Roeher Institute Report on the ADA; The ODA Committee is a voluntary coalition of individuals and community organizations who have united to secure the passage in Ontario of a new law which would achieve a barrier-free society for persons with disabilities.

Title II Discrimination in Public Services

Title III Public Accommodations and Services operated by Private Entities

The Broader Framework of Disability Related
Antidiscrimination/Human Rights Legislation

The Americans with Disabilities Act (ADA) was signed into law in 1990. It prohibits discrimination on the basis of disability in employment (Title I), in access to and benefits of public services (Title II), and in access to public accommodations and services provided by "private entities" (e.g. hotels, restaurants, movie theaters -- Title III). Title IV of the Act amends the U.S. Communications Act to enable people with hearing and/or speech impairments to communicate with others by telephone and to receive public service announcements by closed-captioning. Title V specifies a range of other "miscellaneous provisions".

This report provides: an overview of the administration of the ADA; the provisions under Titles I - III of the Act and the impacts identified in research of the ADA to date. The report reviews selected case law that deals with how "reasonable accommodation" requirements and "undue hardship" provisions have been interpreted by the courts. In addition, the report provides an overview of the Canadian framework for disability equality rights.

A thorough analysis of the operation and impacts of the ADA is hampered by the lack of systematic data gathering and evaluation studies in the US. Instead, policy analysts have had to rely on discrete studies, opinion polls, various statistical sources and their own research interviews. The discrepant data sources yield inconsistent and sometimes contradictory insights into various facets of the law, its administration and its impacts. The present research drew from the available information, including interviews with about thirty knowledgeable individuals directly involved with the design and implementation of the ADA.

As the ADA is a relatively new piece of legislation, its full impacts will probably take some years to be known. Any analysis of the Act's impacts needs to be read in that context.
Administration and Enforcement of the ADA

Responsibility for the administration of the ADA is dispersed among several federal departments and agencies. The Department of Justice is designated as the lead Department for the Act. The Equal Employment Opportunity Commission (EEOC) is responsible for the administration of Title I of the ADA, pertaining to employment discrimination in the private sector. The Department of Justice is responsible for employment in state and local government under Title I. Line departments are responsible for administration, in their respective areas of competence, of Title II and III of the ADA applying to local and state government and commercial and public accommodation. The line departments are: Agriculture, Education, Health and Human Services, Housing and Urban Development, Interior Department, Labour and Transportation. The Department of Justice is responsible for any residual matters under Title II not covered by these departments. The Department of Justice is also responsible for administration of Title III issues of access to public accommodations.

Title V of the Rehabilitation Act of 1973 -- a model for the requirements of the ADA -- continues to cover employment discrimination in the executive branch of the federal government. The ADA, however, covers Congress and other entities in the legislative branch. As well, each federal agency maintains its own body responsible for employment discrimination. There is a right of appeal to the EEOC if employees are not satisfied with the decisions reached by those bodies.

In addition, a number of independent and semi-independent agencies provide services of various kinds related to the ADA. For example, "technical assistance" to employers and others on accommodating persons with disabilities is available through the Job Accommodation Network (JAN), which is run by The President's Committee on Employment of People with Disabilities and funded in part through the EEOC. The National Institute on Disability and Rehabilitation Research (NIDRR) within the Department of Education funds ten regional Disability and Business Technical Assistance Centers, as well as other regionally-based activities.

Another major function of the administering bodies is the resolution of complaints, through voluntary compliance wherever possible. The complaint-resolution process includes primary assessment of incoming complaints, mediation and finally legal action as a last resort. In the US system, individuals always maintain the right to take private action on their own, and may sometimes be supported in doing so under the ADA by publicly-funded agencies (e.g., law centres operating within the Protection and Advocacy System, funded by Health and Human Services) and non-profit disability rights organizations funded through private contributions (e.g., Disability Rights Education and Defense Fund, Inc.).

There is a regular co-ordinating function for educational outreach and technical assistance efforts across all responsible departments and agencies. However, there is otherwise little overall coordination. There are no regular meetings of lead agencies to generally oversee the implementation of the ADA or assess whether it is meeting its objectives. Moreover there is no capacity to move funds from one agency administering the ADA to another if there is an imbalance of funds and demands.

Each administrative unit is responsible for developing its own regulations under its sections of the ADA. These regulations are vetted by the Department of Justice.

Titles I - III

Title I

Following a phase-in period from 1990 to 1994, Title I provisions apply to private employers with 15 or more employers, state and local governments, employment agencies, labour organizations, and joint labour-management committees. The U.S. Federal Government, programs, and contractors are similarly covered under the Rehabilitation Act.

Title I prohibits discrimination against "qualified individuals with disabilities" in employment practices of those employers to which the Act applies. A person is qualified who meets the skill, experience, education, and other requirements of a job position that he or she holds or seeks. Title I does not impose hiring targets or quotas on employers.

Available data present a mixed picture of the impacts of Title I. Some data indicate that the employment status of persons with disabilities has not been substantially affected to date by the implementation of the ADA. Other data suggest persons with severe levels of disability may have experienced modest gains since the Act was introduced. A few indicators suggest the rate of participation in full-time jobs for persons with disabilities has dropped slightly in recent years and that the number of small businesses hiring persons with disabilities has decreased. At the same time, other data suggest increasingly positive experiences, attitudes, and awareness about the hiring, retention, and accommodation of persons with disabilities in employment. Requests to the Job Accommodation Network (JAN) for information on employing persons with disabilities have increased significantly in recent years and job accommodations have proven to be cost-effective. These findings need to be viewed in context: the provisions covering employers with fifteen or more employees came into effect only recently (1994) and large-scale evaluations of the impacts of Title I have not yet been conducted.

Aside from the lack of systematic data and evaluation studies for measuring the impacts of Title I, there are a number of issues that have had a bearing on its effectiveness. The ADA represents a complaint-driven approach to addressing discrimination. However, procedural backlog and delays hampered the processing of complaints. The backlog and delays are in part the result of limited administrative funding. Inconsistent legal interpretations with respect to "reasonable accommodations" and "undue hardship" have left unclear the nature and extent of employer obligations under the Act. These and other factors have weakened incentives for employers to proactively make efforts to hire and retain persons with disabilities.

Title II

Title II covers discrimination against people with disabilities by providers of public services. It includes any state or local governments and any of their departments, agencies or other instruments. Title II includes these entities whether or not they receive federal funding. The range of services includes courthouses, parks and other recreational and leisure facilities, public post-secondary education programs, and public transportation.

Title II also includes communication access so that public entities must provide equipment, signage and services (e.g., interpreters) for people with hearing, speech and visual impairments.

ADA provisions to reduce barriers to equal access in education apply to colleges and universities. Other legislation addresses lower levels of education. Title II requires that both abstract barriers and concrete physical barriers be removed from educational programs. This includes practices in registration procedures, financial aid, housing, transportation and parking, pre-entrance testing, examinations, learning resources and curricula methods of teaching. Auxiliary aids and services may be provided, which the Act defines to include: "(A) qualified interpreters or other effective methods of making aurally delivered materials available...; (B) qualified readers, taped texts, or other effective methods of making visually delivered materials available...; (C)acquisition or modification of equipment or devices; and (D) other similar services and actions."

Concerning public transportation, Title II requires that all new vehicles and new facilities for fixed route systems be accessible to people with disabilities, and that existing vehicles and facilities be retrofitted for full accessibility. Auxiliary and paratransit services can be made available until the regular fixed route systems are made fully accessible, and may be made available on a long-term basis for individuals who cannot use the regular system even with accommodations.

There has been little research conducted correlating the ADA with increases in educational participation. However, a recent Harris poll found that the percentage of persons with disabilities who completed at least some college education increased from 29 per cent to 44 per cent between 1986 and 1994.

The ADA would appear to have had some impact on improving the accessibility of public transportation services: by June 1996, 60 per cent of all buses met ADA standards. However, paratransit rides are expected to triple by the end of 1997, in part because the regular transportation system is not able to fully accommodate the volume of demand for services for people with disabilities, despite the ADA.

The costs of implementing measures to accommodate persons with disabilities in public services have been problematic, especially for transportation systems. Issues of cost have resulted in increasing numbers of requests for waivers to the time-limits by which compliance must be achieved. Eligibility determination and regulatory considerations have had to take into account the spirit of the ADA, the available financial resources for implementation, issues of convenience for consumers and the practicality of administration.

Title III

Title III prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, or advantages, by private entities providing public accommodations and services (e.g.. restaurants, public gathering places, private education providers, child care centres). Prohibited practices include screening out participation or access by persons on the basis of their disability; and failure to make necessary accommodations, provide needed aids and devices, or remove architectural barriers.

Fewer than 3,000 complaints were filed with the Department of Justice for discrimination under Title III between 1990 and 1994. Complaints that were not rejected were generally resolved through out-of-court mediation and negotiations. A number of large establishments (e.g. large hotel chains) have undertaken voluntary compliance rather than wait for complaints to be filed. Most of the positive action generated by Title III has been by larger-scale businesses, and large business associations have actively promoted ADA compliance with their memberships.

Small businesses especially tend to be concerned about the effects of achieving compliance on their profit margins, and for many the benefits for day-to-day operations do not yet seem apparent.

Businesses generally lack awareness about tax incentives for them to comply with Title III provisions. Current funding structures have been unable to fully absorb the costs of barrier-removal without fee hikes (e.g., in child care centres), despite tax incentives for this purpose. Concerns have also emerged about the impact of Title III's physical accessibility requirements on historic landmarks, buildings and properties.

The Broader Framework of Disability-related Antidiscrimination / Human Rights Legislation

In addition to the Americans with Disabilities Act, a number of other US federal statutes accord civil rights protections to persons with disabilities. These include the Rehabilitation Act, the Fair Housing Act, the Air Carrier Access Act, the Civil Rights of Institutionalized Persons Act, and the Individuals with Disabilities Act. Various state and local antidiscrimination laws provide protections for persons with disabilities extending beyond those mandated by the ADA.

Within the Canadian context, human rights protections for people with disabilities consist of constitutional entitlements and federal and provincial statutory protections. The Canadian framework includes Section 15 of the Charter, which provides guarantees of equality at all levels of legislative authority in Canada. Other federal provisions include: the Human Rights Act, the Employment Equity Act, and the Transportation Act. At the provincial/territorial level, rights and entitlements are protected by each jurisdiction's Human Rights Code, Education Act or School Act, and Building Code.

Conclusion

General observations that can be made about the ADA are that accommodation of the particular requirements of persons with disabilities seems to be good business practice with a significant return on investment, and that the educational and technical assistance services rendered to implement the Act have been useful and well-received. On the other hand, the implementation of the ADA has been affected by definitional ambiguities and debates concerning undue hardship and reasonable accommodation. The ADA is a complaints-based mechanism for dealing with discrimination, which requires sufficient administrative resources for federal agencies to efficiently process complaints and to take a volume of strategically-significant cases to court. Sufficient funding has not been made available, however. The administration of the Act is complex, lacking in overall coordination. The scant survey data and analysis make it difficult to ascertain with confidence the impacts the ADA is having. Despite the positive benefits of the ADA for Americans with disabilities so far, a range of administrative issues continue to hamper the full benefits the Act was intended to achieve.
Introduction

Congress passed and President Bush signed into law the Americans with Disabilities (ADA) Act on July 26, 1990. In the speech which the President made at the signing of the ADA, he likened its passage to tearing down the Berlin Wall. He said, "Let the shameful wall of exclusion finally come tumbling down". Senator Tom Harkin (D-Iowa), chief Senate sponsor of the Act, called it the "emancipation proclamation" for people with disabilities.

The ADA is a federal mandate which prohibits discrimination on the basis of disability in the areas of employment, public accommodation, transportation and telecommunications services. Under this law, a person is disabled if that person has a physical or mental impairment that substantially limits one or more other persons major life activities. It also includes those who have a record of such impairment or are regarded as having such an impairment.

This study reviews the provisions of the ADA, and examines, using secondary sources of data and selected interview data, the ADA's impact on barrier removal for persons with disabilities. It also reviews how the legislation is being enforced and administered, the costs attached and reviews its financial impact on the public and private sectors.

The report also includes a summary description of the broader framework of disability related ant-discrimination/ human rights legislation in the United States in comparison with Canadian constitutional and human rights law.

The report does not make any pretense to be a conclusive study of the effectiveness of the ADA. Within the parameters of the contract, we have attempted to provide a broad overview of the ADA using a range of material. We have tried to be objective in our analysis, leaving the reader to draw their own conclusions about the ADA based on how they wish to use the information. Some of the information gaps are simply because there has been no systematic impact study - this, we have been told, is both by omission and by commission. Thus we can only provide the information available with both its strengths and weaknesses.

Data Sources

A variety of data sources and research strategies were used for this research. These include a review of case law, a literature search, a search of relevant information on the Internet, and interviews.

Review of Case Law

For federal court decisions pertaining to Title I, West's Federal Practices Digest, 4th edition from 1992 to date (approximately 50 volumes), was used to find cases that dealt with the interpretation of undue hardship under the ADA (searched under the Civil Rights Section, key 107 for discrimination based on handicap and key 173 for discrimination in employment based on handicap). A select sample of cases were examined that stood for various propositions put forward by the court regarding undue hardship and/or reasonable accommodation. These cases were shepardized using Shepard's Federal Citations and related cases were examined.

For public cases involving public or government employers, enforcement information disseminated by the Department of Justice was consulted (Enforcing the ADA: A Status Report, from 1992 to present) . In particular, cases referred to under Title I were searched to see if they had resulted in a court decision.

Cases reported in the section of this report on Title II were initially retrieved from secondary sources, Shepardized, and selectively reviewed for decisions that followed or explained the original cases. As well, a number of the cases discussed in relation to Title II were only found in the Enforcement Update of the Department of Justice.

Literature search

A literature search under Legaltrac/Infotrac was conducted using the search terms Americans with Disabilities, which yielded approximately 1,000 retrievals. The search terms Americans with Disabilities AND Undue Hardship OR Reasonable Accommodation yielded thirteen retrievals. The article summaries provided by the search itself were reviewed to determine relevancy. A number of articles (listed in the bibliography) were retrieved, reviewed, and incorporated into the report. An Legaltrac/Infortrac search was also conducted for literature relating to Title II and the Americans with Disabilities Act. Not all articles found were available, and some were ruled out based on their summaries.

A number of other databases and periodical indices were consulted, including:

Index to Legal Periodicals
PAIS (Public Affairs)
PsycINFO (Psychology)
sociofile (Sociology; annotated)
Social Sciences Index
Wilson Business Abstracts (annotated)
ERIC (Education)
Applied Science & Technology Index
ABI/Inform (Business and Management)

Information was searched under the subject or title name: Americans with Disabilities Act-1990. Other key word identifiers used separately or in combination with one another included: ADA; people with disabilities; handicap; handicapped; education; transportation; employment; reasonable accommodation; undue hardship; discrimination; civil rights; accessibility; cost; rehabilitation; employment; attitudes; human rights; and U.S. Legislation - 1990.

On the basis of the search results, approximately one-hundred and fifty articles were examined for their relevancy. These are included in the bibliography.
Web Sites
Several sites were visited on the Internet. These sites included national resource centres and information databanks of the US federal government:

ADA Document Centre
CODI - Cornucopia of Disability Information
Job Accommodation Network
NARIC - National Rehabilitation Information Center
President's Committee on Employment of People with Disabilities
US Bureau of Census
US Department of Justice
US Department of Labour
U.S. Government Accounting Office
National Federation of Independent Business
National Institute for Disability Research and Rehabilitation
USA Today
Sites of individual researchers / analysts

Interviews

Approximately thirty individuals who are knowledgeable about the ADA were interviewed, including representatives from the National Council on Disability, the President's Council on Employment of People with Disabilities, the Department of Justice, the Equal Employment Opportunity Commission, the National Institute on Disability and Rehabilitation Research, the Job Accommodation Network, the National Organization on Disability, the Coalition of Disability Organizations, the Social Security Administration, the Disability Rights Education and Defense Fund, as well as independent scholars and private consultants.

The study concludes with some general observations about the ADA and the findings of this study. The ADA is an important piece of legislation in the United States and warrants the attention that it has received from researchers and advocates in other countries. As Burgdorf has pointed out, however, non-discrimination is an ongoing, rather than a fixed, concept that may change over time. Inevitably any study of the impact of a piece of legislation such as the ADA on the elimination of discrimination has to take into account that reality.
The Administration, Cost And Enforcement of The ADA

1. An overview of ADA administration

Responsibility for the administration of the ADA is dispersed among several federal departments and agencies. The Equal Employment Opportunity Commission (EEOC) is responsible for the administration of Title I of the ADA, pertaining to employment discrimination in the private sector. The Department of Justice is responsible for employment in state and local government under Title I. Line departments are responsible for administration, in their respective areas of competence, of Title II and III of the ADA pertaining to local and state government and commercial and public accommodation. The line departments are: Agriculture, Education, Health and Human Services, Housing and Urban Development, Interior Department, Labour and Transportation. The Department of Justice is responsible for any residual matters under Title II not covered by these departments. The Department of Justice is also responsible for administration of Title III issues of accessibility to public accommodations.

The ADA does not cover the executive branch of the federal government, which continues instead to be covered by Title V of the Rehabilitation Act of 1973 -- a model for the requirements of the ADA. The ADA, however, does cover Congress and other entities in the legislative branch. Each federal agency maintains its own body responsible for employment discrimination; federal employees can complain to these bodies. There is a right of appeal to the EEOC if employees are not satisfied.

In addition, there are a number of independent and semi-independent agencies funded to provide services of various kinds related to the ADA. For example, The President's Committee on Employment of People with Disabilities runs the Job Accommodation Network (JAN), which is the main service providing technical assistance to employers or others seeking technical information on accommodating persons with disabilities in their workplaces. Funding for JAN has been provided in part through the EEOC. Within the Department of Education, the National Institute on Disability and Rehabilitation Research (NIDRR) funds ten regional Disability and Business Technical Assistance Centers as well as other regionally based activities.

The functions of the responsible departments and agencies are to promote the objectives of the ADA through various educational and other means and to administer a complaints resolution system. In educational outreach, one of the most significant efforts under the ADA has been making 'technical assistance' widely available. 'Technical assistance' is advice on how to accommodate the needs of persons with disabilities.

The other major function of the administering bodies is the resolution of complaints. The complaint resolution system is not simply a litigation service: it runs the gamut from primary assessment of incoming complaints to mediation and finally to legal action. All the departments and agencies focus first on encouraging voluntary compliance, then on resolving complaints through mediation and only resort to litigation when everything else fails. The Justice Department, for example, prides itself on having "fostered a high degree of voluntary compliance with a minimum of costly litigation" which success they attribute to their "educational outreach
efforts. "

In the US system, individuals always maintain the right to take private action on their own. They may sometimes be supported in doing so under the ADA by publicly funded legal centres (funded by Health and Human Services) and privately funded non-profit disability rights organizations (e.g., Disability Rights Educating and Defence Fund, Inc.). This is an important factor in understanding the administration of the ADA, as having the alternative of private litigation available allows the enforcing agencies to be more selective in choosing which cases they will litigate and in tolerating a backlog.

The Department of Justice is designated as the lead Department for the ADA. According to officials interviewed for this research, there is a regular co-ordinating function for educational outreach and technical assistance efforts across all responsible departments and agencies. However, there is otherwise very little or no overall coordination. There are no regular meetings of lead agencies for the purposes of general oversight of the implementation of the ADA and assessment of whether it is meeting its objectives. There is also no single individual who would identify her or himself or be seen by others as responsible for monitoring the implementation of the ADA in all its aspects.

Moreover there is no capacity to move funds from one agency administering the ADA to another if there is an imbalance of funds and demands. For example, it would not be possible to move funds from Justice to the EEOC if the backlog of employment charges was growing more rapidly than the backlog of complaints under Titles II and III.

Each administrative unit is also responsible for developing its own regulations under its sections of the ADA. These regulations are vetted by the Department of Justice, however it is unclear whether the Justice mandate is to vett for anything other than proper legal form, rather than substance.

From a Canadian perspective this dispersed model of administration may appear very unusual, but it is not so from a US perspective. This difference stems from the clear separation of executive and legislative branches in the US. The job of the executive branch is to administer the Act, taking its directions from the statute and its legal interpretation. In Canada, the executive branch would be much more closely involved with the legislative responsibility and would see a similar Act not as a series of directives to implement, but as a set of objectives being pursued through combined statutory and administrative mechanisms. In Canadian public administration there is much more stress on executive direction and less reliance on law.

Canadians may see US public administration as lacking in executive leadership, while Americans may see our public administration as too much at the whim of the Cabinet and too little based on written laws, with rights of appeal. Due to these differences between the Parliamentary and US systems of government, it is difficult to compare mechanisms for public administration in the two countries.

2. Cost of Administration

One of the consequences of the dispersed administration of the ADA is that there is no data on administrative resources employed to implement the ADA. There has not been any attempt to collect data from all administering departments and agencies, nor does this seem to be a question of much interest to officials in the US. This is mainly because administrative cost is regarded as only a tiny fraction of the total potential costs of the ADA. Aside from its education and outreach functions, the ADA is essentially a regulatory mechanism and like most regulatory legislation, the major costs are external to the administration of the Act itself.

Within the individual departments and agencies responsible for the ADA, no separate accounting is kept of ADA-related costs, so even a detailed review of the budgets of each agency would likely not be too helpful. However, from interviews with officials conducted for this research 'ballpark' resources were identified for implementing the ADA in the Department of Justice. Justice has approximately 100 staff years involved primarily in ADA related activities, including about 25 lawyers. Total costs in the Department of Justice are roughly $10 million annually, including $2 to $3 million in grants to community agencies and costs of technical assistance. In addition, there are costs of regular Justice functions used partly for the ADA that are not reflected in this estimate. For example, the US Attorney's local offices will be used for ADA enforcement as well as their other duties and there is no apportionment of the costs available.

In another interview, one official estimated that the total amount available for public education and related types of activities for the ADA was about $15 million annually for the whole US.

The EEOC has never been given any additional funding for the ADA and has absorbed the workload (about 20% of its cases) within its total allotment. Costs of the ADA are not separated out by the EEOC in its budget.

As a result it is difficult to even guess at the total administrative costs of the ADA. They are almost certainly much less than $100 million annually and probably less than $50 million. For the US, these are relatively low administrative costs, as would be anticipated of an Act of this kind. However, there are some signs of significant underfunding. In all areas of the ADA there is a backlog of cases that have not been resolved. At present, for example, EEOC has a backlog of about 16,000 ADA charges to deal with (EEOC Statistical Report: FY 1992-3rdQ 1996). As discussed below, these were substantially reduced through administrative measures, but still represent a significant problem.

The Department of Justice does not provide quantitative data on the number of complaints it is investigating nor its backlog. In the last few Presidential Budget submissions to Congress, additional funding was requested for the Department of Justice to facilitate its handling of complaints under the ADA. These requests were not granted by Congress and the final Budgets did not include additional funds for this purpose for Justice.

In sum, it is not possible to obtain an accurate estimate of the administrative costs of the ADA, although there are signs that the administration of the ADA may be underfunded at this time.

3. Private costs

If there are going to be any real costs in the ADA these will be the costs to businesses, governments and others in complying with the ADA requirements. Unfortunately, as in many areas of the ADA, there are few reliable data available.

In its annual report for the period ending September 30, 1996, the JAN provided the following breakdown of costs for 646 employers who had used its services and had responded to a question concerning costs of accommodation in its survey of users:

Accommodation costs reported by businesses that used JAN
Percentage

no cost
20%

between $1 and $500
51%

between $501 and $1,000
11%

between $1,001 and $2,000
6%

between $2,001 and $5,000
8%

greater than $5,000
4%

The average cost of accommodation reported by JAN since the ADA was passed has been running around $1,000 while the median cost has been about $200-$225. These are very low costs and have been a consistent feature of the Title 1 implementation of the ADA. Anecdotal reports from JAN include many instances where a very inexpensive and practical solution was found. For example, one case reported is that of a production worker who had limited motor skill ability and could not use the tweezers and magnifying glass required to perform his job, because he had difficulty holding the tweezers. The solution was to buy a big pair of tweezers for a total cost of $5.

Aside from the JAN, a valuable source of information are detailed studies done of accommodations at Sears. Sears is a large employer in the US with about 300,000 employees of whom about 20,000 are estimated to have physical or mental disabilities. Sears has a commitment not only to meet all the ADA requirements, but to transcend them. As part of the Annenberg Washington Program, Professor Peter Blanck undertook the third in a series of reports on Sears ADA implementation. The 1996 Sears Report showed a trend similar, or even lower, than that reported by the JAN. At Sears the average cost of providing workplace accommodation was $45, with most problems being resolved with no cost at all.

There are also cost savings to employers when an employment issue is successfully resolved. These savings can include severance or other costs that would otherwise have to be paid upon dismissal, if there had been no accommodation, recruiting new staff, training a new staff and other costs. These add up to a quite substantial amount. In the JAN survey, the following estimates of benefits were provided by 382 firms responding to the question "Approximately how much money did the company save because of the benefits [implementing an accommodation plan] you indicated?":

Benefits Dollars
Percentage

no value
4%

between $1 and $2,500
22%

between $2,501 and $5,000
15%

between $5,001 and $7,500
6%

between $7,501 and $10,000
9%

between $10,001 and $15,000
9%

between $15,001 and $20,000
8%

between $20,001 and $50,000
20%

between $50,001 and $100,000
5%

greater than $100,000
2%

Among the firms who answered this question since the passage of the ADA, the average saving was estimated as approximately $33,000 and the median saving as form $5,000 to $10,000. The Sears report, which is more detailed and does not rely simply upon survey answers, found similar results. These findings imply that spending on accommodation is a high return investment.

It is also noteworthy that extensive use is made of all the educational outreach and technical assistance programs under the ADA, including, for example, prior approval of building plans to ensure that accessibility standards are met. There are doubtless substantial positive economic spin-offs as a consequence of improving design, allowing greater access to clients and customers and avoiding expensive retrofits. The real economic story of the ADA is likely in these voluntary activities, but it is difficult or impossible to quantify them.

An additional cost to the private sector are the settlements consequent upon a successful charge either in litigation or through mediation. According to the EEOC, a total of about $100 million has been paid out in 'benefits' under Title I since the ADA was enacted. It is not clear how much was paid as damages and how much as compensation; however the total is not large for the whole US over a four year period.

Unfortunately, data are unavailable regarding costs of compliance for Titles II and III. The research was also unable to locate any academic studies of the costs of compliance with Titles II and III.

4. Enforcement

The ADA is based on a civil rights model, so that it relies mainly upon the resolution of individual complaints as an enforcement measure. The only significant exceptions to this appear to be:

I. compliance audits of building plans, which can and usually are requested in advance of construction as it is obviously in everyone's interest to ensure that a building meets the ADA requirements before it is built; and
ii. the Department of Justice undertakes occasional reviews of a whole national service, as is currently planned for all 911 numbers across the US.
However, there do not seem to be any plans for a more systematic approach to compliance audits (for example of state and local governments or of major employers) as a means of enforcement. The main means of enforcement will therefore remain response to individual cases.

As noted above, there is a backlog of cases in both the major enforcement bodies, although data on the extent of the backlog in the Department of Justice is not available. EEOC had a substantial backlog problem that was reduced by introducing a category of low priority claims. One factor to consider in any system based on individual reviews of complaints is that the rate of complaints being registered is likely sensitive to the expectation that the complaint will be dealt with expeditiously. In other words, if the current backlog were cleared up through increased resources for administration and enforcement, it could be that the number of new cases would just accelerate, creating a new backlog. Thus, the number of complaints being filed, the rate at which they are resolved and the administrative resources available for their resolution, are not independent variables.

The cumulative total of claims for EEOC is as follows:

EEOC ADA Charges
Cumulative total
for ADA to 6/30/96

Receipts
68,203

Resolutions
Percent of total resolutions

settlements
2,562
4.9%
benefits paid to charging party

withdrawal w/benefits
3,722
7.2%
charge is withdrawn upon receipt of benefits

administrative closure
21,089
40.2%
closure for admin reason - e.g. no jurisdiction

no reasonable cause
23,730
45.2%
EEOC determination that discrimination did not occur

reasonable cause
1,295
2.5%
447 settled and conciliated, 848 not successfully conciliated - referred for possible litigation

Total resolutions
52,448
100%

Source: (EEOC, Cumulative Charge Data for the July 1992 through June 1996 Reporting Period, mimeo)

No statistics at all are available for the other Titles of the ADA. It is noteworthy, however, that relatively few cases have ended up in court, as most are settled before they get to litigation. Only about 650 cases went to litigation under all titles in the first five years of the ADA.

Finally, a qualitative comment on the enforcement provisions of the ADA and its administration is that the use of line departments as enforcement agencies for their areas of competence raises self-evident conflict of interest problems. For example, US disability advocacy groups have raised questions about Transport regulations under the ADA.
Title I

Impact of the ADA's Title I provisions

1. Description of Title I provisions

The Title I provisions of the ADA apply to private employers, State and local governments, employment agencies and labour unions. While the Act was introduced in 1990, employers with 25 or more workers fell within the scope of the Act in July 1992 following a two-year phase-in period. Employers with 15 or more employees fell within the scope of the Act beginning in July 1994.

The ADA is an anti-discrimination law. It is not an affirmative action law and does not require employers to hire persons with disabilities (i.e., no hiring targets or quotas).

As an anti-discrimination law the ADA prohibits discrimination in all employment practices. This includes job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions and privileges of employment. It covers recruitment, advertising, tenure, layoff, leave, fringe benefits and all other employment-related activities. The ADA's protections extend to individuals in an "employment relationship" with an employer, not solely employees. For example, a retired individual would be protected under the Act in the event that their previous employer's alteration of their retirement benefits had a discriminatory effect.

"Qualified individuals with disabilities" are protected from discrimination under the Act. A person is considered qualified who meets skill, experience, education and other requirements of a job position that he or she holds or seeks. The person must also be able to perform the "essential functions" of the job, with or without reasonable accommodations. An employer can reach a determination that an individual cannot perform essential job functions after giving consideration to whether the person could perform the functions with a reasonable accommodation.

The ADA itself has no clear definition of "reasonable accommodation" but provides a non-exhaustive list of facility, job task and other modifications, leaving it to the courts to work out a more precise working definition on a case-by-case basis. The ADA requires that consideration be given to the nature and cost of the accommodations needed, the financial resources and number of persons employed by a covered entity, the impact of an accommodation, and a range of other factors in determining whether an accommodation would create "undue hardship" and thus be unreasonable.

A person is considered to have a disability for the purposes of the ADA if they have a substantial impairment that limits one or more major life activities, if they have a record of such an impairment, or if they are regarded as having such an impairment. A federal district court has held that the plaintiff has the burden of demonstrating that he or she is "disabled in some more general sense transcending his specific job, that his limitations substantially impaired a major life activity..." That is, it is not enough for an individual to show that he or she is limited at work only, or only in one particular job, in order to be protected by the ADA.

To date U.S. courts have ruled that the ADA protects individuals with various visual and hearing impairments, cancer, HIV/Aids, seizure disorders, mental illness, developmental and learning disabilities. The courts have ruled against pregnancy as a disability, and have declined to consider several cases involving drug and alcohol use as disability-related. Several obesity cases are pending. The ADA specifically excludes certain conditions and statuses from the definition of "disability" (homosexuality, bisexuality, compulsive gambling, kleptomania or pyromania, gender identity disorders, and psychoactive substance disorders resulting from illegal drug use - Sec. 511).

The ADA provides protection against retaliation where individuals oppose the discriminatory actions or practices which the law prohibits. The Act also prohibits harassment against persons with disabilities.

As well, the ADA entitles protected individuals to certain "auxiliary aids and services" that would enable them to participate in jobs or work training program activities to the same extent as others.

Section 506 of the ADA requires that the federal agencies responsible for implementing the Act develop plans to assist entities covered under the Act to understand their responsibilities. As a component of their implementation plans, the federal agencies are to provide technical assistance to the individuals and institutions that have rights and duties under the Act. Such assistance includes technical manuals and may also include, at the discretion of the responsible authority, contracts and grants.

2. Assessing Impacts

a) Employment

Various measures can be used to track the impact of the ADA on increasing the employment of persons with disabilities, including census data and similar statistical sources, public survey polls, research reports, informational products provided by agencies monitoring impacts, media reports and interview data.

A recent National Town Meeting tour conducted by the National Council on Disability (NCD) found that certain improvements had been achieved in terms of employer practices as a result of the ADA. For example, the NCD reported that employers are re-thinking what constitutes the essential elements of particular jobs. Those participating in the town hall meetings indicated that job qualifications and the job-application process are now fairer, reducing the overt prejudices persons with disabilities have faced in the job application process and providing persons with disabilities clear legal recourse where they suspect discriminating had been a factor in hiring or job-retention/promotion decisions. As well, participants in the town hall meetings indicated that the job market is now more open due to the accommodations that are being made available, in particular assistive devices, modifications of work spaces, more flexible work schedules and personal services available in the workplace ( e.g., interpreters, personal assistants, job coaches).

Shoemaker et al found in their 1992 survey of 248 corporate executives in Michigan that 41.5 per cent of the corporations studied had fully-implemented early return to work policies to increase the job retention of workers who become disabled. Corporations surveyed ranged between 250 and 649 employers. The analysis indicated that corporate leaders' beliefs about and support for early return to work may be the best predictor of whether corporations put such policies in place. The proportion of respondents supporting early return to work policy represents a significant increase over the 8 per cent identified by Schwartz in a national study six years earlier, before the ADA came into effect.

According to other sources, the rates of employment do not appear to have increased significantly since the inception of the ADA. For instance polls conducted by Lou Harris and Associates in 1986 and 1994 indicate that two-thirds of working age persons with disabilities were not working in those years, most of whom wanted to work.

Similarly, the US Bureau of the Census reported that only 27.8 per cent of working age persons with work-related disabilities were employed in 1996, with only 17.7 per cent working full-time. In contrast, 76.7 per cent of working age Americans without a work disability were employed in 1996, with 62.6 per cent working full-time. The general employment figure for persons with work disabilities remained unchanged from 1995 to 1996. However, the per cent working full-time dropped from 18.4 per cent, or nearly a percentage point, from 1995 to 1996.

Using a broader approach to measuring disability, the US Census Bureau reported slight gains in employment from 1991 to 1994 among persons aged 21 to 64 whose disabilities were not exclusively work-related. In 1991, 52 per cent were employed compared with 52.3 per cent three years later. Persons with severe levels of disability fared slightly better than others, rising from 23.3 to 26.1 per cent over those years, although the overall level of employment remained dramatically below that of persons without disabilities, which increased from 80.5 to 82.1 per cent.

Braddock and Bahelder have found that women and visible minorities with disabilities, African Americans in particular, continue to face additional discrimination and employment challenges compared with white males with disabilities. The National Council on Disability has found that 31 per cent or fewer of Hispanics with disabilities are working and that 70 per cent drop out of high school by their sophomore year.

Blanck found that, from 1990 to 1994, most of the 4,000 individuals with intellectual disabilities he studied showed no change in terms of their employment status. Those most likely to make the transition from non-integrated (i.e., no employment or sheltered work) to more integrated employment (e.g., supported or competitive employment) were individuals with higher capabilities and qualifications (e.g., better job skills and health status). The vast majority of individuals in non-integrated settings studied by Blanck in 1990 remained in those settings in 1994, a finding he refers to as the "black hole effect". There was also considerable regression in the research sample from integrated to non-integrated employment from 1990 to 1994.
Time magazine recently reported that the number of small businesses that have hired individuals with disabilities slipped from 54 per cent to 48 per cent since the ADA came into effect. Time quoted a legislative representative for the National Federation of Independent Business, a small business lobby, as saying, "They're [i.e., employers] fearful that if it doesn't work out they can't fire them".

Where employers are making efforts to accommodate persons with disabilities, the focus of their efforts seems to be directed at current workers instead of new job-applicants. For instance, of all the accommodation cases handled by the Job Accommodation Network (JAN) in the first quarter of 1996, 50 per cent concerned measures to retain current employees and 25 per cent revolved around improvements in the workplace for current employees. Only 5 per cent of the requests concerned the hiring of new workers.

Similarly, the (EEOC) has reported that, as of 1996 year-end, nearly 73,000 complaints were filed regarding employment discrimination under the ADA since 1992. More than half of the complaints filed (51.9 %) revolved around discharge from employment based on disability, 28.1% around failure to provide reasonable accommodations and 12 % around harassment. Fewer than ten per cent of total accumulated complaints (9.8 %) concerned hiring decisions. Using EEOC complaint data as an indicator, the focus of activity under the ADA has centred less on bringing individuals into the labour force than on retaining or promoting those who already have jobs.

The data sources that can be drawn upon to measure the impact of Title I on the employment of persons with disabilities are diverse and eclectic. This problem together with the fact that the ADA is still a relatively new law make it difficult to arrive at definitive conclusions about the impact of Title I to date. It does appear, however, that Title I has been put to use mainly by individuals who are already attached to the labour market and remains to be more widely used by persons seeking access to employment for the first time.

b) Other impacts

Aside from the ADA's changes in employment levels and in employer hiring, retention and job accommodation practices, there are also ways in which the ADA has shifted attitudes and awareness among the general public and among employers. The technical assistance rendered as a result of the Act, as well as employer efforts, have also led to a growing body of information about job accommodations.

Public interest and support

Requests for information about the ADA are increasing. JAN fielded 12,210 calls on its 1-800 line for information about the employment of persons with disabilities in 1992/93. In 1994/95 JAN fielded 79,860 such requests, following successive year-over- year increases in the demand for information. This time frame coincided with the phase-in period for the ADA's Title I employment provisions. Most of the calls to JAN in 1995 were from private entities (61%), 18% from public entities and 21% from persons with disabilities. Most sought-after by all three groups was information about the ADA.

Internet access to JAN is also growing. JAN had 178,663 "hits" in the first quarter of 1996, an increase over 110,458 in the previous quarter. According to an interview respondent for this research, the Department of Justice's Internet site is fielding a considerable volume of electronic traffic.

Employer interest and support

Employer interest in and knowledge about the ADA has been high. According to a Mason-Dixon Poll of January 1995, 94 per cent of executives from 309 randomly selected Florida Chamber of Commerce members said their businesses were somewhat or very familiar with ADA. JAN reported an 11% year-over-year increase in the number of employer requests for accommodation information (i.e., accommodation information cases) from October 1, 1993 through September 30, 1994. In terms of total volume the figure represents an increase from 19,825 cases in 1993 to 21,918 in 1994.

Employers have expressed concerns about the ADA, particularly in the small business community. While few have expressed concern about the ADA's overall objective of eliminating discrimination against persons with disabilities, a vocal business lobby representing the United States Chamber of Commerce and National Small Business United brought to Congress' attention its apprehensions about the vagueness of the new Act's "undue hardship" and "reasonable accommodation" provisions while the bill was being drafted . Of particular issue to business were the potential cost of the ADA's accommodation provisions to employers and the lack of precise tools for determining employer obligations which, in lieu of court action, would enable employers to proactively determine the extent of their financial obligations to accommodate persons with disabilities.

More recent polls suggest that employer support for the ADA is relatively strong, at least among larger companies. The Global Strategy Group, Inc. Found in its survey of October 1995 that, depending on the region of the US, between 47 and 59 per cent of human resource managers in Fortune 5000 companies believe the ADA has had a positive impact on their corporations. According to a University of Michigan-Dearborn Study of 1994, 45 per cent of human resource professionals and general managers in companies with an average of 843 employees considered that hiring people with disabilities resulted in productivity gains for their companies. Some 72 per cent of Florida Chamber of Commerce members in the January 1995 Mason-Dixon Poll felt the same way. Louis Harris and Associates, Inc. found in their national survey of senior corporate executives in July 1995 that 70 per cent supported the ADA and did not favour weakening it in any way. Some 89 per cent said they and their employees supported policies to increase the representation of people with disabilities in their companies, with 75 per cent of managers indicating they are likely to make greater efforts to hire people with disabilities in the next three years.

The National Council on Disability recently reported that many individuals with disabilities have successfully negotiated with private and public entities for ADA compliance and that very few have found it necessary to file lawsuits. The NCD maintains that compliance with the ADA has on the whole tended to be voluntary.

As well, JAN has reported that 38% of employers who have requested information about accommodations implemented the accommodations within two to three months after communicating with JAN. Another 30% of the decisions are in progress.

Blanck reports that some employers have voluntarily complied beyond the letter of the ADA. He details Sears, Roebuck and Company's comprehensive approach to supporting the employment of some 20,000 employees with disabilities within the corporation. With a long track record of supporting the employment of people with disabilities that pre-dated the ADA by more than forty years, the company has, since the introduction of the ADA, formed a senior-level Corporate Council on Disability Issues, made its facilities more accessible, has linked with other corporations to share information and identify resources needed for ADA compliance, initiated an Early Return-to-Work Program, has recruited people with disabilities into its National Management Training Program through its Workforce Diversity Initiatives, engages in various communication strategies to sensitize managers to employment issues affecting persons with disabilities, and has partnered with voluntary organizations' supported employment initiatives in various parts of the country.

Other data sources raise questions about the extent of employer support for the spirit of the ADA. The large volume of complaints filed with the EEOC annually since Title I came into effect suggests that many persons with disabilities continue to face problems that they consider to be discrimination-related.

Voluntary compliance by employers may not be prime reason why litigation has not been more widely used. For instance, the EEOC has determined that almost half of all Title I complaints it has fielded since 1990 have no reasonable cause (i.e., no evidence of discrimination). The EEOC would not consider such complaints eligible for potential litigation unless the claimant successfully appealed the EEOC finding. Alternatively, the complainant could bring private court action, but this option is a potentially costly move. Another forty per cent of resolved complaints are closed for administrative reasons. Most of the few remaining complaints (6.9 % of all resolved cases) are withdrawn after the plaintiff receives a desired benefit from the responding party. Of the 2.6 % of all resolved complaints the EEOC considers to be based on reasonable cause, roughly one-third are resolved successfully through conciliation. This leaves 1.7 % of all claims as meritorious in the eyes of the EEOC but unable to be resolved through conciliation. The EEOC may then review such claims for litigation consideration. In other words, very few complaints arrive at the point of being considered by the EEOC as eligible for court action. One interview respondent for this research pointed out that to date the EEOC has taken only 163 Title I complaints to court.

Knowledge about job accommodations

Organizations such as JAN, the Disability and Technical Assistance Centres funded by the Department of Education's National Institute on Disability and Rehabilitation Research, as well as consulting firms and employers who have made efforts to accommodate persons with disabilities in the workplace, have developed a growing body of information about the job accommodation process. In many cases, effective "low tech" solutions have been identified that have made it possible for individuals to gain access to and remain in employment.

Costs and benefits of accommodations

The research literature makes scant reference to the costs and benefits of job accommodations made available under the ADA. However, drawing from JAN statistics the President's Council on Employment of People with Disabilities has reported that most accommodations implemented on the basis of JAN recommendations (69 per cent) cost $500 or less. Companies have reported through JAN survey questionnaires an average return of $28.69 in benefits for every dollar invested in making a job accommodation.

In an in-depth study of Sears, Roebuck and Co. Blanck found that the average cost per accommodation in that corporation from 1978 to 1992 was $121, with 69 per cent of employees with disabilities incurring no accommodation costs for the company. In a follow-up study the average cost of accommodations from 1993 to 1995 was $45.20 with 72 per cent of all accommodations made during those years involving no costs.

Similarly, according to the July 1995 Harris poll 80 per cent of respondents felt the ADA had increased the costs of accommodating people with disabilities "a little or not at all". Only 7 per cent of respondents indicated that accommodation costs had increased "a lot".

Markets and labour

According to the President's Council on Employment of People with Disabilities, employers have reported unintended benefits under the ADA in the form of expanded markets and employee pools.

3. Issues

Researchers and analysts have pointed to a number of issues that have arisen in implementing the ADA and in securing public support.

a) Definitional issues

The absence of a clear definition of disability in the Act is problematic not only from the point of view of enforcement, but also from the point of view of measurement and tracking progress. The National Institute on Disability and Rehabilitation Research pointed out that, "There is no OK accepted definition of disability" but instead a wide variety of approaches to measurement which have given rise to differing prevalence estimates, confusion and even misuse of information.

Difficulties have arisen because of lack of precision about the definitions of reasonable accommodation and undue hardship under the ADA. Epstein argues that Congress incorrectly assumed that the case law which had developed under the Rehabilitation Act, and which was supposed to serve as basis for rulings under the ADA, was uniform and coherent. Instead, Epstein maintains, the rulings were inconsistent and in some cases contradictory. The concept of financial undue hardship had not been adequately addressed in law when the ADA was drafted because experience with accommodations under the Rehabilitation Act had not taken into account the impact of accommodation costs on private employers who are not beneficiaries of government funds.

For some classes of persons the differential impact of what is meant by reasonable accommodations can be especially problematic. The National Council on Disability, for instance, has drawn attention to the fact that many accommodations at work and school might be useful and reasonable for persons with cognitive impairments. However, unlike some accommodations for persons with physical disabilities that can be more readily quantified in terms of measurement or hardware, many of the accommodations needed by persons with intellectual disabilities are more abstract and have yet to be quantified. Accordingly, persons with such needs may be least well-served under the law.

Also, in light of the effects of cognitive impairment on the ability to think, perceive, act or react, fundamental questions remain about whether and to what extent any given individual is "otherwise qualified" to perform a job.

b) Importance of data

Organizations such as the National Council on Disability have pointed to the knowledge gap about disability that has arisen on account not only of varying approaches to measuring disability, but as a result of inappropriate, inadequate and infrequent statistical surveys. It pointed out that little progress has been made since the ADA was introduced in terms of data collection, a factor that continues to hamper policy analysis. The ADA makes no provision to ensure that such data are collected.

c) Communication and outreach issues

Persisting lack of awareness and limited outreach
Despite technical assistance provided by the Federal Government and other means of communicating about the ADA, a large share of the disabled community is unaware of the law. Little outreach has been provided to small business and to people of colour with disabilities.

Negative press coverage

While there is some evidence of general public interest and support for the ADA, press coverage has tended not to be favourable. As the National Council on Disability pointed out, the media have often focused on frivolous ADA cases, drawing attention to the ADA as an example of government over regulation. Persons with disabilities have often been portrayed as malingerers using the ADA to avoid responsibility. As Burke points out, such portrayals are especially problematic in the U.S., a country which is much more apprehensive than other modern nations about persons in need and the value of social security programs.

d) Perceived costs

Persisting assumptions about accommodation costs

Despite emerging evidence to the contrary, the view persists, particularly in the small business community, that the potential costs of accommodations will be too high for employers to bear. As Epstein points out, persons with severe levels of disability are less likely than others to be employed. The frequency and scope of accommodations needed to meet the needs of this segment of the population, and the associated costs, could well prove considerably higher than those associated with the present generation of persons with disabilities who are employed. Accordingly, current information about accommodations and costs may indeed be skewed.

Unfunded mandate of ADA

The ADA is an unfunded mandate in the sense that it prohibits discrimination on the one hand but makes no provision to provide the funding needed by employers. Employers may qualify for funding through programs such the Work Opportunity Tax Credit (WOTC), which provides a tax credit for employers who hire certain targeted low-income groups, including vocational rehabilitation referrals, qualified AFDC recipients, veterans, ex-felons, food stamp recipients, and summer youth employees. Employers may qualify for a tax credit of up to 35 percent of the first $6,000, or up to $2,100, in wages paid during the first 12 months for each new hire. As well, small businesses can receive a variety of other tax credits for the purposes of the ADA. Such funding may be adequate to cover physical accommodations, but are unlikely to address the costs involved in less straightforward accommodations, such as modifying work hours, eliminating certain functions from a job, and allowing prolonged absences due to illness.

While the ADA is an unfunded mandate, financial resources have been allocated within the federal agencies responsible for its implementation. However, according to several interview respondents for this research, the available resources have not been adequate to finance extensive litigation. Accordingly, the EEOC and other agencies have had to "pick and choose" on a discretionary and informal basis the cases they deem to be significant, with a view to achieving maximum impact through precedent-setting court rulings.

Instead of using its resources extensively for litigation, the EEOC has placed its emphasis on providing technical assistance as a means of resolving problems proactively. Interview respondents generally expressed the view that the assistance provided has been helpful and effective. They also indicated, however, that the available assistance has fallen short of meeting demand because of funding constraints.

Perceived costs to employers of litigation and damages

Under Title I, compensatory and punitive damages for plaintiffs can amount to $300,000, in addition to back pay and lawyers' fees.

An important disincentive for employers is the perceived cost of potential litigation and ensuing damages in the event that they interview or hire individuals with disabilities and those individuals file a complaint with the EEOC. The business community has articulated concerns about the high costs of learning about employer obligations under the ADA, the cumulative costs of making reasonable accommodations, the cost of defending against lawsuits without merit, and the costs involved in losing an ADA suit. On the one hand, some of these concerns may be misplaced; very few cases in the back-logged EEOC ever make it as far as court. On the other hand, some of the ADA awards have involved substantial sums of money and even a few thousand dollars in lawyer's fees can be problematic for small businesses operating on small profit margins.

As the experience in the U.S. labour force has mainly revolved around individuals who do not have extensive disabilities, it is reasonable to infer that the financial implications of the ADA in terms of court costs have not been fully tested.

e) Procedural backlog and delays

The Equal Employment Opportunity Commission and the Department of Justice are currently backlogged with cases of alleged discrimination under the ADA. Since Title I came into effect the EEOC has received nearly 73,000 ADA-related complaints, nearly 18,000 in 1996 alone. This has resulted in considerable procedural delays, which in turn weakens the incentive for employers to voluntarily comply with the spirit of the Act.

Despite requests for an infusion of new funding for ADA enforcement, both the Bush Republican and Clinton Democratic administrations have refused. Consequently, federal agencies have been unable to use their full authority to enforce the law. One interview respondent pointed out how, during the phase-in period for Title I, the EEOC underwent a 20 per cent increase in complaints overall but no additional funding. More recently its funding, like that of other federal agencies, was cut back due to fiscal restraint measures, leaving at issue how the EEOC is to effectively carry out its mandate.

g) Lack of policy coordination

The ADA targets one problem that hampers the employment of people with disabilities: discrimination. However, a range of other factors combine with discrimination to exacerbate the problem. Of itself the ADA makes no provision to address these problems. These problems span eligibility and benefits structures in the social security, publicly-funded health and private health insurance systems, the massive influx of welfare recipients to the labour market under US welfare reform and the associated increase in competition for entry-level jobs, as well as deeply entrenched problems in the transportation and education systems.

As well, the administration of the ADA is itself fragmented, presenting challenges to the coordination of efforts between departments to address the discrimination in employment which the Act targets.

A Summary of How Tribunals are Interpreting Undue Hardship Provisions under Title I of the ADA

This section of the report summarizes the way in which tribunals are interpreting the undue hardship defence under Title I of the Americans with Disabilities Act (the "ADA"). Due to its recent proclamation, and the limited number of cases decided under Title I, earlier cases decided under the Rehabilitation Act,29 U.S.C. § 794. (the "Rehabilitation Act"), which contains similar provisions to the ADA and has been used by the courts as an aid in interpreting the ADA, have also been reviewed.

This chapter will provide an overview of the legislative framework of Title I of the ADA, and the provisions and accompanying regulations regarding an employer's duty to accommodate an employee short of undue hardship. A review of the case law focuses on the following:

1) substantive and procedural issues that courts have grappled with in defining both "reasonable accommodation" and "undue hardship";
2) examples of the ways in which courts have interpreted "reasonable accommodation; and
3) examples of the ways in which courts have interpreted "undue hardship".

Lastly, problems that are apparent from the review of the caselaw, and that arise as a result not only of the wording of the ADA and its accompanying regulations, but also by its interpretation by the courts, are discussed.

1. The Legislative Framework of Title I of The ADA

a) Generally

The substantive provisions of the ADA are divided into various titles. Title I prohibits employment discrimination against individuals with disabilities by all employment agencies, labour organizations, joint labour-management committees and employers engaged in an industry affecting commerce against any "qualified individual with a disability" who does not pose a "direct threat" to the health or safety of others in the workplace. A person with a disability is "qualified" under Title I if the individual can perform the "essential functions" of a job, "with or without reasonable accommodation" Conversely, an individual poses a "direct threat" to the health or safety of others if the individual creates a "significant risk ... that cannot be eliminated by reasonable accommodation".

The definition of a qualified individual is borrowed from case law and regulations interpreting the Rehabilitation Act, and the drafters clearly intended that the ADA be construed in light of prior law decided under that Act. The ADA, however, departs from the Rehabilitation Act in four critical ways: 1) it explicitly allows qualification standards or criteria that are "job-related and consistent with business necessity, [where] such performance cannot be accomplished by reasonable accommodation.."; 2) it clarifies that a "qualification standard" may require that an individual not "pose a direct threat to the health or safety of other individuals in the workplace"; 3) it specifically mandates that reasonable accommodations be made by the employer; and 4) it allows for the possibility of unintentional discrimination.

Reasonable accommodation is not defined in the ADA. It is instead explained through a list of illustrative examples. Reasonable accommodations include "making existing facilities used by employees readily accessible to and usable by individuals with disabilities," and "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accommodations.." The list is not exhaustive, and is intended only to provide general guidance.

The employer's obligation to reasonably accommodate employees with disabilities and applicants only applies to modifications or accommodations that are job-related. A
job-related accommodation is one which "specifically assists the individual in performing the duties of a particular job". This includes an accommodation related to non-work facilities such as break rooms, cafeterias and health clubs. An employer, however, is not required to provide an accommodation of a strictly personal nature, or one which is helpful both on and off the job. Such listed accommodations include the provision of a prosthetic limb, a wheelchair or eyeglasses.

b) Undue Hardship Under Title I of The ADA

The ADA does not require an employer to make an accommodation if the accommodation "would impose an undue hardship on the operation of the business". Undue hardship is defined as an action requiring significant difficulty or expense". The legislative history indicates that Congress intended to define this term narrowly, stating that "undue hardship" refers to an action that is "unduly costly, extensive, substantial , disruptive, or that will fundamentally alter the nature of the program" It is important to note that Congress rejected the de minimus standard which U.S. courts have adopted in religious accommodation cases. Under that standard, an accommodation which requires the employer to bear more than a minimal cost creates an undue hardship. In comparison, under the ADA, an accommodation must require significant difficulty or expense on the part of the employer before it can be considered an undue hardship.

Four factors must be balanced in order to determine whether a particular accommodation poses an undue hardship on the employer: 1) the nature and cost of the accommodation; 2) the overall financial resources of the business, the number of employees, and the number, type, and location of its facilities; 3) the existence of a parent company; and 4) the type of business operation, including the structure and functions of its workforce, and the geographic, administrative or fiscal relationship between the facilities involved and the business as a whole.

Clearly, financial considerations are the most significant ones that will influence a finding of undue hardship. However, the foregoing four factors are not exclusive. Congress indicated that other factors could be considered, some clearly involving cost considerations (such as the availability of financial assistance or tax credits to help pay for an accommodation), and others not so clearly (such as the number of employees benefitting from the accommodation).

If evidence shows that an employer cannot provide the accommodation without undue hardship, the ADA requires that the employer provide such accommodation if the funding is available from another source, such as state funds or tax credits. The Senate Report states that if the individual is prepared to bear part of the cost, the employer must make the accommodation if the remaining cost is no longer an undue hardship.

2. The Case Law

a) General

In applying the ADA, courts have looked to the Rehabilitation Act for its interpretation of undue hardship. Unfortunately, cases decided prior to the enactment of the ADA demonstrate no uniformity by the courts in the interpretation of this concept, and many courts tended to blur the distinction between reasonable accommodation and undue hardship.

b) Reasonable Accommodation, Undue Hardship and Burdens of Proof

There are two related issues that courts are grappling with vis a vis the concepts of reasonable accommodation and undue hardship: one is procedural in nature and the other is substantive. The first issue is concerned with who bears the burden of proof in a discrimination claim under Title I of the ADA; and the second issue is that of determining the point at which reasonable accommodation ends and undue hardship begins. The inherent ambiguity of the ADA with regard to this second issue has resulted in severe criticism from legal critics and scholars, who feel that it will serve to increase litigation and costs for businesses and/or individuals with disabilities

Different approaches have been taken by the Courts of Appeal of the various Circuits to the procedural framework by which claims of disability discrimination will be heard. While courts generally agree that the employer bears the burden of proving the affirmative defence of undue hardship, there are differing approaches as to who bears the burden of showing that an accommodation is reasonable. One of these approaches was articulated by the Second Circuit Court of Appeals in Borowski v. Valley Central School District. The issue in this case was whether a teacher with disabilities, whose disabilities directly affected her capacity to perform her job, could insist that her employer provide a teacher's aide as a form of reasonable accommodation under Section 504 of the Rehabilitation Act.

The Court held that the burden of showing undue hardship is on the employer, because a) this was Congress's intent in passing ADA; and b) the employer has far greater access to information than the typical plaintiff, both about its own organization and, equally importantly, about the practices and structure of the industry as a whole.

In discussing the burden of proof and production, the Appeal Court stated that: 1) the plaintiff bears the burden of production and persuasion on the issue of whether she is otherwise qualified for the job in question. A plaintiff cannot be considered "otherwise qualified" unless she is able, with or without assistance, to perform the essential functions of the job in question. Thus, the plaintiff bears the burden of proving either that she can meet the requirements of the job without assistance, or that an accommodation exists that enables her to perform the job's essential functions.

The plaintiff bears only a burden of production as to the requirement that an accommodation be reasonable. An accommodation is reasonable only if its costs are not clearly disproportionate to the benefits it will produce. This burden, according to the court, is not a heavy one. It is enough for the plaintiff to point to the existence of a plausible accommodation with a cost that does not clearly exceed its benefits.

The burden then shifts to the defendant employer. The defendant's burden of persuading the fact finder that the plaintiff's proposed accommodation is unreasonable merges, in effect, with its burden of showing, as an affirmative defence, that the proposed accommodation would cause it to suffer an undue hardship. The court expressly states that, in practice, the burden of non-persuasion on the reasonableness of the accommodation and demonstrating that it imposes an undue hardship amount to the same thing.

Thus, the Second Circuit Court of Appeals treats reasonable accommodation and undue hardship as two sides Of the same coin. Further, it merely requires the plaintiff to identify a reasonable accommodation, rather than prove that such an accommodation is reasonable even in general terms.

In contrast, the District of Columbia Circuit Court of Appeals, while agreeing that the defence of undue hardship is one that the employer bears the burden of proving, makes much more of a distinction between undue hardship and reasonable accommodation. It views "undue hardship" as a concept more refined and rooted to the particulars of each separate case than the notion of "reasonable accommodation", which is more abstract and not as anchored to the particular facts. Like the Second Circuit, the Court agreed that a "reasonable accommodation" need only be identified by a plaintiff to shift the burden to the employer, who must prove that the proposed accommodation is an "undue hardship."

In Barth v. Gelb, the Court of Appeals stated that as a general matter, a reasonable accommodation is one employing a method of accommodation that is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff's preferred accommodation in the context of the particular agency's operations. The court noted that a grey area will arise where a proposed accommodation is so costly or of such a nature that it would impose an undue burden on the employer's operations. Thus, an accommodation would be both unreasonable and impose an undue burden "if it either imposes undue financial and administrative burdens on an agency or requires a fundamental alteration in the nature of its program." The case, brought under the Rehabilitation Act, involved an action by an insulin-dependent diabetic who applied for a job as a foreign service specialist who was denied waiver of the medical clearance requirement. The plaintiff sought as a reasonable accommodation a limitation of his assignments to posts at which adequate medical facilities were available. The defendant did not claim that the proposed accommodation was unreasonable in the abstract, but rather that it would result in undue hardship as a result of considerations peculiar to its operation, and the Court accepted this position.

A similar approach was taken by the Seventh Circuit Court of Appeals in Vande Zande v. State of Wis. Dept. of Admin. In this case, a state employee who was paraplegic brought an ADA action against her employer for failing to reasonably accommodate her disability by allowing her to work at home or installing a computer in her home so that she could avoid using sick leave. The Court articulated that the term "accommodation" requires the employer to consider making changes in its ordinary work rules, facilities, terms and conditions to enable an individual with a disability to work. However, it went on to state that unrelated, inefficacious change is not an accommodation within the meaning of the ADA. The Court further held that the financial condition of the employer is only one consideration in determining whether an accommodation which is otherwise reasonable would impose an undue hardship. With regard to the issue of costs and how it impacts on both the issue of reasonableness of accommodation and undue hardship, the court stated (at p. 543):

"So it seems that costs enter at two points in the analysis of claims to an accommodation to a disability. The employee must show that the accommodation is reasonable in the sense both of efficacious and of proportional to costs. Even if this prima facie showing is made, the employer has an opportunity to prove that upon more careful consideration the costs are excessive in relation either to the benefits of the accommodation or to the employer's financial survival or health ... One interpretation of "undue hardship" is that it permits an employer to escape liability if he can carry the burden of proving that a disability accommodation reasonable for a normal employer would break him.[citations omitted]"

In contrast to the foregoing approaches, the 6th Circuit Court of Appeals in Monette v. Electronic Data Systems Corp held that while the employer has the burden of persuasion on whether an accommodation would pose an undue hardship, the individual with a disability bears the initial burden of proposing an accommodation and of showing that it is objectively reasonable.

The court in Monette conceded that the interrelationship between the terms "reasonable" accommodation and "undue hardship" is complex:

"... In a case specific context, the terms are virtually mutually exclusive in the sense that "undue hardship" defines which accommodations an employer will be required to adopt. If an employer shows that a proposed accommodation imposes an undue hardship, then it would be "unreasonable" to require this employer to adopt that accommodation, regardless whether another employer, in a different factual context, may be required to adopt that same accommodation. More broadly, however, the terms can co-exist. In our view, determining whether a proposed accommodation is "reasonable" requires a factual determination of reasonableness (perhaps through a cost-benefit analysis or examination of the accommodations undertaken by other employers) untethered to the defendant employer's particularized situation. Once a determination is made that a proposed accommodation is, in a sense, generally "reasonable", the defendant employer then bears the burden of showing that the accommodation imposes an undue hardship upon it, given the employer's specific situation. Viewed in this way, the parties' respective burdens of persuasion become clear. The plaintiff bears the initial burden of showing that a "reasonable accommodation is possible. If the plaintiff does so, the defendant employer has an opportunity to persuade the fact finder that the proposed accommodation imposes an undue hardship."

Similarly, in Austin State Hospital v. Kitchen, a former employee sued a State hospital and state agency for disability discrimination. Although this was a case brought by the plaintiff under Texas' human rights legislation, the Texas Court of Appeals looked to analogous provisions and jurisprudence under the ADA and Rehabilitation Act to interpret the state legislation with regard to disability discrimination. The trial court's charge to the jury had collapsed into one question the issue of reasonable accommodation, on which the plaintiff bears the burden of proof, and the issue of undue hardship, on which the defendant bears the burden of proof. This was held to be an error by the Court of Appeals. In dealing with the "grey area" when a proposed accommodation is both unreasonable and unduly burdensome, the Court of Appeals suggested that the appropriate analysis may be to evaluate the reasonableness of the accommodation in terms of the plaintiff's ability to do the job, while the question of "undue hardship" is linked to the employer's financial and organizational ability to adopt the proposed modifications.

Thus, it can be seen that the various Circuits have taken somewhat differing approaches both to the burden of persuasion and production in cases wherein the issues of reasonable accommodation and undue hardship are central; and to whether or not reasonable accommodation and undue hardship are in fact separate concepts, or two sides of the same coin. Unfortunately, this has resulted in confusion for employers and employees alike in determining their respective rights and obligations under the ADA.

c) Cases Interpreting "Reasonable Accommodation"

As discussed above, the case law often blurs the line between where reasonable accommodation ends and undue hardship begins. Indeed, some courts commonly define what accommodations are reasonable in terms of whether they cause undue hardship. Thus, cases that focus on the concept of reasonable accommodation can be equally enlightening as to what types of accommodations cause undue hardship.

In Arneson v. Heckler, the court made it clear that employers are not required to hire another person to perform a job of a person with a disability. Courts have also consistently ruled that the reasonable accommodation requirement in the Rehabilitation Act does not require employers to create a new position for an employee with a disability. Further, employers are not required to eliminate essential job requirements in order to accommodate an employee with disability. Less clear, however, is the point at which the cost of an accommodation would impose an undue hardship.

In Burnett v. Western Resources, Inc., an employee working as a meter reader brought action against his employer for discrimination under the ADA based on his disability. Both sides brought motions for summary judgment. The United States District Court, Kansas, held that the employer had made reasonable accommodation of the employee's medical restrictions by offering him the choice of either remaining in the meter reader position after presenting medical evidence that he could perform essential functions of job, or reassignment to a position within his physical restrictions. In granting summary judgment for the defendant employer, the Court articulated that reasonable accommodation under the ADA does NOT require an employer to: I) modify the requirements of the meter reader position by reducing the number of hours employee was required to walk, where walking 4 hours was an essential requirement of the job, even for the easier routes; 2) provide rehabilitation in lieu of reassignment since only job-related adjustments or modifications which enable the individual to perform the duties of a particular job are required as reasonable accommodations; 3) provide modifications which would assist the individual throughout his or her daily activities, on and off the job; 4) eliminate essential functions of the job to reasonably accommodate an employee with a disability; 5) promote an employee with a disability; or 6) create a position or alter present business practices and relationships to give the employee the best accommodation or even the accommodation requested by the employee, so long as the accommodation made is reasonable.

The court in Barth v. Gelb held that generally, an employer is not required to accommodate a disability by allowing the employee with a disability to work alone, without supervision, at home; nor was it required to install a computer at her home so that the employee could avoid using up sick leave.

In Monette v. Electronic Data Systems Corp., the Court stated that although employers may be required under the ADA to transfer an employee with a disability to a vacant position for which he or she is qualified as a reasonable accommodation, the employer is under no duty to keep an employee on unpaid leave indefinitely until such position opens up, nor is an employer required to create a new position for an employee with a disability in order to reasonably accommodate that employee. The court rejected the employee's proposed accommodation whereby he would have been kept on unpaid medical leave indefinitely until another position opened up, as it was not a "reasonable" accommodation.

In Staron v. McDonald's Corporation, the plaintiffs sought a total ban of smoking in the defendant restaurants due to their allergy sensitivities. The case was dismissed on a motion for summary judgment, as the Court held that a total ban on smoking was not reasonable as a matter of law. In reversing the judgment and remanding for reconsideration in accordance with the principles articulated, the United States Court of Appeals, Second Circuit, stated that whether a modification is "reasonable" under the ADA involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it. It concluded that a total smoking ban is not necessarily precluded as a reasonable modification.
In Easley v. Snider , the Court considered the reasonableness of a public entity being forced to modify its policies, practices or procedures to comply with the ADA. The State of Pennsylvania appealed from the decision of the District Court which had concluded that the program developed under the Pennsylvania Attendant Care Services Act (hereinafter the "Care Act") violated the ADA, and had enjoined the State from excluding the plaintiffs from receiving attendant care services. The Care Act required that the recipients of attendant care with a physical disability be "mentally alert". In concluding that mental alertness was an essential element of the program offered under the Care Act, the court went on to consider whether reasonable modifications could be made to include the plaintiffs. The reasonable modification provision of the regulations implementing the ADA requires:

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the services, program or activity.

The plaintiffs argued that even if mental alertness was an essential prerequisite to receiving attendant care services, they could satisfy this prerequisite by the use of surrogates. The court held that the test to determine the reasonableness of a modification is whether it alters the essential nature of the program or imposes an undue burden or hardship in light of the program. The court found that the focus of the Act would shift from the provision of attendant care and its societal objectives for the people with physical disabilities to personal care services to the many thousands of people with physical disabilities who are often served by other specially designed State programs. Thus, the modification would create an undue and perhaps impossible burden on the State, possibly jeopardizing the whole program, by forcing it to provide attendant care services to all individuals with physical disabilities, whether or not mentally alert. The court therefore held that the use of surrogates would be an unreasonable modification of the program under the Act.

In Myers v. Hose, a bus driver who had diabetes, a heart condition and hypertension brought an ADA action against his employer alleging that the county was required to allow him time to ameliorate his medical conditions in order to reasonably accommodate his disability. In rejecting this argument, the U.S. Court of Appeals, 4th Circuit, held that nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect. Rather, reasonable accommodation is logically construed as that which would make the employee presently able to perform his or her job. The court further held that in mandating only those modifications that qualify as reasonable, Congress clearly meant to avoid placing employers in an untenable business position. For the County to be forced to stand by, or hire temporary help, while the plaintiff endeavoured to improve his failing health would be a significant burden, especially in light of the uncertainty of a cure. Nor was the County bound as a reasonable accommodation to grant Myers paid leave in excess of his annually scheduled amount, as the solution was not viable in light of the cost to the county, which would unjustifiably upset the employer's settled budgetary expectations. It is of note that the Court held that the county was not bound, as a matter of law, to abide by its own personnel policy regarding accommodation of employees with disabilities:

"While the County is free to exceed the requirements of the ADA in fashioning its policies regarding disabled employees, such policies are not the definitive source of the standard by which reasonable accommodation is measured under Federal Law."

Lastly, the Court held that the fact that certain accommodations may have been offered by the County to some employees as a matter of good faith does not mean that they had to be extended to the plaintiff as a matter of law.

In cases involving alcoholic employees, case law under the Rehabilitation Act suggests that as long as treatment is available and the alcoholic employee is willing to pursue it, reasonable accommodation may require that an employer refrain from terminating the employee until the employee has had an opportunity to receive the treatment. In Rodgers v. Lehrman, the court held that the plaintiff's discharge prior to an opportunity to attend an inpatient treatment program did not fulfil the defendant employer's reasonable accommodation requirements. Some courts have held under the ADA that the employer does not have to await the uncertain outcome of treatment or rehabilitation programs as a reasonable accommodation, although there is by no means unanimity in this regard.

d) Cases Interpreting Undue Hardship

In Borowski (supra), the Court describes the concept of "undue hardship" as relational: it looks not merely to the costs that the employer is asked to assume, but also to the benefits to others that will result. The employer must perform a cost/benefit analysis on a much more detailed basis (by referring to the factors cited in the Regulations) than that done by the employee in the initial stages of the exercise, which requires only that he or she point to an accommodation that is reasonable on its face.

In Huber v. Howard County, MD, the District Court of Maryland considered "undue hardship" under the Rehabilitation Act. The plaintiff was a firefighter who suffered from asthma. The court held he was not "otherwise qualified" for a firefighting position since he failed to show that the type of accommodation that the county would have to make to allow him to perform his job would be reasonable. The plaintiff alleged that the county failed to accommodate him when it denied him use of his inhaler during exercises at the academy. However, evidence led by employer showed that inhaler should not be stored near open flame or high temperature, as it might explode. Further, the plaintiff could not show how he could safely make use of the inhaler when in full equipment including headgear. Several other simultaneous accommodations were then proposed included having other firefighters trained to use a stethoscope and evaluate the plaintiff's breathing on a daily basis; and having his lungs checked at the scene of the fire. The court held that an employer need not make accommodations which would result in an undue hardship to the employer, and that the foregoing added up to just that. The fire department had no on-site medical department or rehabilitation centre, and commonsense suggested that establishing and maintaining such departments to accommodate the plaintiff would entail substantial costs. The County would have to increase its staffing requirements at stations to which the plaintiff was assigned in order to have enough active firefighters at the scene. The court held that an accommodation which permits an employee to work only when his or her impairment permits is not reasonable in a job, such as firefighting, where active attendance and immediate, undelayed participation is crucial. The Court further held that the plaintiff's requested accommodation would pose an undue burden on the County in light of the fact that the County provides only one day of disability a month, which would not be enough to accommodate the plaintiff. Providing him with extra disability days would affect staffing and hours of the other firefighters. Lastly, evidence was led to show that the plaintiff, with the accommodations, would only be at risk for problems less than 10% of the time. The court held that in the life and death circumstances facing firefighters, the County does not have to assume such a ten percent risk even disregarding the plaintiff's requested and potentially costly, accommodation.

Jackson v. Veterans Administration, also involved a claim by an employee under the Rehabilitation Act. The Court of Appeals, 11th Circuit held that the employer did not have a duty to accommodate the employee's unpredictable absences occasioned by his rheumatoid arthritis, since requiring the employer to accommodate such absences would place upon it the burden of making last minute provisions for the employee's work to be done by someone else. This was held to place an undue hardship on the employer.

In Barth v. Gelb, the Court accepted the employer's argument that its need for flexibility in the difficult task of rotating a small number of radio engineering specialists among 12 far-flung relay stations, while trying to maintain the efficiency of its operations, would mean that the otherwise reasonable accommodation proposed by the plaintiff employee constituted an undue hardship for this specific employer. The court also stated that adverse impact on employee morale may be taken into account in determining whether an accommodation would constitute an undue hardship.

In Bryant v Better Business Bureau of Greater Maryland Inc., the District Court of Maryland held that under the ADA, the question of whether a particular accommodation would impose an undue hardship on an employer focuses on the impact which the accommodation would have, if implemented, on a specific employer in question at a particular time; this is a multi-faceted, fact-intensive inquiry, requiring consideration of financial cost, additional administrative burden, complexity of implementation, and any negative impact which the accommodation may have on operation of employer's business, including the accommodation's effect on its workforce. In order to withstand judicial scrutiny, the employer's undue hardship defence to an ADA claim must have a strong factual basis and be free of speculation or generalization about the nature of individual's disability or the demands of a particular job.

In Anderson v. Gus Mayer Boston Store of Delaware, an employee with AIDS brought a claim under the ADA when he was denied health insurance coverage after his employer switched insurance carriers. The District Court of Eastern Texas held that when an employer changes group health providers to an insurer that would never consider covering one of the employees in the group because of that employee's disability, the employer violates the ADA by not providing equal access to insurance. Barring undue hardship, which the court likened to "a concept approaching financial ruin", the employer could not take the inevitable increased costs of insuring otherwise qualified individuals with disabilities into account when making hiring decisions.

In Meisser v. Hove, the court considered the obligations on Federal employers under the Rehabilitation Act. The court held that certain accommodations of a deaf employee made by the employer were not reasonable, and further that possible accommodations could have been made without undue hardship. Section 501 (as opposed to section 504) of the Rehabilitation Act can be distinguished from the ADA in this case, as it imposes an affirmative duty to structure procedures and programs so as to ensure equal opportunity in job assignment and promotion, and requires that federal agencies make a more active and affirmative effort to eliminate barriers to employment of people with a disability than mere non-discrimination. In this case, the court held that merely because an accommodation would require a change in a federal agency's supposedly neutral operating procedure does not render it unreasonable or unduly burdensome. Further, possible accommodation of the employee could have been made without undue hardship to the defendant, such as position upgrade, restructuring of his duties and/or modification of his assignments, or giving weightier consideration in evaluating him for promotion to special experiences he would bring to the position as an employee with a disability.

Lastly, in Hendry v. G.T.E. North, the former employee suffered from migraine headaches which necessitated relatively frequent, and unpredictable absences from work. The United States District Court held that the following proposed accommodations were not reasonable and would work "undue hardship" on the employer: 1) allowing a former service clerk to substitute for the employee since the former clerk worked for a different division of the employer and had her own work to perform; the position was the "linchpin" for the smooth operation of the department; and the employee was the only person who performed those specific duties; 2) allowing employee to use vacation time as sick leave (for the same reasons as above, and also because her absences were more frequent than vacation time could accommodate; and 3) allowing employee to continue unpredictable absences until she found curative medication, again for the same reasons.

3. Implications of Jurisprudence

A review of the jurisprudence makes it apparent that many of the problems initially identified by legal commentators regarding the interpretation and implementation of the Rehabilitation Act continue with the ADA. Specifically, the courts have taken inconsistent approaches as to the concepts of "reasonable accommodation" and "undue hardship", and as to who bears of burden of proving that an accommodation is reasonable.

Although the plethora of litigation forecast by the critics of the legislation has largely failed to come to pass, the ambiguity of the term of "undue hardship" (which is described only by example), has meant that courts have had to approach its interpretation on a case-by-case basis. Although there is some validity to the argument that this is an appropriate approach, as each potential accommodation is highly fact-specific, and depends on a balancing of the needs of the individual with a disability with the resources of the employer; there is no question that it results in a lack of certainty for both employers and employees.

There are a number of problems that can be identified with the way in which courts have been interpreting an employer's duty of reasonable accommodation short of undue hardship. Some of these problems arise from the language of the ADA itself. For example, the reasonable accommodation standard under the ADA creates an "all or nothing" duty. When an employer can reasonably accommodate an employee with a disability, it must do so; when accommodation would pose an undue hardship, the employer has no duty to act. Employers resent the first situation wherein they alone are responsible for the cost of integrating employees with disabilities; whereas in the second situation, the goal of helping to integrate the employee is forsaken and an otherwise qualified individual with a disability falls victim to the employer's specific financial situation.

As a result, the concept of undue hardship means that in certain cases whether or not an individual with a disability will find a job is dependent not on her specific attributes but on the size and resources of employers in her area. As was seen in Barth v. Gelb, a court will not force an employer to implement an accommodation that is reasonable on its face if it would pose an undue hardship for that employer as a result of the highly fact specific circumstances of that particular employer. This arguably arbitrary result (at least from the standpoint of the individual with a disability) is not so much a problem with the court's interpretation of the concepts as it is with the defence of undue hardship itself.
There are also problems with the differing approaches courts have taken to the burdens of persuasion and production in disability discrimination cases. Different circuits deal differently with who bears the burden of proving that an accommodation is reasonable, and as to whether "reasonable accommodation" and "undue hardship" are separate concepts involving different factual inquiries, or merely two sides of the same coin.

Lastly, most of the case law generated under the ADA to date has been the result of motions for summary judgment (and the appeals therefrom) brought by employers and/or employees in an attempt to summarily resolve the issues raised by the employee's claim of discrimination contrary to the ADA. As a result, some courts have ruled on the undue hardship defence based only on documentary and affidavit evidence, and without the highly fact-specific inquiry that a trial would allow. Other courts have refused to grant summary judgment for the very reason that more facts are necessary to determine whether an accommodation is reasonable, or for an employer to establish the defence of undue hardship. It would appear that, if the undue hardship defence is truly to be a last resort as might be argued was the intent of Congress, then the latter approach is the better one, and courts should be refusing in the vast majority of cases to grant summary judgment where reasonable accommodation and/or undue hardship is an issue. Especially with respect to the latter defence, it should be proven at trial by compelling evidence led by the employer showing that, based on a consideration of all of the factors listed in the ADA and its regulations, implementing a reasonable accommodation for the employee with a disability would truly be an "undue hardship".
Title II

Discrimination in Public Services

1. Description of Title II Provisions

ADA Title II covers discrimination against people with disabilities by providers of public services. It includes any state or local governments and any of their departments, agencies or other instruments and includes these entities whether or not they receive federal funding.

All activities of those entities are covered, including the services of courthouses, public parks and recreation facilities, schools, and transportation. Existing entities may need to make physical changes to facilities or changes to rules, policies or practices. All new construction or alterations are required to provide for accessibility.

Title II also includes communication access, so that public entities must provide equipment, signage and services (e.g. interpreters) for people with hearing, speech and visual impairments.

a) Transportation

For three reasons transportation is singled out in ADA Title II. First, transportation is distinguished in the ADA with its own subsection in Title II . Second, "the transportation provisions of the ADA were among the most hotly contested, primarily because of the cost of compliance", in the public and legislative discussions prior to its passage. Third, in the overall context of the ADA, Titles II and III have "the most direct impact for state and local governments".

Public school transportation and airline transportation are excluded from the ADA because these are covered by other legislation--the latter by the Air Carrier Access Act which prohibits discrimination in air travel.

Included in the ADA are all public transportation systems, many of which are urban, bus and rail transit systems, and Amtrak. The ADA requires that all new vehicles purchased and new facilities constructed which operate fixed route systems must be accessible to people with disabilities, including people who use wheelchairs. New buses must be fitted with lifts or ramps and fold-up seats or otherwise secured spaces in order to accommodate a wheelchair. The ADA transportation provisions place emphasis on physical accessibility requirements for persons with mobility impairments, whose needs may be met with the installation of ramps and lifts on buses.

Auxiliary and paratransit systems can be provided during an initial period when accommodations are being made to the regular transit system, and in instances where someone cannot navigate the system, in spite of its accommodations (eg., accommodations for those with cognitive disabilities who do not know where to get off the bus, or for those people who need transportation and for whom the regular route is not accessible). The ADA requires an accessible generic system of transportation with paratransit as an alternative targeted solely for those who are unable to use the generic system because of their disability.

The 500 Amtrak stations must be made accessible in not less than 20 years after the ADA came into effect. In the remodelling of existing facilities, renovated areas must be made accessible. Major rapid and light rail stations must be made accessible within 3 years, unless structural changes would result in undue burden, in which case they have up to 20 years to make the structural adjustments. In the case of trains, there must be at least one car per train which is wheelchair accessible.

Nondiscriminatory paratransit services must be comparable in both level of service and response time to that of fixed route systems. Furthermore, the ADA mandates that individuals with disabilities must be treated in a courteous and respectful way when using transportation systems.

Remarks from four Congressmen, prior to the passage of the ADA highlight the importance they placed on transportation as a key to integration and addressing civil rights.

The purpose of the ADA is to "open up mainline transportation systems to people with disabilities."

The ADA "represents a major breakthrough in ensuring that citizens who have been robbed of their mobility by disabilities or accidents can get to work, can pursue their interests, and broaden their lives with the access our nation's public transportation can offer."

"To be denied effective transportation is to be denied the full benefits of employment, public and private services, and other basic opportunities."

"It is unconscionable to imagine an able work force languishing at home because there is no access to public transportation. . . . The added costs are relatively small in comparison to the actual gains that are made through employment and more importantly through independence."

b) Education and Other Public Services

Title II, Public Services, Subtitle A, prohibits discrimination against people with disabilities in all services, programs and activities provided by state or local governments. This includes town hall meetings, recreational programs, museums and libraries, health and social services, and educational programs. Basic provisions under Subtitle A require that:

• policies, practices and procedures that screen out individuals with disabilities from fully enjoying goods and services be revised;
• auxiliary aids be provided to ensure that individuals with disabilities can communicate; barriers to entrances and use of facilities be removed;
• and new constructed facilities and alterations to existing facilities adhere to standards of accessibility to "the maximum extent feasible" unless "structurally impractical.

Education is primarily the responsibility of state and local governments. Title II has been interpreted to apply to public college and university education. Education is also covered in Title III, which prohibits discrimination by private providers (and covers child care). The ADA requirement that public entities reduce all barriers to equal access refers to a readjustment in terms of both abstract barriers and concrete physical barriers. For post-secondary education programs this includes practices in registration procedures, financial aid, housing, transportation and parking, pre-entrance testing, examinations, learning resources, curricula and methods of teaching . Since HIV/AIDS is covered under ADA, public school systems may no longer prohibit an HIV-positive child from attending schools, in spite of pressure from parents of other students.

In some cases, compliance will mean structural modifications to reduce either abstract or concrete barriers, but in other cases, auxiliary aids and services may be provided. In order to avoid misinterpretation, "auxiliary aids and services" are defined to include: "(A) qualified interpreters or other effective methods of making aurally delivered materials available...; (B) qualified readers, taped texts, or other effective methods of making visually delivered materials available... ; (C) acquisition or modification of equipment or devices; and (D) other similar services and actions."

c) Court Decisions concerning Education under Title II

Three other acts and regulations influence the education implications of the ADA: The All Handicapped Children's Act (EAHCA) of 1975, which became the Individuals with Disabilities Education Act (IDEA) of 1993; the U.S. Health, Education, and Welfare (HEW) regulations promulgated to enforce EAHCA; and Section 504 of the Rehabilitation Act of 1973. The latter (Section 504) affected all programs receiving federal funding, so that for the past two decades, a large number of college and universities have been required to comply with legislation similar to the ADA.

Thus, the issues raised in courts and in the literature under these earlier Acts continue to be reflected in actions brought forth for interpretation of the ADA. For example, one important aspect of the IDEA regulations is the inclusion of a definition of the term "specific learning disability" which refers to a disorder in one or more of the psychological processes involved in comprehending or using language. Since the ADA also refers to but does not define "specific learning disability", at least one court has already relied on the IDEA for that definition under the ADA.

There have been relatively few decided cases under Title II since it came into effect. However, a number of issues have been considered regarding the education implications of Title II of the ADA and related legislation. The following discussion highlights some of these issues by reviewing selected cases wherein the courts have used 504.

Procedural Issues

One procedural issue under Title II of the ADA and s. 504 of the Rehabilitation Act is whether or not individuals have a private cause of action (right to sue) against the government body responsible for implementing the allegedly discriminating educational service. This question has been answered in the negative in a case brought under s. 504 of the Rehabilitation Act. In Salvador v. Bell, the plaintiff sued the Secretary of the Department of Education for failing to investigate complaints against the university or review decisions regarding the complaints. In dismissing the action, the Court held that individuals with a disability who participate in programs offered by recipients of federal financial assistance do not have a private cause of action against the Secretary of Education under s. 504 of the Rehabilitation Act. The student, who complained that the university had discriminated against him because of his handicap, a learning disability, could instead pursue a private remedy against the university under that section.

Given the similarity of the provisions, it is safe to assume that this principle will hold true of cases brought under Title II of the ADA.

Knowledge of Disability

In considering whether a school or university must accommodate a student with a disability, one issue that has arisen is whether the school or university should have prior knowledge of the disability. In Aloia v. New York Law School, the court concluded that the defendant must have knowledge of the disability prior to being required to accommodate. In Aloia's case, he was not meeting the requirements of third year law school, but had failed to advise the school that he had a disability. The court concluded that if the school had no knowledge of his disability, it could not be held to be excluding him on the basis of disability.

Hurley notes that: "As more and more learning disabled students are entering post-secondary institutions each year, both learning disabled students and universities are concerned with the amount and type of knowledge that a school must have of a student's learning disability before the school must provide accommodations under section 504. Learning disabilities are often misunderstood, and are sometimes not detected at all."

Proof of Disability

Another issue that arises in the educational context is the extent to which a student must document his or her disability, and whether a school is bound by that documentation. In some cases, the learning disability will not be detected until after the student has been admitted into the institution. The importance of documentation increases as the disabilities are less visible, as in the cases of learning disabilities.

There are two sub-issues that arise regarding the proof or documentation of a learning disability: 1) what is required to establish a learning disability; and 2) who is qualified to provide the necessary documentation. In the case of Argen v. New York State Board of Law Examiners, the court considered both of these issues. Argen was given an accommodation by the law school of double time for sitting the LSAT pre-law school test based on documentation provided by a person holding a Ph.D in Special Education who concluded that the plaintiff had a language processing problem. Based on this same report, he was given double time to write his exams during his three years at the law school. When he requested the same accommodation for his bar exam before the New York State Board of Law Examiners, they referred the matter to their own expert, also a Ph.D This expert recommended that Argen's request for accommodation be denied.

At trial, the plaintiff led evidence by two experts that he suffered from a learning disability. The court compared their testimony to that of the defendant's expert, and concluded that the latter's use of an objective standard to define learning disabilities was more appropriate than the undefined and unquantified standards proposed by the plaintiff's experts. It also found that for the purpose of evaluating requests for accommodations on the bar exam, the defendant's experts use of widely accepted objective methods of testing for a reading-based learning disability were far preferable to the "qualitative" analysis performed by the plaintiff's experts.

As a result, the court accepted the defendant's position that the plaintiff did not have a learning disability; and thus concluded that the plaintiff had failed to meet his burden of proving that he was a qualified individual with a disability under the ADA.

Academic Deference

The question of whether courts should exercise academic deference when determining whether a student is "otherwise qualified" has also received significant debate. Most courts agree that a school has a right to maintain minimum academic requirements and deem them essential without interference from the courts. However, in some cases courts look at the availability of a reasonable accommodation in determining whether someone is able to meet the essential requirements set by the school without fundamentally altering the program (and is therefore "otherwise qualified"). Since terms such as "fundamentally alter" or "otherwise qualified" are not defined, they will have to be approached on a case by case basis.

One example of the courts refusing to exercise academic deference can be found in the case of In re Petition of Kara B. Rubenstein, which was decided under Title II of the ADA. Rubenstein did not pass parts of the bar examination, nor the multi state bar examination, after trying in 1991, 1992 and 1993, although she passed each part in different years. After these failed attempts, she was diagnosed with a learning disability. Most importantly from the Court's point of view, during these years, she worked successfully as a law clerk. The Supreme Court of Delaware ordered the Delaware Board of Bar Examiners to certify her despite her inability to pass the required exams. According to McKinney: "What Rubenstein demonstrates is that the bar examiners are too caught up in psychometric concerns (an entry barrier) and have lost sight of the real purpose of the bar exam - to test competence."

In contrast, in an earlier decision under the Rehabilitation Act, Doherty v. Southern College of Optometry, the court exercised academic deference by holding that the defendant school should not be required to waive its clinical proficiency requirement. Since the college had established that clinical proficiency requirements were a necessary part of the curriculum and the plaintiff had retinitis pigmentosa which affected his motor skills and could not therefore meet those requirements, the court held that he was not "otherwise qualified" within the meaning of s. 504. Despite evidence that the instruments that the plaintiff could not use were not used in the general clinic at the College; that optometrists could not legally use those instruments in six states; and that the requirement had been in place for only two years, the court held that: "nothing in the language or history of the s. 504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program".

In Anderson v. University of Wisconsin, the court appeared to rely on academic deference as a means of avoiding an inquiry into whether the school could have reasonably accommodated the plaintiff. In this case, which was decided under s. 504 of the Rehabilitation Act, the court held that the issue of whether an alcoholic former student's recent academic performance was sufficient to demonstrate that he was able to handle the rigours of law school was not a proper determination for the court, but rather for the law school. The question that the court must deal with, on the other hand, was whether the law school discriminated against the student because of his handicap. Unfortunately, the court did not then take the analysis any further to determine whether reasonable accommodation could be found to assist the student in meeting the essential minimum grade requirements. Instead, it affirmed the trial court's dismissal of the motion since the plaintiff could not demonstrate that he was "otherwise qualified".

In other cases, the courts have considered whether there was a reasonable accommodation available whereby the student could meet the essential requirements of the program, but that would not alter those requirements in any fundamental way, in determining whether the plaintiff was "otherwise qualified". In Pushkin v. Regents of the University of Colorado , decided under s. 504 of the Rehabilitation Act, the court acknowledged that the school had the right to maintain minimum academic requirements. However, the court went on to determine whether the plaintiff could meet those requirements if given a reasonable accommodation. Pushkin was a medical doctor who had multiple sclerosis and wanted to be admitted to the psychiatry residency program. The courts decided that reasonable accommodation in the form of part-time studies, modified schedule, and reduced night call duty did not substantially alter the school's program, and would allow him to meet the minimum requirements.

Similarly, in the 1991 case of Wynne v. Tufts University School of Medicine, the courts held that in the context of the "otherwise qualified-reasonable accommodation" inquiry under the Rehabilitation Act, the principle of respect for academic decision-making applies. However, the academic institution has the obligation to seek suitable means of reasonably accommodating the handicapped person prior to determining that he is not "otherwise qualified".

Similar issues have arisen under Title II of the ADA. To date, many of these have been handled by the Department of Justice, who have obtained numerous settlements with various educational institutions and services, thereby reducing litigation costs. In Szarlan v. Connecticut Bar Examining Committee, the plaintiff charged that the Connecticut Bar Examining Committee had violated the ADA by requiring applicants to the bar to state whether they had ever sought treatment for or been diagnosed as having a nervous, mental, or emotional condition, and subsequently were required to provide medical documentation regarding such conditions. As a result of this case, a settlement was reached whereby the Bar Examining Committee withdrew such requests and substituted a revised inquiry focusing more narrowly on impairment of the ability to practice law.

In Rockland County, New York, a settlement agreement was reached, with the assistance of the Department of Justice, between a plumber who had been practising his trade for 23 years and the Rockland County Board of Plumbing, Heating, and Cooling Examiners. The plumber who had dyslexia requested a reader or an oral test as an accommodation on the written portion of the County's master plumber licensing exam, but had been repeatedly denied. This was found to have violated Title II, and the settlement agreement reached required the Board to not only provide an oral test or a reader, but also to adopt a nondiscrimination policy on the basis of disability which would be subject to Department of Justice approval.

A broad range of cases are being dealt with by the Department of Justice under Title II. For example, it recently entered into an agreement with The Educational Testing Service and the College Entrance Examination Board who are responsible for administering the Scholastic Assessment Test ("SAT"), which is a standardized test used by most American colleges and universities for entrance students. The Board agreed to make available more scheduled dates for the SAT test to those with disabilities, who had previously had only one date to take a new version of the test (as opposed to their peers who had several opportunities to take the test). This agreement allowed approximately 2,600 students with disabilities who took the old version of the test the chance to cancel their scores and retake the new exam.

2. Assessing Impacts

The data on the impact of ADA are derived from a variety of sources and periods making detailed comparisons difficult and unreliable. Such information, however is useful in providing a broad scope of the directions being taken in implementing the ADA.

a) Accessibility

Fixed-route Transportation and Paratransit Services

The first five years of ADA implementation has shown an increase in accessibility in fixed-route and paratransit services. In the year prior to the ADA, about one-third of all fixed-route vehicles was accessible. At the end of 1992, approximately 50% of the nation's 51,625 transit motor buses were accessible to wheelchairs. According to the National Council on Disability, by June 1996, 60% of all buses had met ADA standards. Only 35% of rural fixed route vehicles, however, were accessible.

Some of the changes and strides in promoting accessibility among transit systems are outlined in general terms in the literature. Prior to the enactment of ADA, paratransit provided 16 million rides per year. This number had increased to 37 million by 1995 and is expected to rise to 48 million by the end of 1997 . This increase in paratransit ridership has been attributed to a number of factors linking enhancements in services to the greater demand among communities of people with disabilities and senior citizens. This increase has also been attributed to more expanded definitions of eligibility that have been implemented by transit authorities.

Updated transit plans received by the GAO in 1993 revealed that the majority of transit agencies were taking advantage of the five years allowed by the DOT for phasing in ADA transportation provisions. Thirty-nine percent of agencies projected 1996 or January 1997 as the year that they anticipated full compliance. By 1994, about nine percent of these agencies had already reported achieving full compliance.

Rail Transportation Systems

By 1995, 450 rail systems met ADA requirements. The ADA requirement that one accessible care be available on every train, was achieved in 1995. One hundred and twenty-seven key rail stations were in litigation or participating in negotiating compliance with the FTA by the end of 1995.

Educational Outcomes

Statistical evidence on the impact of ADA in terms of education is minimal. According to the U.S. Department of Education (DOED) the percentage of students with disabilities completing high school rose from 55% in 1984-85 to 64% in 1991-92. Furthermore, the dropout rate for high school students with disabilities decreased from 27.4% to 22.4% between 1986-87 and 1991-92.

According to DOED estimates, in 1991 almost 9% of college freshmen were students with disabilities. By contrast, less than 3% of students with disabilities were college freshmen in 1978. A Harris poll reported that the percentage of adults with disabilities who had completed at least some college increased from 29% to 44% between 1986 and 1994.

Physical Access to Buildings

In their survey of public facilities, the GAO observed most facilities were consistent with accessibility standards. Numerous changes have been made to enable access for people with disabilities to buildings and other public services. Notable are the many courthouses and municipal halls which have made structural and other alterations. Furthermore, there have been changes made to polling stations, parking lots, parks, museums, jails, baseball game facilities and arenas. New TDDs, additional signage, and other auxiliary aids have been installed in numerous public facilities throughout the U.S., including correctional institutions, city emergency centres, and 911 emergency systems.

Modifications to Procedures and Policies

Changes in procedures and policies have been made in regard to: licensing examinations, such as those for counsellors, and by those required by state bar associations. Modifications have also been made in the process of criminal arrests and in health care placements. Health care decision making and access to processes of decision making are also issues of growing concern in the implementation of the ADA.

b) Other Impacts

Innovations Among Transport Authorities

The Transportation Research Board in noting the concern among transit agencies for the poor utilization of fixed-route services by people with disabilities, sponsored a research project intended to develop a model program for attracting persons with disabilities to fixed-route service. Transit agencies are also involved in training and encouraging people with disabilities to use fixed-route transit. Transit agencies in Chicago, Atlanta, Houston, and Phoenix have purchased low-floor buses that use boarding ramps in an effort to better enable the boarding of not only wheelchair users, but also elderly persons and small children with their parents.

Public Opinion

A 1991 Louis Harris Survey reported that 16% of people with disabilities were aware of the ADA. This figure increased to 40% in their 1994 survey.

The majority of Americans (56%) agree that some expenditures are needed to make the country more accessible. However, there has also been some public sentiment that "the ADA has gone too far." The media has been known to highlight the fringe ADA cases, characterizing the ADA as an example of government over-regulation. People with disabilities, however, have repeatedly encouraged the federal government to play a stronger role in the enforcement of the ADA, and in combatting discrimination against people with disabilities.

3. Issues

Several issues present challenges to the ongoing process of implementing Title II provisions of the ADA.

a) Cost Considerations

Compliance Costs for Fixed-route Systems

For about a decade prior to the ADA, the cost of providing transportation was contested in the debate centring on rights versus rides--that is, the right of the person to enjoy full mainstream public services (rather than specialized services such as HandiDart) versus cost of providing such services. Cost continues to be a major issue in disputes over compliance to the ADA.

Reliable cost estimates appear difficult to calculate, with one party accusing the other of unreliable figures. For example, in 1989 Greyhound Corporation argued that compliance with ADA would cost $40 million a year, although their profits were only $8.5 million that year. According to Dempsey, even without a wheelchair lift, a new bus costs about $300,000 and adding a lift could increase the cost by 10%. On the other hand, Golden says: "Given that the lift-type equipment adds only about 5 percent to the cost of a bus, and that the federal government pays for 80% of a new vehicle's capital cost, the cost to cities is quite a bargain." It has also been argued that ADA is an example of the federal government overstepping its mandate, so that "the provision of transportation to people with disabilities often is cited as an example of a costly intrusion by a federal mandate". On the other hand, Pfeiffer argues that, "ultimately the question of costs become a question of priorities: which group of citizens will see their interests and values furthered by public monies."

Deregulation has forced many bus companies to reduce its services, and large areas of isolated communities are now without any service. There is some concern that access may be deemed to be meaningless in transportation plans. According to Dempsey: "Access for the poor, the elderly and the disabled means nothing if the bus no longer stops in your town". The flip side of this problem is that as transportation becomes more readily accessible and convenient, there may be a greater demand for educational and recreational services by a large group, estimated to be about 20% of the population, many of whom have not had access to such opportunities.

There is concern that fares may need to be raised. With higher fares come lower ridership and, in turn, increases in urban highway use and air pollution. Ridership costs generally increase with higher wages for transit drivers and the additional costs of meeting service standards. By virtue of ADA service criteria, per passenger trip costs are expected to increase substantially. The overall average from fixed-route services in 1993 was estimated at $1.75 per trip. By comparison, the overall average of a paratransit trip was $11.63. The FTA estimates that transit agencies would spend $65 million annually to make their fixed-route buses and railcars accessible, $50 million of which would be spent on adding and maintaining wheelchair lifts or ramps on buses. Furthermore, the FTA estimates that $130 million would be spent to make railways stations accessible.

Compliance Costs for Paratransit Services

Paratransit operating costs may be the most expensive of all ADA compliance costs and so, has emerged as a major concern in ADA implementation. Operating costs are more significant than capital costs, which are usually subsidized federally and by the state. According to the U.S. Department of Transportation (DOT), the FTA agency responsible for the implementation of transportation provisions of the ADA, operating costs represent 86% of paratransit costs. The ADA creates no new funding source for paratransit, and has placed an additional limit on paratransit in that public transit systems are not required to provide paratransit beyond the point at which it will pose an undue financial burden.

Whether there will be money available to make budget increases is questionable. Without additional funds from federal, state or local sources for transit service expansion, transit agencies may have to consider restricting paratransit service to those who meet ADA criteria; request waivers to delay full compliance with the ADA; and increase fares for all service.

Smaller transit operating systems rely on federal and state subsidies more than larger systems, however, the rise in paratransit costs are expected to be higher in the larger urban systems. According to transit agencies' plans received by the GAO, those transit agencies located in large urban areas projected about a 129-percent increase in paratransit costs between 1991 and 1996. Transit agencies in medium-sized urban areas projected a 100-percent increase. Those in small urban areas projected a 127-percent increase, and in nonurban areas, about a 63-percent increase for the same time period.

According to the GAO projecting the cost of paratransit is subject to considerable uncertainty for several reasons: (1) improvements in service may prompt demand from persons who have made minimal use of paratransit services; (2) practice among social service agencies, who in the past provided transportation to their clients, may rely more on transit agencies to provide transport services; and (3) as the number of accessible fixed-route buses increases, transit authorities may have limited success in persuading paratransit riders to switch to fixed-route transit services.

Compliance Costs for Educational Entities

One of the most pressing issues identified by educational institutions required to comply with Title II of the ADA is the cost of compliance. One question which has come before the courts is what is reasonable in terms of costs for a school or university to absorb in making an accommodation; and whether a student should meet a university's financial means tests before the university should be expected to pay for his or her auxiliary aids. Hurley has summarized how the courts have reacted to these questions, with respect to Section 504:

"... courts have recognized the validity of school's concerns over the cost of providing disabled students with reasonable accommodations, such as auxiliary aids. Courts, however, have held that colleges and universities cannot impose 'financial needs' tests to avoid providing aids to handicapped students. Courts have reasoned that because schools have flexibility in determining how to provide auxiliary aids, they must provide them to all of their handicapped students in need of such aids. Thus, schools must provide needed auxiliary aids to their handicapped students regardless of the students' financial needs."

c) Regulatory Problems in Transportation

There are a number of problems caused by specific Department of Transportation (DOT) regulations. These regulations also appear to contradict the spirit of the ADA. There is a regulation that allows intercity private bus transit companies to request two days of prior notice when boarding assistance is required. This may generate the same type of discrimination practised in the past during the era of extensive paratransit.

Another regulation forbids a wheelchair user from riding outside securement location areas in a bus. There is concern that this may cause delays every time a bus, with its wheelchair securements already in use, passes another wheelchair user waiting at a bus stop..

A third example is the regulation which does not require universities, which are accessible by fixed-route systems, to provide additional paratransit services for those unable to use the fixed route systems. In communities where the university dominates, the fixed route system may be the only transit option in town and so, may pose a serious problem for students with disabilities.

d) Difficulties in Determining Eligibility for Paratransit

Prior to the introduction of the ADA, when paratransit demand surpassed existing capacity, transit systems put into place eligibility restrictions to limit ridership. Under the ADA, this process of eligibility determination is considered to be discriminatory and new eligibility criteria have been introduced.

The ADA eligibility criteria for paratransit services is that the disability must be "functionally evaluated to demonstrate that the disability, rather than simply making travel difficult or unpleasant, prevents the person from independently using the fixed-route system." The DOT has proposed "trip-by-trip eligibility" determination such that with each requested trip, it may be determined whether or not an individual actually needs paratransit service and is unable to use the fixed-route service. Most transit agencies surveyed by the GAO considered the concept of eligibility criteria and the process of denying transit rides on a trip-by-trip basis to be impractical. Agencies cited the administrative burden; the potential liability in denying requests; and the lack of information to make sound eligibility decisions as reasons for the impracticality .

In their analysis of twelve transit agencies, the GAO reported that eleven agencies found establishing criteria for eligibility for paratransit to be difficult and time-consuming because of: the requirement for public consultation in developing the criteria; the development of application forms and review procedures for making determinations of eligibility; the need to establish new relationships with professionals for the process of eligibility-screening; the development of appeal mechanisms; and the need to develop criteria for addressing the needs of people with intellectual disabilities.

While the demand for paratransit services increases, the utilization of generic and fixed route transit systems in most U.S. states has remained low. Simon argues that these developments have placed further pressure on transit systems to fully comply with accessibility requirements of the ADA, and in turn, may serve to limit fixed-route transit services for the general public. In order to address this issue, Simon recommends that technical assistance be provided to transit systems to enable: (1) the development of eligibility programs for paratransit systems; (2) more education for people with disabilities on legal issues and ADA requirements; and (3) training for transport operators, in particular, bus operators, on their responsibilities under the ADA.

Key factors cited as influencing the rising paratransit demand are: lenient certification and eligibility requirements for ridership, since the introduction of ADA; improved quality of paratransit services since the ADA; client "dumping and shedding" by human service agencies and health care agencies onto the paratransit system; and general reluctance among consumers with disabilities to use fixed-route transit services. These factors are similar to those factors which make paratransit cost projections difficult.

e) Access to Other Public Services

Problems with Physical Access

In their inspection of places of public accommodation and areas where public services, programs or activities were provided in buildings and locations in the Washington DC area, the General Counsel's Office identified three main areas where improvement needs to be made with providing access to public services and accommodations to people with disabilities: (1) lack of appropriate directional signage and information about accessible facilities and entrances; (2) lack of overall awareness of disability issue and ADA accessibility requirements; and (3) lack of overall coordination and consistency of responsibility for providing access to places of public accommodations and public services.

Problems with Communication Access

In order to effectively provide information to individuals with disabilities, auxiliary aids and services which may include, interpreters, documents in alternative formats (i.e., Braille; large print format; audio cassette), and amplifiers for people with hearing impairments may be necessary. While the use of communication technology has been promoted under Title II for delivering accessible educational programming, there remain operators of places of public accommodation who lack awareness and knowledge of communication aids and services available. The Office of the General Counsel and Office of Compliance noted that many of their services and places of public accommodation, with the exception of police services, lacked knowledge and awareness of the communication needs of people with disabilities. In particular, they have called for: improvements need to be made tours of the Capitol; information on services to people with disabilities; the provision of official materials in alternative formats; telecommunication services (e.g., text telephones or TTY) to communicate with persons who are hearing impaired or who cannot speak; services for the hearing impaired (i.e., interpreters and assistive listening devices); and additional services such as classes for Capitol police recruits and security aids in appropriate etiquette and language for interacting with people with disabilities.

f) Delays in Compliance

Transit agencies have been slow in implementing processes for determining eligibility to paratransit services. Of the twelve agencies surveyed by the GAO, only three had established eligibility processes at the end of 1992. All twelve planned to used varied approaches to determining paratransit eligibility. By the end of 1993, the DOT noted that most of the plans of transit agencies had developed processes for determining eligibility, however, few had experience in implementing such processes.
The lack of curb cuts from sidewalks to streets is another common transportation problem for many people with disabilities. However, since the implementation of the ADA, many state and local governments have not been able to meet the deadline for installation of curb cuts to existing pedestrian sidewalks. The Department of Justice, in turn, has proposed extending the time period for compliance by several years.

The FTA only considers the costs to provide trips eligible under the ADA when evaluating waiver requests by transit authorities for waivers to extend proposed accessibility deadlines. The ADA, however, did not set a deadline for fixed-route transit accessibility, only that most transit vehicles purchased or leased after August 1990 be accessible.

At the end of 1995, over 200 rail systems were granted varied time extensions up to the year 2020. Expanded signage electronic message boards and teletypewriters (TTYs) for people with hearing disabilities, and detectable warnings for people with visual disabilities are being installed

The more changes, cost and coordination problems that need to be addressed in order to comply to the ADA, the more time an agency will likely request to make changes.

Title III

Public Accommodations and Services operated by Private Entities

1. Description of Title III Provisions

ADA Title III and the regulations developed by federal departments to implement it specify the removal of barriers for access to public accommodations and the delivery of goods and services to people with disabilities. Title III also sets standards of accessibility for the construction of new buildings and the alteration of existing ones.

The concept of public accommodation under Title III is wider than its predecessors in anti-discrimination legislation including the Civil Rights Act of 1964, and Title V of the Rehabilitation Act, 1973. All facilities and services other than residential housing and commercial air travel and governmental services are covered by Title III. Exempted from Title III are private clubs, religious organizations, private housing and residences (i.e., non-commercial housing). The non-discrimination rule in Title III is that "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 accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." This follows the suggestion that non-discrimination is a ongoing, rather than a fixed, concept that may change over time.

Title III lists twelve (12) categories recognized to be places of public accommodation: establishments serving food and beverages; exhibition and entertainment venues; public gathering places; sales or rental establishment, or terminals; places of education (including child care centres); recreation centres buildings; social services centres' fitness/exercise centres; service establishments. These entities are covered regardless of their size or number of employees.

Among other provisions, Title III prohibits:

screening out of people with disabilities from enjoying goods and services;

failure to make necessary reasonable modifications to policies, practices or procedures when necessary, unless doing so would fundamentally change the nature of the accommodation;

failure to provide auxiliary aids and services to people with disabilities unless doing so is not readily achievable, would result in undue burden or fundamental changes to the nature of the accommodation;

failure to remove structurally-related architectural and communication barriers in existing facilities; and

failure to provide appropriate accommodations when removal of barrier is not readily achievable.

As with Title II, the Department of Justice coordinates the enforcement of Title III activities and administers the enforcement guidelines for these titles.

2. Assessing Impacts

The information on the impact of Title III is derived from Department of Justice enforcement reports and fact sheets and from various analysts' reports. Comparison of data is unreliable considering the varied dates of the sources. Nevertheless, the information is useful in providing insight into the breadth of the implementation of
Title III.

a) Enforcement Outcomes

Complaints and Settlements

The Department of Justice refers most of its incoming complaints to other federal agencies authorized under the ADA (See section of report on Administration). As of late July 1994, 2,649 complaints had been made under Title III of the ADA. Of those, about half were closed for reasons such as lack of jurisdiction or because the person bringing the complaints were found not to have a disability within the terms of the ADA. The vast majority of Title III complaints have been resolved through informal agreements which entailed the party voluntarily agreeing to make modifications, at times specified after negotiation with DOJ attorneys.

Technical Assistance

The DOJ has provided technical assistance on implementing Title III of the ADA. Technical assistance can include the distribution of information materials in print and on the Internet; running of toll free 800 numbers; training; advice on problem solving; referrals to other agencies and the promotion of public awareness through publications and media releases. Demands for technical assistance are ongoing.

Compliance Reviews

The main activity of the Department of Justice in implementing Title III has been monitoring and compliance reviews. In 1992, the DOJ conducted a compliance review targeting construction projects and notifying contractors and architects of ADA specifications. The DOJ has reviewed architectural plans from building projects
nation-wide and has, on request, certified state laws and building codes as to whether they meet the ADA's minimum access requirements.

b) Other Impacts

Voluntary Compliance

It was intended that compliance with Title III would be enforced through a process of claims and complaints. Some of the initial assessments of responses to the legislation, however, suggest that Title III has had the effect of encouraging voluntary compliance on the part of many private sector entities, including child care settings. Wagner describes how large hotel groups have taken steps towards making their businesses accessible and how such a move has translated into "good business" practice. The Department of Justice has attempted to encourage voluntary compliance in claim settlements.

Strengthening of Existing Legislation

Title III has supported amendments to existing legislation such as the Rehabilitation Act and has strengthened the implementation of existing legislation such as the Fair Housing Amendments Act of 1988 (FHAA).

Public Opinion

Data available on the reactions of various groups towards the ADA are not consistent. A 1992 Gallup poll revealed that 17% of businesses were not familiar with the ADA. Twenty-five percent were familiar in name only and 44% were "somewhat familiar."

According to the GAO's study of those business owners and managers who were informed about the ADA, however, the percentage who said that they knew they had to remove barriers by the effective date of January 1992, increased from 77% in January 1992 to 88% in April 1993.

The response among people with disabilities has been split evenly. According to the Louis Harris Poll, of those people with disabilities who were aware of the ADA, 50% have expected that the legislation will make no difference in their lives, while 50% felt that the ADA will have some effect on their lives.

3. Issues

There are some issues that present ongoing challenges in the implementation of
Title III.

a) Appropriateness of Barrier Removal

Removal of Barriers in Businesses

The U.S. Government Accounting Office (GAO) was supported by the House Subcommittee on Select Education and Civil Rights of the Committee of Education and Labour to undertake a long-term evaluation of the ADA. The key goal of this effort is to evaluate whether the main objectives of the ADA are being achieved. This includes whether access to goods and services under title III has increased and discrimination decreased since the ADA was passed, and whether public attitudes towards people with disabilities have improved.
In the GAO evaluation, researchers found that many businesses did not have plans in place to remove the kinds of barriers that were covered in the ADA requirements. Among those businesses that did remove barriers, approximately 35% of barriers that have been removed were not required changes under the ADA. Although the removal of these barriers was deemed to be a positive move, GAO researchers found that many key barriers covered by the ADA remained. Since the GAO study did not consider such issues as whether removal of the specific barriers by businesses was readily achievable, it is difficult to ascertain from this study alone whether Title III compliance is increasing among businesses.

Most of the positive responses in removing physical barriers have been from big businesses. Large business associations who were involved early on in educating their membership about the ADA have also been instrumental in promoting compliance under Title III. In some cases disability advocacy groups have worked collaboratively with local business communities to promote greater awareness of the ADA and to provide technical assistance.

Many small businesses are not complying with Title III because they believe that Title III barrier removal requirements are dependent on the number of employees they have (i.e., a limitation which is in effect under ADA Title I employment provisions but not under Title III). Some businesses also share concerns as to the effects of compliance on their profits and are uncertain of the benefits of compliance to their day-to-day operations. Another possibility that has been raised is that businesses may simply be waiting for the results of court cases before they decide whether to comply.

In order to reduce the cost of burden, a tax credit equal to 50% of expenses between $250 and $10,250 is available for small businesses. This credit may be claimed each year that a business makes an ADA required accessibility expenditure. The credit may be carried forward for up to 15 years and retroactively to three years. Some of the National Institute on Disability and Rehabilitation Research (NIDRR) technical assistance centres have reported that small businesses are not aware of these tax incentives and are waiting for the results of court cases before they decide whether to comply.

Removal of Barriers in Child Care Centres

Under the ADA, child care centres are required to make reasonable modifications in policies, practices and procedures in order to accommodate individuals with disabilities. Where "readily achievable", child care centres are required to remove all architectural and communication barriers that are structural in nature. Changes may also include adaptations to affect staff training and curriculum.

The ADA does not provide funding to child care centres to implement barrier removal under Title III. What it does provide in terms of financial incentives is a tax credit similar to that available to small businesses. However, if the child care centre is a non-profit organization, the centre will most likely have to turn to local foundations in order to receive the financial assistance necessary to defray the costs of barrier removal.

Some child care facilities have had to raise tuition fees to help offset the costs of implementation of the ADA provisions. The Act specifically mandates that tuition increases, when implemented, cannot be targeted solely to the student with a disability. Programs, however, are permitted to raise tuitions for all children, in order to cover increased costs of barrier removal.

b) Backlogs in Claims, Complaints and Technical Assistance

Claims and Complaints

Reasons given for the backlog of Title III claims and complaints vary. According to some reports, lack of staff prevents the DOJ from investigating all the complaints it receives. Many businesses have been reported to be taking advantage of this backlog by maintaining a "wait and see" attitude rather than voluntarily complying to Title III provisions.

Some analysts suggest that the backlog is related to the number of unreasonable claims and that initiatives established by the Department of Justice to supply information and guidance are inadequate. Remedies for the backlog include suggestions for more cooperation among responsible agencies and the development of a mediation process.

Technical Assistance

Many people who have sought technical assistance from federal agencies have complained about waiting for long periods to receive answers to their inquiries. One study indicated that The DOJ took an average of 98 days to respond to a letter requesting assistance.

The problem of providing technical assistance has been complicated further by proliferation of incorrect information about the ADA. Businesses have been apprehensive about listening to so-called "experts" on the ADA. The proliferation of people, who promoted themselves as "certified ADA consultants" shortly after the ADA requirements became law, had the effect of capitalizing on the fears among businesses about ADA requirements. Some businesses have also reported reluctance in seeking technical assistance from federal agencies who enforce the ADA. There is a fear that the government offices will be able to "keep tabs" on business performance after seeking assistance.

Other business associations have noted that technical assistance has been more effective when provided between peers. In recognition of this notion, the DOJ provided grants to several business associations to educate their members about the law.

c) Ambiguities in Standards, Responsabilities, Definitions and Measurement

Standards and Responsabilities

Fondo describes the tension between preservationists and disability rights advocates in how the ADA should be implemented. Fondo addresses conflicts of interests between the ADA and the National Historic Preservation Act (NHPA), and the limited protection offered by the application of exemptions to historic buildings. In other words, the goals of accessibility of the ADA conflicts at times with the NHPA's goal of preserving historic properties and buildings. A means for addressing this conflict of interest has been to reduce accessibility requirements for qualified historic landmarks and properties in cases where making modifications would "threaten or destroy the historical significance of qualified buildings and facilities."

McKinney has identified differing interests between standards for access and standards of excellence in the process of bar examinations. The author questions the various interests perceived by bar examiners, which include: the conflict between accommodation for people with disabilities and competence; the problems of defining eligibility for the purposes of accommodation; and the issue of developing strategies to accommodate a particular disability while maintaining cost control.

Another ambiguity is between the responsibilities of landlords and tenants. Whelan addresses the problems posed by the omission of the ADA to allocate responsibility for removing physical and architectural barriers in commercial buildings. It is unclear whether the landlord or the tenant is responsible for barrier removal.

Definitions

Much of the available literature focuses on the promise of Title III as a vehicle that will create a more inclusive society, a vehicle that goes beyond the equal opportunity framework of previous legislation. There are, however, contradictions identified by analysts between the promise of the legislation and disability. Parmet has argued that the ambiguities in the language of Title III reflect the limited conception of disability that dominates Congress, and its lack of commitment to the provision of the health care services required to support the independence of people with disabilities. Parmet concluded that "..., in some sense, the ADA can be seen not as the public recognition of the needs of the disabled, but as a way of supporting the privatization of the disabled's health care needs."

Measurement

There seems to be an absence of any systematic evaluation of the effectiveness of Title III as a mechanism that can make a difference for people with disabilities. Much of the analyses of the ADA does not provide sufficient information to draw conclusions about the effectiveness of Title III. Surprisingly, no federal agency currently gathers population-based information about disability and about issues of discrimination targeted by the ADA. Although surveys on accessibility have been conducted by a number of private sector groups, the results are not necessarily statistically valid and reliable for broad generalizations. These surveys, however, can aid in the facilitation of dialogue among disability groups and business associations.

The Broader Framework of Disability Related Antidiscrimination/Human Rights Legislation

1. Broader Legislative Context for the Americans with Disabilities Act:

a) Federal legislation

In addition to the Americans with Disabilities Act, a number of other federal statutes accord civil rights protections to persons with disabilities. These Acts, in combination with income maintenance legislation and legislation mandating specific programs and services, together form a comprehensive legal framework for the full participation and independent living of people with disabilities in America. The following paragraphs contain a brief summary of the major pieces of federal civil rights legislation within this framework.

The Rehabilitation Act, considered to be one of the major "building blocks" for the ADA, prohibits discrimination on the basis of disability in programs conducted by U.S. federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. Under section 504 of the Act, each federal agency issues regulations applying both to its own programs and to entities receiving financial aid; requirements common to these regulations include "reasonable accommodation", program accessibility, "effective" communication and accessible facility design and construction. The application of section 504, as amended by the Civil Rights Restoration Act, extends globally to whole institutions, rather than being limited to individual departments which actually receive federal funds. It includes a broad definition of disability, provided that individuals are "otherwise qualified" and requires reasonable accommodation. Sections 501 and 503 require affirmative action plans for the hiring and advancement of persons with disabilities in the federal government and by any contractors receiving federal contracts of $2,500 or more.

Under the Fair Housing Act, as amended in 1988, it is unlawful to discriminate in any aspect of selling or renting housing because of an individual's disability. The Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities (e.g., to allow for the presence of guide dogs in a no-pet facility) and requires landlords to allow tenants with disabilities to make reasonable access-related modifications to housing. The Act further requires that multiple family housing with four or more units be designed to allow access for persons with disabilities.

The Air Carrier Access Act prohibits discrimination in air transportation against "qualified" individuals with physical or mental disabilities. The Act applies only to air carriers that provide regularly scheduled services for the public, and its coverage extends to such issues as appropriate boarding assistance and accessibility features in airports and aircraft design. It is administered by the U.S. Department of Transportation.

The Civil Rights of Institutionalized Persons Act authorizes the U.S. Attorney General to investigate conditions in state and local institutions including publicly operated nursing homes and institutions for people with psychiatric or developmental disabilities. Under the Act, the Attorney General may initiate civil law suits where there is reasonable cause to believe that conditions are "egregious or flagrant", that they are subjecting residents to "grievous harm", and that they are part of a "pattern or practice" of resistance to residents' full enjoyment of constitutional or Federal rights, including title II of the ADA and section 504 of the Rehabilitation Act.

The Individuals with Disabilities Education Act requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs. The Act requires public school systems to develop appropriate Individualized Education Programs for each child, according to specifically mandated procedures and with appropriate involvement of teachers, parents, agency representatives and the child her/himself.
The Architectural Barriers Act requires that buildings which are designed, constructed or altered with federal funds or leased by a federal agency, comply with federal standards for physical accessibility. The Act applies only to architectural standards in new, newly altered or newly leased facilities, and does not extend to address the activities conducted in these facilities.

b) State and local legislation

Various state and local antidiscrimination laws in the U.S. have protection for persons with disabilities extending beyond those mandated by the ADA. For example, although companies employing fewer than 15 workers are exempt from the provisions of the ADA, particular state and district laws prohibit discrimination by significantly smaller employers. Other local statutory provisions allow for disabled persons who sue for discrimination to claim damages as well as back pay and legal fees, remedies not readily available under the ADA. As well, some local governments have introduced affirmative action plans requiring contractors to employ disabled workers.

2. The Canadian Framework for Disability Equality Rights

The major difference distinguishing Canada from the United States in terms of human rights protections arises from jurisdictional divisions. For the most part, Canadian federal authority does not extend into such realms as education, local transit and the vast majority of commercial and industrial activity -- all of which fall under the jurisdiction of individual provinces/territories.
Within the Canadian context, human rights protections for people with disabilities consist of constitutional entitlements and federal and provincial statutory protections. A brief overview at each of these levels follows.

a) The Canadian Constitution

Canada has the distinction of specific constitutional language guaranteeing equal benefit and equal protection of the law for persons with physical or mental disabilities. Section 15 of the Constitution Act of Canada provides:

(1) Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, mental or physical disability.

Because of its constitutional nature, this guarantee of equality rights applies to all levels of legislative authority in Canada. Its reach is therefore broader in that respect than that of civil rights legislation such as the Americans with Disabilities Act, given its application to all Canadian law, including taxation, immigration, education, health care and even human rights protections.

b) Canadian Federal Legislation

Under the Canadian Human Rights Act, it is prohibited for any employer or provider of a service that falls within federal jurisdiction to discriminate on the basis of a person's physical or mental disability. Employers and service providers within the federal jurisdiction include Federal departments, agencies and Crown corporations, the post office, chartered banks, airlines, television and radio stations, interprovincial communications and telephone companies, interprovincial buses and railways and other federally-regulated industries, such as certain mining operations. The Act is administered by the Canadian Human Rights Commission, which investigates complaints, attempts mediation as appropriate and, when the Commission is satisfied that there is evidence to support the allegations, provides legal representation for the complainant at a Tribunal inquiry. All of the Commission's services are provided in the public interest at no cost to the parties. A finding of discrimination by a Human Rights Tribunal may result in various kinds of remedy, including an order to end the discriminatory practice or to implement positive measures to correct the situation, and/or compensation for costs, damages, lost wages, hurt feelings or harm to the victim's self-respect. All decisions of the Canadian Human Rights Tribunal are appealable to the Federal Court of Appeal and ultimately to the Supreme Court of Canada.

Under the Employment Equity Act, the federal public service, Crown corporations and federally-regulated private sector employers with 100 or more employees must examine their workforces to determine whether any of the designated groups (including persons with disabilities as one such group) is under-represented, taking into consideration factors such as qualifications, location and industry. Each employer must identify and remove barriers to the employment of persons with disabilities and, where necessary, establish goals for improving their representation. The Act is administered by the Canadian Human Rights Commission.

Under the Canadian Transportation Act, the Terms and Conditions of Carriage regulations include specific prescriptive measures which must be taken by air carriers in meeting the requirements of disabled travelers. The regulations provide protections comparable to those specified in the Air Carriers Access Act, as well as additional provisions for mandatory sensitivity and awareness training of staff, and mandatory assistance with disabled travelers' carry-on luggage or equipment.

c) Canadian Provincial and Territorial Legislation

Each provincial and territorial jurisdiction in Canada has a Human Rights Code which provides protection from discrimination, harassment and reprisal in a manner similar to that described federally, with publicly funded investigation, conciliation and legal representation at any Tribunal inquiry or subsequent appeal in the courts. Each of these Codes prohibits discrimination on the basis of mental or physical disability and extends to all realms of private or public activity within the province or territory (i.e., employment, accommodation and the provision of goods and services). Many of these statutes contain primacy provisions which specify that the Code takes precedence over conflicting provisions in other provincial/territorial legislation.

In addition to human rights legislation, which applies to all educational facilities in the province or territory, each provincial and territorial jurisdiction also has an Education Act or School Act governing the provision of education at elementary and secondary levels. These Acts vary in their language and content, as well as in the interpretations which have been made in the courts. However, all contain specific provisions regarding the education of disabled students and most provide for universal access to education irrespective of disability.

Basic access standards for all public buildings are found in the Building Code for each Canadian jurisdiction, whether federal, provincial or territorial. These Codes provide detailed minimum specifications for "barrier-free" access for persons with disabilities to all new building construction, extension or material alteration, with the exception of private residential housing.

Further Directions

This report has attempted to provide an overview of the ADA as it has been implemented in the US. It is not an exhaustive evaluation of the ADA, nor is it a guide to the applicability of the ADA to a Canadian context. Nevertheless, some general observations may be made:

Available data indicate that accommodating the particular requirements of people with disabilities in employment is good business practice with a significant return on investment.

The educational and technical assistance services put in place to implement the Act have been well-received, and were widely viewed by interview respondents for this research as making useful contributions to the social and economic integration of Americans with disabilities.

Definitional ambiguities and debates about reasonable accommodation and undue hardship have made the nature and extent of obligations under the Act unclear. These problems, together with limited administrative funding for processing complaints and for taking cases to court, have weakened enforcement and incentives for voluntary compliance.

The administration of the Act is dispersed across a range of federal agencies, yet there is little overall coordination of administrative responsibilities

The lack of significant survey data and the relative newness of the Act make it difficult to measure the overall effectiveness of the ADA.
More adequate and directed funding would strengthen the ability of the departments responsible for implementation to use the full extent of their authority to implement the ADA.

A range of indicators suggest that the ADA has had many positive benefits for people with disabilities in the US. At the same time, it is evident that there are also weakness in the ADA and that it has proven disappointing in some respects.

Instructive for the future would be to examine the ADA to determine specific provisions that have the potential to complement and enhance the guarantee of equality available to Canadians with disabilities under the Charter of Rights and Freedoms, protections against discrimination under human rights codes, and entitlements granted under other legislation. Such an analysis would do well to include:

1. A more detailed analysis of the differences between current approaches to rights, discrimination and entitlements in Ontario and the approach to civil rights embodied in the ADA.

2. A systematic analysis of the gaps in the existing system in Ontario, including an identification of measures that are and are not working effectively, with a view to how an instrument such as the ADA could complement the present system.

3. A consideration of potential administrative arrangements for an Ontario law incorporating provisions on the lines of the ADA, especially in light of the existing administration of the Ontario Human Rights Code.

4. An outline of the requirements for an information system to systematically gather on a regular basis pertinent data on disability and on the inclusion and rights of people with disabilities in Ontario.

Such additional information and analysis could serve as basis for capitalizing on the strengths of the ADA.

PLEASE NOTE: The Footnotes from this document have been omitted. Should anyone wish to view the footnotes, you may download the Roeher Report by following one of these links.

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