ADA + ability + accommodations = access to employment - Americans with Disabilities Act

As Chief Executive Officer of a major health and human services organization in Washington, DC, I am frequently invited to join colleagues from other agencies or government officials for luncheon meetings. Accepting these invitations almost always entails negotiating where we can meet. More often than not, their first choice of a restaurant is one that is inaccessible for someone like me who uses an Amigo but who, with some difficulty, can climb stairs.

When I travel around the country visiting our affiliates, I also am continually confronted by the issue of hotel accessibility. Granted, the rooms I book are "handicapped accessible" but that does me little good if my way into the restaurants is barred by steps and when hotel bars are eigher 4 feet above or 3 feet below the rest of the hotel lobby.

My office and my home are accessible, but I can't take my wife to the movies, because the entrance to the theater near our home is securely "guarded" by a weird array of staircases.

I am used to coping with challenges like these in my daily life, but I cannot--and will not--get used to the fact that thousands of people like me are essentially barred by attitudes and architecture from finding jobs. United Cerebral Palsy Associations' affiliates will find competitive employment this year for more than 1,000 men and women with disabilities. However, they have nearly four times that number, 3,888 to be exact, waiting for employment--men and women who are qualified, ready, willing, and able to work, but who have not yet been hired for regular jobs in the community. The factors keeping them from finding competitive employment are similar to those Karen Meyer, ADA Administrator for the National Center for Access Unlimited, Chicago, who assisted me in this article, has experienced in her professional life:

In 1977, Karen applied for an entry level professional position in the Division of Senior Citizens and Handicapped in the Mayor's Office, City of Chicago, and was interviewed by the Director of the Handicapped Division. Twenty minutes into the interview, the Director said, "I am sorry; we just cannot hire you due to your deafness. The jobs we have all require heavy telephone work."

In 1979, she again applied for an entry level professional position in the same office. This time she was interviewed by several managers within the office. She was hired for a position that required an enormous amount of telephone work, but no accommodations were made to provide her with an interpreter. One year later, she was promoted to supervisor of the entore intake section with duties which included supervision, telephone intakes, and face-to-face interviews, but still no provisions were made for interpreting; she had to "make do." Despite these frustrations, her job performance was rated highly and she was nominated for two outstanding employee awards. Working without an interpreter, she had to work twice as hard as her hearing co-workers, and that was a crime.

Experiences like these epitomize all the reasons we needed, demanded, worked for, and finally passed the Americans with Disabilities Act of 1990 (ADA), a clear and comprehensive federal mandate that will put an end to discrimination against people with disabilities and help them to move forward into the economic and social mainstream of American life. Along with the rights protected under ADA, however, comes the responsibility to ensure that access to businesses, public accommodations, transportation, and telecommunications is indeed granted to all. It's time now to move beyond advocacy into implementation; if we who have disabilities don't provide the leadership, who will?

I am proud of the United Cerebral Palsy Association's commitment to people with disabilities, a commitment which has led to a major new UCPA initiative to provide businesses with technical assistance in complying witht the mandates of ADA. In a joint venture with Adaptive Environments Center in Boston, UCPA has created the National Center for Access Unlimited, a resource that provides consultation, education, information, training, and technical assistance to business, industry, nonprofit agencies, and people with disabilities and their families on rights and responsibilities mandated by ADA. The National Center for Access Unlimited's goal is to eliminate barriers in the work site, the market place and the community that deny people with disabilities access to employment, businesses, public buildings, telecommunications, education, and cultural events. To achieve this goal, we must work with the business community to identify specific barriers and develop strategies to overcome them.

We must also work with the business community to dispel some misconceptions about what compliance with the Americans with Disabilities Act will entail. In the area of employment, for example, concern has been expressed about what, exactly, constitutes "reasonable accommodations" or "undue hardship." What changes, if any, must employers make in hiring or personnel practices? These are the kinds of questions and concerns that the National Center for Access Unlimited is designed to address on a case-by-case basis; and it is in areas like these that a dialogue between people with disabilities and the business community is essential for all of us to work productively and comfortably together.

As a start to developing just such a dialogue, following are some of the most common misconceptions about how the Americans with Disabilities Act will affect employers:

Common Misconceptions

1. ADA will require employers to hire persons with disabilities. ADA does not require employers to hire people with disabilities, but it does require employers to re-examine their thinking about what functions of a job are truly essential. ADA includes certain protections for people who have a disability and who are qualified to do a job. The Act refers to a qualified individual--someone who, with reasonable accommodations, can perform the essential functions of the job. Th phrase, essential functions, refers to job tasks that are fundamental, not marginal. For example, a requirement found in a data processing job description that all data processors have good speech and hearing so that they will be able to use the telephone occasionally to call for repairs or information actually relates to a very minor responsibility. The use of the telephone is not an essential function of this job; a person skilled in data processing who also has a speech or hearing impairment can perform the essential tasks required by this job and would be an excellent candidate for this position.

2. Reasonable accommodations will subject me to unreasonable demands. Under ADA, employers do have a responsibility to provide reasonable accommodations to qualified people with disabilities unless it can be proven that to do so would impose undue hardship on the business. Reasonable accommodations include such things as providing interpreters for people who have hearing impairments, making simple structural changes to the work site to accommodate people who use wheelchairs for mobility, or flexibility in arrival and departure times for people who rely on paratransit schedules. If a person with a hearing impairment wants to have an interpreter present during a job interview, for example, it is that person's responsibility to inform the interviewer that an interpreter will be needed, and it is the interviewer's responsibility to provide one--unless it can be proven that this would in some way harm the business.

Another common situation involving reasonable accommodations occurs when a person who is visually impaired is hired for a job that includes conducting site visits throughout the city. In this case, the employer is responsible for providing transportation to the various sites for the person who is visually impaired. Having someone drive that employee to and from the sites as required would be a reasonable accommodation. This does not mean, however, that the employer must provide transportation to and from work for the employee. That is the employee's responsibility, unless transportation to and from work is a service provided to all employees as part of their benefit package.

The issue with reasonable accommodations is when and what accommodations are considered reasonable, and this is a good and fair question. Employers are only required to make reasonable accommodations if the disability is known, if the accommodation requested is reasonable and if the employee's disability truly exists.

Employers may also suggest that accommodations be made. For example, before Karen started working with the National Center for Access Unlimited, she worked in the Illinois Attorney General's office as the Deputy Chief of the Disabled Persons Advocacy Division. Two of her most important duties were extensive telephone work and attending a variety of meetings. The Division's budget was too small to justify hiring a full-time interpre-ter, but her employer decided that hiring an interpreter for 20 hours a week would be both reasonable and feasible.

There are many similar cases. People who have limited mobility and use wheelchairs may need some minor modifications in the workplace (e.g., raising desks a couple of inches by inserting blocks under the desk legs to accommodate wheelchairs, or installing grab bars in the rest room). If the accommodations require complete remodeling of the location, however, then the employer will have to determine whether the remodeling is affordable or whether it would impose undue hardship on the business. In a situation in which an employer has several facilities, one of which is accessible, and an employee with a disability is working in one of the inaccessible buildings, the employer must try to accommodate the employee's needs by allowing him/her to change buildings, provided that this would not alter the essential functions of the job.

ADA also specifies that the term--reasonable accommodation--includes job restructuring, part-time or modified work schedules and reassignment to vacant positions. Many people with disabilities must depend on the very limited availability and scheduling of paratransit systems to get to work. These systems are inadequate because there simply are not enough vehicles to provide the needed service during peak hours. Many paratransit riders need to modify their work schedules to allow them access to transportation to and from their places of employment. In recent years, employers have gained a new awareness of the need for flextime for working parents or those who are responsible for the care of spouses or elders. Under the provisions of ADA, people with disabilities will be considered for these kinds of modifications as well. Employers may not reduce the number of hours an employee with a disability works because of transportation difficulties, but the concept of reasonable accommodations will dictate that that employee be given consideration for a flexible schedule, as long as that employee maintains the same number of working hours as are required of any worker in that position.

In situations where, because of a disability, an employee is no longer able to perform the essential functions of his/her current job, a transfer to another, vacant job for which that person is qualified is also considered a reasonable accommodation (a 55-year-old air traffic controller who experiences a hearing loss and can no longer understand speech through the headset--good oearing being an essential function of this job--would fit into this category). If there is a position available in the same agency that requires visual interpretation and reporting and the employee qualifies, then the employer must make every effort to transfer the employee to that vacant position.

3. Complying with the mandates of ADA will force me out of business. The Americans with Disabilities Act does not purport to set requirements that will result in bankruptcy, closing facilities or outlets, or even a loss of jobs. What it will do is provide a system of checks and balances so that employers and employees can negotiate accommodations that will be in the best interests of both parties.

Undue hardship can have many interpretations under the Americans with Disabilities Act. Indeed, the term will probably be concretely defined only after the implementing regulations are issued by administrative agencies such as the Equal Employment Opportunities Commission (EEOC) and, most likely, after extensive litigation. When we speak of significant difficulty or significant expense, we must define it individually: larger, more profitable companies will clearly have more difficulty justifying that the cost of an accommodation constitutes undue hardship than will smaller, newer businesses. For the most part, however, we expect that costs associated with reasonable accommodations will be modest. Paul Hearne, President of the Dole Foundation for Employment of People with Disabilities, estimates that 85 percent of the changes needed to accommodate people with disabilities will cost less than $500.

Furthermore, in order to help businesses, especially small ones, comply with the new Act, various federal agencies will be providing technical assistance and training, much like that offered to federal recipients under Section 504 of the Rehabilitation Act of 1973. IRS regulations also permit a tax credit for small businesses to cover expenses associated with providing reasonable accommodations for people with disabilities. Another tax incentive provides for assistance in covering costs incurred for the removal of certain architectural and transportation barriers. These benefits are designed to offset the costs to employers and permit them to profit from providing access to their facilities and their services. Put another way, these benefits will keep employers from suffering undue hardship while providing reasonable accommodations.

In the year 1992, Americans will see many changes in the workforce, changes resulting from such diverse pressures as the unstable economy, international politics, increasingly advanced technology, skills of the labor force, and, finally, the prohibition of discrimination against people with disabilities.

Title I of the Americans with Disabilities Act, which governs employment, provides a blueprint for employers, employees and people with disabilities that, if followed, will enable us to build a strong foundation for the future. The key concepts of Title I discussed above, blended wisely and well, will act as the cement for this foundation. Although we will never be able to forget that people with disabilities have been subjected to many forms of discrimination in the past, we can use what happened to us and to others like us as lessons and move forward into the future with the Americans with Disabilities Act as our guide.

COPYRIGHT 1990 U.S. Rehabilitation Services Administration
COPYRIGHT 2004 Gale Group