ADA Basics: Statute and Regulations
On July 26, 1990, President George H. W. Bush signed into law the Americans with Disabilities Act (“ADA”) saying these words, “Let the shameful wall of exclusion finally come tum
ADA Basics: Statute and Regulations
On July 26, 1990, President George H. W. Bush signed into law the Americans with Disabilities Act (“ADA”) saying these words, “Let the shameful wall of exclusion finally come tumbling down.”1 One of the most important civil rights law to be enacted since the Civil Rights Act of 1964, the ADA prohibits discrimination against people with disabilities.
What does the ADA mean for state and local governments in the delivery of their programs, services, and activities, as well as their employment practices? In the broadest sense, it requires that state and local governments be accessible to people with disabilities.
Accessibility is not just physical access, such as adding a ramp where steps exist. Accessibility is much more, and it requires looking at how programs, services, and activities are delivered. Are there policies or procedures that prevent someone with a disability from participating (such as a rule that says “no animals allowed,” which excludes blind people who use guide dogs)? Are there any eligibility requirements that tend to screen out people with disabilities (such as requiring people to show or have a driver’s license when driving is not required)?
Before you begin your accessibility audit, you need to understand the answers to several basic questions.
- What is the ADA, and are there any other laws or regulations I need to know about to do an accessibility evaluation?
- What is a “disability” under the ADA, and is having one enough to be covered by the ADA?
- What types of barriers are there to accessibility?
- What are states’ and local governments’ obligations under the ADA?
1 Speech of President George H.W. Bush at the signing of the Americans with Disabilities Act of 1990, reprinted at http://www.eeoc.gov/ada/bushspeech.html.
B. The Legal Landscape
Before looking at the individual parts of the ADA, it’s best to look at the whole picture. Having an overview of the laws, regulations, and other legal requirements helps to put everything in context.
The Rehabilitation Act of 1973
Broader than any disability law that came before it, Section 504 of the Rehabilitation Act made it illegal for the federal government, federal contractors, and any entity receiving federal financial assistance to discriminate on the basis of disability.2 Section 504 obligates state and local governments to ensure that persons with disabilities have equal access to any programs, services, or activities receiving federal financial assistance. Covered entities also are required to ensure that their employment practices do not discriminate on the basis of disability.
The Americans with Disabilities Act of 1990
The ADA is built upon the foundation laid by Section 504 of the Rehabilitation Act. It uses as its model Section 504’s definition of disability and then goes further. While Section 504 applies only to entities receiving federal financial assistance, the ADA covers all state and local governments, including those that receive no federal financial assistance. The ADA also applies to private businesses that meet the ADA’s definition of “public accommodation” (restaurants, hotels, movie theaters, and doctors’ offices are just a few examples), commercial facilities (such as office buildings, factories, and warehouses), and many private employers.
While the ADA has five separate titles, Title II is the section specifically applicable to “public entities” (state and local governments) and the programs, services, and activities they deliver. The Department of Justice (“DOJ” or the “Department”), through its Civil Rights Division, is the key agency responsible for enforcing Title II and for coordinating other federal agencies’ enforcement activities under Title II.
In addition, the Department has the ability to enforce the employment provisions of Title I of the ADA as they pertain to state and local government employees. DOJ is the only federal entity with the authority to initiate ADA litigation against state and local governments for employment violations under Title I of the ADA and for all violations under Title II of the ADA.
Some Helpful Tools
The Department’s Title II regulations for state and local governments are found at Title 28, Code of Federal Regulations, Part 35 (abbreviated as 28 CFR pt. 35. The ADA Standards for Accessible Design are located in Appendix A of Title 28, Code of Federal Regulations, Part 36 (abbreviated as 28 CFR pt. 36 app. A). Those regulations, the statute, and many helpful technical assistance documents are located on the ADA Home Page at www.ada.gov and on the ADA technical assistance CD-ROM available without cost from the toll-free ADA Information Line at 1-800-514-0301 (voice) and 1-800-514-0383 (TTY).
The ADA Standards for Accessible Design (the ADA Standards)
The ADA Standards for Accessible Design, or the “ADA Standards,” refer to the requirements necessary to make a building or other facility architecturally (physically) accessible to people with disabilities. The ADA Standards identify what features need to be accessible, set forth the number of those features that need to be made accessible, and then provide the specific measurements, dimensions and other technical information needed to make the feature accessible.
Caution: You may hear the acronym ADAAG used to refer to the ADA Standards. ADAAG stands for the Americans with Disabilities Act Accessibility Guidelines, which are issued by the United States Architectural and Transportation Barriers Compliance Board (called the “Access Board” for short). ADAAG is not the same as the ADA Standards