dot in the T or F section, whichever they believe to be correct. You can then review the correct answers using the PowerPoint slides. Show PowerPoint: TRUE OR FALSE ñ QUESTION #1 - The Americans with Disabilities Act (ADA) mandates the hiring of individuals with disabilities. Show PowerPoint: FALSE ñ ANSWER #1 - The ADA says you should hire the most qualified applicant. It does not mandate that you hire individuals with disabilities; it just ensures equal access to the employment process.1 Show PowerPoint: TRUE OR FALSE ñ QUESTION #2 ñ Businesses with 15 or more employees are covered by Title I (the employment provision) of the ADA. Show PowerPoint: TRUE ñ ANSWER #2 - Businesses with 15 or more employees are covered by Title I (the employment provision) of the ADA. 1 Show PowerPoint: TRUE OR FALSE ñ QUESTION #3 - Sixty-five percent (65%) of working age individuals with disabilities are unemployed. Show PowerPoint: TRUE ñ ANSWER #3 ñ Among working-age individuals with disabilities, only 35% work full or part-time (2004 National Organization on Disability / Harris Survey). 2 Show PowerPoint: TRUE OR FALSE ñ QUESTION #4 - There is a toll-free number that I can call to discuss the ADA and get confidential technical assistance to help my business. Show PowerPoint: TRUE ñ ANSWER #4 - The ADA & IT Information Centers (also known as the DBTACs) have a toll-free number and provide free technical assistance! 800-949-4232 Voice / TTY Show PowerPoint: TRUE OR FALSE ñ QUESTION #5 - Governments must make all of their facilities fully ADA accessible. Show PowerPoint: FALSE ñ ANSWER #5 - Governments need to provide full program access. Their programs and services must be accessible when examined as a whole. This does not mean that each building must be fully accessible.1 Show PowerPoint: TRUE OR FALSE ñ QUESTION #6 - Two out of three unemployed people with disabilities would prefer to be working. Show PowerPoint: TRUE ñ ANSWER #6 - Two out of three unemployed people with disabilities would prefer to be working (2000 National Organization on Disability / Harris Survey). 3 Show PowerPoint: TRUE OR FALSE ñ QUESTION #7 - Employees with disabilities are unable to meet performance standards. Show PowerPoint: FALSE ñ ANSWER #7 - According to a 1990 DuPont survey, 90% of employees with disabilities rated average or better in job performance compared to 95% for employees without disabilities. A similar 1981 DuPont study found that 92% of employees with disabilities rated average or better in job performance compared to 90% of employees without disabilities. 4 Show PowerPoint: TRUE OR FALSE ñ QUESTION #8 - Employees with disabilities are more likely to have accidents on the job than employees without disabilities. Show PowerPoint: FALSE ñ ANSWER #8 ñ In the 1990 DuPont study, the safety records of employees with and without disabilities were identical. 4 Show PowerPoint: TRUE OR FALSE ñ QUESTION #9 - Companies report that employees with disabilities have better retention rates, reducing the high cost of turnover. Show PowerPoint: TRUE ñ ANSWER #9 - Companies report that employees with disabilities have better retention rates, reducing the high cost of turnover (Unger, 2002). 5 Show PowerPoint: TRUE OR FALSE ñ QUESTION #10 - There is a forty percent (40%) chance of acquiring a disability if you live to the age of 80. Show PowerPoint: FALSE ñ ANSWER #10ñ There is a 73.6% chance of acquiring a disability if you live to age 80 (U.S. Census Bureau). 6 GENERAL ADA OVERVIEW Notes to Trainer: You can summarize what is written below in your own words, or read it as it is written. You may also distribute the ADA Summary Handout. Suggested Script: To the more than 50 million Americans with disabilities, the Americans with Disabilities Act is an unprecedented opportunity to eliminate barriers to independence and productivity. The ADA is modeled after the Civil Rights Act of 1964. It is based on a bill originally drafted by the National Council on Disability that was supported by major constituency groups and disability organizations. Suggested Script: The purpose of the ADA is to extend to people with disabilities civil rights similar to those that were available on the basis of race, color, sex, national origin, and religion through the Civil Rights Act of 1964. It prohibits discrimination on the basis of disability in private sector employment, activities of State and local governments (including employment), places of public accommodation, transportation, and telecommunication services. Suggested Script: The ADA has five titles. Show PowerPoint: The Americans with Disabilities Act (ADA): Title I: Employment. Title II: Public Services. Title III: Public Accommodations. Title IV: Telecommunications. Title V: Miscellaneous. TITLE I: EMPLOYMENT Suggested Script: TITLE I: EMPLOYMENT: The ADA prohibits discrimination against a qualified individual with a disability in employment and includes specific features related to reasonable accommodation, qualification standards, and other labor management issues. Suggested Script: The law specifically says ìno covered entity shall discriminate against a qualified person with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employmentî [Section 102 (a)]. 1 Suggested Script: Generally, employers must provide ìreasonable accommodationsî to qualified employees with disabilities, unless providing the accommodation would be an undue hardship. Title I defines ìqualified person with a disability,î ìreasonable accommodation,î and ìundue hardship.î TITLE II: PUBLIC SERVICES (STATE AND LOCAL GOVERNMENT) Suggested Script: TITLE II: PUBLIC SERVICES (STATE AND LOCAL GOVERNMENT): The ADA addresses services and activities of State and local governments, including public transportation provided by public entities. The transportation provisions of the Act are intended to improve access in vehicles, facilities, and systems. Suggested Script: Title II requires that all public entities provide ìprogram accessibilityî to people with disabilities. It also requires that State and local governments modify policies, practices, and procedures to prevent discrimination against people with disabilities. Finally, Title II requires public entities to ensure effective communication with people with sensory disabilities (e.g. blindness, deafness, etc.). TITLE III: PUBLIC ACCOMMODATIONS Suggested Script: TITLE III: PUBLIC ACCOMMODATIONS: The ADA addresses public accommodations, also known as businesses and services operated by private entities. Title III covers different types of public accommodations, such as hotels and motels, movie theaters, grocery stores, retail stores, and many others. Privately owned transportation services are also included. Suggested Script: The ADA specifically states "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" [Section 302(a)]. 1 Suggested Script: Businesses may need to modify their policies and practices and remove barriers to improve access. Public accommodations must also ensure effective communication for people with sensory disabilities. Title III also contains the ADA Accessibility Guidelines (ADAAG), which include the specifications for architectural accessibility. TITLE IV: TELECOMMUNICATIONS Suggested Script: TITLE IV: TELECOMMUNICATIONS: The ADA mandates that companies offering telephone service to the general public must offer telephone relay services to individuals with communication disabilities who use TTYs or similar telecommunications devices. Every state must have a relay system in place. Suggested Script: The law specifically states the requirement to... "ensure that interstate and intrastate telecommunications relay services are available... to hearing impaired and speech impaired individuals..." [Section 225(b)(1)]. 1 The relay system enables people with communication disabilities who cannot use a regular telephone to communicate with anyone. Suggested Script: For example, Sally, who is deaf, wants to order pizza. Using a TTY, she calls the relay service by dialing 7-1-1. Once the relay operator answers, Sally types a message that she wants to call a pizza restaurant and types in the number for the operator to dial. The operator then calls the restaurant. The operator reads to the restaurant employee what Sally types, and then types back the reply from the restaurant to Sally. The operator continues to relay the questions, answers, and comments until the conversation is completed. Show PowerPoint: Understanding RELAY: This PowerPoint slide is a graphic which illustrates a typical relay conversation. One picture shows a woman using a TTY. There is an arrow pointing towards a male communication assistant who has both a TTY and a voice telephone. Another arrow points to a woman who is speaking into a telephone. TITLE V: MISCELLANEOUS Suggested Script: TITLE V: MISCELLANEOUS: Title V addresses the relationship between the ADA, Section 504 of the Rehabilitation Act, and state laws. Whichever law provides the most protections to people with disabilities takes precedent over the other laws. In addition, the Act provides for administrative remedies comparable to those of Title II and VII of the Civil Rights Act of 1964. Perhaps the most significant part of Title V is that it covers Congress and other agencies of the legislative branch of government. Suggested Script: The ADA was passed to protect civil rights for people with disabilities. The law does not mandate preferential treatment. CIVIL RIGHTS ACT OF 1964 AND THE REHABILITATION ACT OF 1973 (BEFORE THE ADA) Suggested Script: The Civil Rights Act of 1964 laid the earliest groundwork for disability rights by establishing a framework prohibiting discrimination on the basis of race, religion, national origin, and sex. It addresses private employment, public accommodations and programs and activities receiving federal funds. The Civil Rights Act does not talk about disability. Suggested Script: Disability rights came to the forefront when the Section 504 of the Rehabilitation Act was enacted in 1973. The Rehabilitation Act prohibits discrimination against people with disabilities in programs and activities receiving federal funds. For the first time, people with all kinds of disabilities were recognized as belonging to a protected class. Suggested Script: Now that you have a general overview of the law, we are going to talk in more detail about the employment provisions. Notes to Trainer: After providing the brief ADA overview, you may wish to include more detailed information, depending on the needs of your audience. (Do not attempt to address these issues if you are not knowledgeable about the ADA). Suggested Script: Letís look at who is protected by Title I, the employment provisions of the ADA. Show PowerPoint: Definition of Disability: An individual with a disability is one who: * has, * has a record of, or, * is regarded as having a physical or mental impairment that substantially limits a major life activity. Show PowerPoint: Definition of Disability Continued - An individual with a disability is one who has a physical or mental impairment that substantially limits a major life activity. Suggested Script: "Substantially limits" is a very high standard. Basically, it means that the person must have a disability that really limits their ability to perform a major life activity. Suggested Script: Can anyone tell me some major life activities? Notes to Trainer: Field responses from the audience. One method for soliciting information would be to ask participants to list the physical or mental tasks they needed to arrive at this training. You can compare the responses with the information. Show PowerPoint: Major Life Activities: These are basic activities that the average person in the general population can perform with little or no difficulty: Caring for Oneself, Performing Manual Tasks, Walking, Seeing, Hearing, Speaking, Breathing, Concentrating, Learning, Working, Sitting, Standing, Lifting. Suggested Script: Letís examine some disabilities that we are familiar with and the major life activity that is substantially limited. 1. Individuals who are deaf are substantially limited in their ability to hear. 2. Individuals who use wheelchairs are substantially limited in their ability to walk. 3. Individuals who have cerebral palsy may be substantially limited in their ability to perform manual tasks. Suggested Script: The key is to look at each person individually. Not all cases are clear-cut. There are some individuals with impairments that may or may not be covered by the ADA. It all depends on how the impairment affects the individual. Suggested Script: For example, what about individuals with asthma? Whether they are considered a person with a disability depends on how the asthma affects their ability to perform major life activities. It is important to remember that people with the same disability may function very differentlyósome may be substantially limited and some may not. Suggested Script: We now know the ADAís definition of who a ìperson with a disabilityî is. The ADA only protects a qualified person with a disability. Letís look at the ADAís definition of qualified. Show PowerPoint: Qualified Individual with a Disability: A qualified individual with a disability means one who satisfies the requisite skill, experience, education, and other job-related requirements of the position such individual holds or desires, and who: with or without reasonable accommodation can perform the essential functions of such a position Suggested Script: Always remember you never have to consider anybody who is not qualified for the job!! The person, regardless of disability, must be qualified and the employer determines who is qualified. Suggested Script: Letís see what the term reasonable accommodation means. Show PowerPoint: A Reasonable Accommodation is: Any change in the work environment or way things are done that enables a person with a disability to enjoy equal employment opportunity. Must be provided to qualified individuals unless it poses an undue hardship Show PowerPoint: Reasonable Accommodation Means: 1. Modification to the job application process. 2. Modification to the work environment or the manner under which the position held is customarily performed. 3. Modification that enables an employee with a disability to enjoy equal benefits and privileges of employment Suggested Script: The term reasonable means plausible or feasible in this context. We are discussing accommodations that are effective for both the individual and the employer. Employers must make effective accommodations to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodation would pose an undue hardship. Show PowerPoint: Reasonable Accommodations are dependent upon: 1. The specific requirements of the job. 2. The particular needs of the employee or applicant. 3. The extent to which modifications or aids are available without causing undue hardship Suggested Script: Accommodations are made to alleviate or lessen the effects of a specific barrier. Obviously, accommodations are dependent on the disability and the specific job requirements. Letís look at some examples: Show PowerPoint: Reasonable Accommodations can include: Flexible work schedules, Providing qualified readers or interpreters, Adjustment or modifications of examinations, training materials, or policies, Rearranging workspace to accommodate necessary equipment, and Reassignment to vacant positions. Suggested Script: Have you ever known an employer to make provisions to help their employees be more productive? Try to think of some examples of non-disability related accommodations. Notes to Trainer: Prompt: 1. for people who work at computersóglare guards. 2. for people who answer several phonesóheadsets. 3. for parents with child care needsóflexible schedules Suggested Script: All of these are examples of accommodations that employers may currently provide for all workers. Suggested Script: Who is the first consultant or expert you should talk to about providing an effective accommodation? ?The person needing the accommodation! Suggested Script: The Job Accommodation Network (JAN) is an information and consultation service providing individualized accommodation solutions via a dedicated 800 line and website. JANís purpose is to make it possible for employers and others to share information about job accommodations. Their website is an excellent resource of accommodation ideas for specific disabilities. The telephone number is 1800ADA-WORK voice/TTY or on the web at www.jan.wvu.edu. Suggested Script: JAN conducted a survey of employers to examine the cost of reasonable accommodations. It found that: Show PowerPoint: Average Cost of Job Accommodations: * 20% of all accommodations suggested had no cost. * 51% cost between $1 and $500. * 11% cost between $501 and $1,000. * 3% cost between $1,001 and $1,500. * 3% cost between $1,501 and $2,000. * 8% cost between $2,001 and $5,000. * 4% cost more than $5,000. (Source: Job Accommodation Network) 7 Suggested Script: There is a four-step process used to determine a reasonable accommodation. The most important step is consulting with the individual with the disability while keeping an open mind. Show PowerPoint: Determining Reasonable Accommodation: 1. Review the particular job and determine its purpose and the essential functions. 2. Consult with the individual with a disability to determine his or her need for accommodation. 3. Identify potential accommodations in consultation with the individual. 4. Should alternatives be discovered in the accommodation process, consider the preference of the individual and select the method that best serves both the individual and the employer Suggested Script: The Equal Employment Opportunity Commission emphasizes that this process should be an interactive one between the employer and the employee. Suggested Script: The ADA says that you are obligated to consider providing a reasonable accommodation only for a qualified person with a disability who discloses the need for an accommodation. Generally, it is the individualís responsibility to request an accommodation. Suggested Script: Now we are going to review exactly what an employer can and cannot ask during an interview according to the ADA. First letís looks at what questions an interviewer may ask. Show PowerPoint: Disability Related Inquires: An Interviewer May Ask Questions About: 1. An applicantís ability to perform job-related duties (e.g. Please look at the attached job description. Can you perform these tasks with or without an accommodation?) 2. An applicant's previous job experience (e.g. What were your responsibilities at your previous place of employment?) 3. Skills required to perform the job (e.g. Tell me about your skills and how they will allow you to perform this job.) 4. Educational background (e.g. Where did you attend school? What did you study?) Suggested Script: Basically, you can ask anything you need to know about the applicantís skills and ability to perform the job. Always ask questions that focus on the job and its essential functions. Concentrate on the individualís ability rather than disability. Show PowerPoint: Disability Related Inquiries: Interviewer May Not Ask About: 1. The nature or extent of the applicantís disability. 2. If the applicant or anyone in his/her family has a disability. 3. The applicantís health. 4. If the applicant has a history of emotional illness. 5. If the applicant has ever had an injury or disease. 6. If the applicant has ever seen a psychiatrist. 7. If the applicant has ever had a drug or drinking problem Suggested Script: The law says that you cannot make any disability-related inquiries before a conditional offer of employment is made. Keep the focus on the job and the requirements for the job. Generally, these questions can be asked post-offer and before employment begins, as long as they are asked of all applicants. All policies prohibiting current illegal drug use, drinking alcohol on the job, or administration of drug tests are permissible. Suggested Script: It is important to remember that many people with disabilities are already on the job, and may need accommodations at any point during employment. Show PowerPoint: Disclosure: Under the ADA, an employer must provide reasonable accommodations to the known physical and mental limitations of a qualified applicant or employee with a disability. Suggested Script: It is important to remember that employers do not have to provide accommodations for disabilities that they do not know about. If an individual wants an accommodation, he or she must disclose their disability (assuming it is not apparent). Suggested Script: For many individuals with hidden disabilities, disclosure is a tough and personal decision. One potential benefit is improved communication with a supervisor. Another is that once an individual discloses a disability, he or she is entitled to request a reasonable accommodation, which often results in increased satisfaction in the workplace and the ability to maintain and exceed professional goals. Suggested Script: Still, there are possible risks for disclosure. While the ADA regulates how medical documentation can be used and demands confidentiality, it is unable to regulate attitudes and discrimination does sometimes follow disclosure. Suggested Script: Individuals can disclose their disability during any point in the employment process. However, if an individual is having trouble meeting performance or conduct standards in the workplace because of the disability, it is not advisable for the employee to wait until problems become serious, as employers are not required to rescind any legitimate disciplinary actions that are taken prior to disclosure. An employer only has to provide reasonable accommodations that may enable the individual to meet the requirements after gaining the knowledge about the disability. Suggested Script: The ADA does not say how an employee should disclose or request an accommodation. However, requesting an accommodation in writing and in person keeps communication clear. Suggested Script: Of course, for individuals who do not need a reasonable accommodation, there is no need to disclose a disability. Suggested Script: In circumstances when a disability is hidden or not obvious, the employer can ask for documentation to verify that the person has an ADA disability. Show PowerPoint: Disclosure: Reasonable Documentation: 1. Documentation from an appropriate professional concerning the individualís disability and functional limitations. 2. To verify the existence of a disability and the need for an accommodation Suggested Script: Keep in mind the purpose of the documentation is to confirm that the individual has a disability and determine how to accommodate the individual on the job, not to find out everything about the personís health and medical history. Therefore you are limited in what you can ask for, specifically, confirmation of disability and some explanation of the limitations imposed by the disability that are be relevant to the job and accommodation issues. Suggested Script: Once a person discloses their disability, it is important to keep this information confidential. Show PowerPoint: Disclosure: Confidentiality: 1. An employer must keep all information concerning the medical condition or history of its applicants or employees confidential and separate from personnel files. 2. This includes medical information that an individual voluntarily tells his/her employer Suggested Script: Finally, letís look at the options a person with a disability has if they feel they have been discriminated against. Show PowerPoint: Title I Enforcement. 1. File a complaint (EEOC, State FEPA). 2. File a lawsuit. 3. Alternative Dispute Resolution Suggested Script: There is whatís called an exhaustive requirement under Title I of the ADA. A person must file a complaint with EEOC or the state FEPA (Fair Employment Practices Agency) before he or she can file a lawsuit. Once the EEOC or FEPA has investigated the complaint, they may issue a right to sue letter. At that point, the person can file a lawsuit. Finally, there is an option called Alternative Dispute Resolution. Both parties have to agree to have their case resolved by an ADA-trained mediator. Both EEOC and the Department of Justice have successful mediation programs. Notes to Trainer: You may want to go into more detail on the employment provisions depending on the needs of your audience. (Do not attempt to address these issues if you are not knowledgeable about how the ADA applies to them.) Supplementary publications are available for most of these topics. Notes to Trainer: The ADA & IT Information Center can provide you with this material (800-949-4232 voice / TTY and www.adata.org) Some other topics you might consider covering follow: Tax credits for employers, Direct threat, Qualification standards, Illegal use of drugs and alcohol, Medical exam requirements, General non-discrimination requirements, Relationships with other law, Insurance, Worker's Compensation enforcement Suggested Script: In summary, the ADA was passed to protect the civil rights of people with disabilities, the one minority group that anyone can join at any time. It cuts across national origin, gender, socioeconomic level, profession, race, religion and all other demographic factors. Notes to Trainer: If you have not already, you may choose to distribute the ADA Summary at this point. Legal Implications: An Overview of the Americans with Disabilities Act (ADA) Copyright © 2004 by TransCen, Inc. [Ver. 10/05]