The Americans with Disabilities Act of 1990.
In his comments on the South Lawn of the White House to nearly 2,000 supporters of the disability rights legislation, the President said, "This Act is powerful in its simplicity. It will ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard--independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream."
This article summarizes who is covered by the provisions of ADA and what protections are offered in the areas of employment, public accommodations, public transportation and services, and telecommunications.
Definition of People with
The Act's definition of people with disabilities is based on the definition in Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against people with disabilities in a range of areas, such as employment, social services and education, by entities that receive federal funds.
Like Section 504 of the Rehabilitation Act, ADA defines a person with a disability as someone with a physical or mental impairment that substantially limits that person in some major life activity, someone with a record of such a physical or mental impairment or someone who is regarded as having such an impairment.
Interpretation of the Definition
Since this Section 504 definition of a person with a disability has been in effect since 1973, it has been further clarified by both regulations and case law. Some of the clarifications include:
* Meaning of Impairment/Major Life Activity--This covers only individuals with impairments that are serious enough to affect a major life activity, such as walking, talking, breathing, or working.
* Meaning of "Record" of Impairment--Those covered by this definition include, for example, individuals with a history of mental illness, heart disease or cancer, who no longer have the disease but who are discriminated against because of their record of an impairment.
* Meaning of "Regarded" as Having Impairment--This covers, for example, someone who has significant facial burns, which do not actually limit that person in any major life activity but nonetheless cause him or her to be discriminated against because of the disfigurement.
The Use of A Functional Definition
In using the Section 504 definition, ADA uses a functional definition of disability rather than a list of every possible medical disability. Such lists have never been used in disability legislation, due to both the difficulty of ensuring the comprehensiveness of such a list and the fact that some medical conditions may not yet be discovered or prevalent at the time legislation is passed.
Coverage of AIDS and HIV
Since 1973, courts have consistently held that those with AIDS and those infected with HIV are covered under the Section 504 definition of disability. This Section 504 coverage has ensured that people with AIDS or those infected with HIV have been protected against discrimination in employment, education and services, in cases where the entities have received federal funds.
Under these prior court interpretations, it is clear that those with AIDS and those infected with HIV will also receive protection under ADA.
However, consistent with the law that has existed for years under Section 504, this new act provides that any individual who poses a direct threat to the health or safety of others does not receive protection under ADA, which defines the term "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."
Exclusion of Drug Users
The one difference between the current disability definition in Section 504 of the Rehabilitation Act and the one in ADA is that ADA explicitly excludes from the definition any individuals who are current illegal users of drugs. By virtue of provisions of ADA, the definition of disability in Section 504 will henceforth exclude current illegal users of drugs.
However, ADA explicitly retains protections for those individuals who have successfully completed or are currently participating in drug treatment programs and are no longer engaging in the illegal use of drugs. It also provides that an employer may adopt reasonable policies, including, but not limited to, drug testing designed to ensure that an individual involved in a treatment programs is no longer engaging in illegal drug use.
The Act states that, for the purposes of this statute, "homosexuality" and "bisexuality" are not impairments, and as such are not disabilities under the Act.
The Act further states that the term "disability" does not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders and other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.
The employment discrimination provisions of the Act are based on Title VII of the Civil Rights Act of 1964, which bars job discrimination on the basis of race, color, religion, sex, or national origin by private employers, and on Section 504 of the Rehabilitation Act of 1973, which bars job discrimination against people with disabilities by entities receiving federal funds.
Employers Covered by Act
ADA's employment provisions do not take effect until 2 years after the date of enactment. Upon the effective date, employers with 25 or more employees will be covered. Employers with 15 or more employees--the same scope of coverage as under Title VII of the Civil Rights Act--will be subject to the Act 2 years later.
Discrimination Prohibited by Act
The Act's definitions of what constitutes job discrimination against people with disabilities are the same as the definitions used in Section 504 of the Rehabilitation Act which have been in effect since 1973.
ADA prohibits any covered employer from discriminating against "any qualified individual with a disability" because of such individual's disability. This prohibition applies to all aspects of employment--including application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; and other terms, conditions and privileges of employment.
Like Section 504, the Act defines the term "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." The Act specifies that "consideration shall be given to the employer's judgment as to what functions of a job are essential."
Like Section 504, the Act provides that job discrimination includes not making "reasonable accommodations" for a person with a disability if those accommodations would allow the person to perform the essential functions of the job--unless those accommodations would impose an "undue hardship" on the employer.
The Act stipulates that "reasonable accommodations" may include such steps as making existing facilities accessible, the acquisition or modification of equipment or devices, the provision of qualified readers or interpreters, or the appropriate adjustment of examinations or training materials.
The "Undue Hardship" Standard
As indicated earlier, under the Act (as under Section 504), an employer is not required to make a "reasonable accommodation" if the accommodation would impose an "undue hardship" on the employer. The Act defines "undue hardship" as "an action requiring significant difficulty or expense."
In determining whether an action is an undue hardship on an employer, the Act specifies that the following factors must be considered:
* The nature and cost of the accommodation needed;
* The financial resources of the specific facility involved (even when the facility is part of a larger company); the number of employees employed at such facility; the effect on the specific facility's expenses and resources; and other possible impacts on the facility's operation; and
* The overall financial resources of the parent company and its type of operations, including the composition, structure and functions of its work force.
Defenses by Employer
It may be a defense to a charge of discrimination under this Act for an employer to show that an application of qualification standards, tests or selection criteria that tend to screen out or otherwise deny a job or benefit to a disabled individual is job related and consistent with business necessity.
The Act also includes as a defense to a charge of discrimination that an employer need not hire an applicant or retain an employee who poses a direct threat to the health and safety of other individuals in the workplace. The term "direct threat" is defined to mean "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."
Medical Examinations and Inquiries
The Act prohibits employers from requiring a medical examination and prohibits inquiries as to whether an employee has a disability or the nature or severity of the disability unless such examination or inquiry is shown to be job related and consistent with business necessity.
The Act explicitly authorizes employers to undertake post-offer/pre-entrance medical examinations--so long as all entering employees in a particular category are subjected to such an examination regardless of disability and the results are kept confidential.
The Act also explicitly authorizes employers to conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
Treatment of Drug and Alcohol
The Act explicitly excludes current users of illegal drugs from the definition of individuals with disabilities and, thus, from the law's protection against discrimination. However, it retains protection for individuals who have participated successfully in drug treatment programs and are no longer engaging in the illegal use of drugs.
The Act contains provisions that expressly allow employers to:
* Prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees;
* Require that employees shall not be under the influence of alcohol or drugs at the workplace; and
* Hold a drug user or alcoholic to the same qualifications and performance and behavioral standards to which all employees are held, even if unsatisfactory performance or behavior is related to the individual's drug use or alcoholism.
The Act also provides that nothing in its provisions prohibits or restricts employers from conducting drug testing for illegal use of drugs or from making employment decisions based on such test results.
Enforcement and Remedies
The employment section of the Act provides that the same enforcement procedures and remedies as are used under Title VII of the Civil Rights Act are to be used by individuals with disabilities who are subject to employment discrimination.
Thus, the Equal Employment Opportunity Commission will enforce the Act's employment provisions, and the same Title VII remedies as are available for persons based on race, color, religion, sex, or national origin will be available for people with disabilities.
ADA prohibits privately operated public accommodations from discriminating against people with disabilities, just as the Rehabilitation Act of 1973 prohibits discrimination by the Federal Government and by entities receiving federal funds.
The Act lists 12 categories of establishments that are considered public accommodations under the Act. The categories cover such establishments as hotels, restaurants, theaters, auditoriums, convention centers, doctors' offices, pharmacies, retail stores, public transportation terminals, museums, libraries, parks, zoos, and recreation centers.
Discrimination Prohibited by ADA
The Act provides that no individual shall be discriminated against on the basis of disability in the full nad equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation.
In addition to prohibiting public accommodations from excluding or refusing to serve an individual on the basis of his or her disability, the Act specifies that public accommodations cannot provide an unequal benefit to a person with a disability. In addition, public accommodations cannot provide a separate benefit to a disabled individual, unless the facility can show that a separate benefit is necessary in order to provide an opportunity to the disabled person that is as effective as that provided to others.
Physical Access Requirements
The Act contains a number of provisions to improve the physical accessibility of privately operated public accommodations.
Under the Act, newly constructed public accommodations and commercial facilities must be "readily accessible to and usable by" people with disabilities, unless the facility can show that it is structurally impracticable to meet this requirement. This requirement goes into effect for buildings designed for first occupancy 30 months after enactment.
The "readily accessible to and usable by" standard is the same standard that was used in the Rehabilitation Act of 1973, as well as subsequent legislation. As interpreted by regulations and the courts, this standard does not require total accessibility in every part of every area of a facility. Rather, the standard has been held to mean such features as accessible routes to and throughout a facility, accessible entrances, usable bathrooms, and usable water fountains.
The Act also provides an exemption to the "readily accessible" standard. It provides that elevators are not required in new construction or alteration of facilities that are less than three stories or have less than 3,000 square feet per story, unless the building is a shopping center, shopping mall, health care provider, or type of facility that the Attorney General determines requires elevators.
Alterations to Existing Facilities
Under the Act, when alterations are made to existing facilities that could affect the usability of the facility, the alterations must be made in such a manner that, to the maximum extent feasible, the altered portion is "readily accessible to and usable by" people with disabilities.
When alterations are made to a primary function area, a path of travel to the area and facilities serving the area would have to be made accessible, as long as such accessibility changes are not disproportionate to the overall alterations in terms of cost and scope.
The Act's requirements for providing physical access to existing facilities are much more limited than for new construction or major alterations.
Under ADA, places of public accommodation are required to remove structural barriers in existing facilities only if such removal is "readily achievable." The Act defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense."
In determining whether a barrier removal is readily achievable for a facility, the Act specifies that several factors relating to the size and budget of the business must be considered--exactly the same factors used in determining what is an "undue hardship" in the employment section of the Act. These factors are as follows:
* The nature and cost of the barrier removal needed;
* The financial resources of the specific facility involved (even when the facility is part of a larger company); the number of employees employed at such facility; the effect on the facility's expenses and resources; and other possible impacts on the facility's operation; and
* The overall financial resources of the parent company and the type of its operations, including the composition, structure and functions of its work force.
In addition to the Act's provisions requiring public accommodations to provide physical access to people with disabilities, the Act provides that public accommodations should also employ additional means for ensuring that disabled people can be provided equal enjoyment of a facility's services and benefits.
Auxiliary Aids and Services
The Act requires that public accommodations provide "auxiliary aids and services" to enable people with disabilities to use and enjoy the goods and services available at a facility--unless the facility can demonstrate that taking such steps would represent "an undue burden" or would "fundamentally alter" the nature of the service or goods it provides.
Auxiliary aids and services refer to such things as large print materials, tape recordings, captioning, and other similar services and devices.
In addition, the Act provides that, in facilities that are not accessible and where barrier removal is not readily achievable, alternative methods should be provided to serve disabled people if such alternative methods are "readily achievable." In determining what alternative methods are readily achievable by a particular business, the same factors would be considered that are used in determining what barrier removals are readily achievable--the series of factors described above relating to the size and budget of both the particular facility and the parent company.
Enforcement and Remedies
The public accommodations section of the Act provides that the same enforcement procedures and remedies as are used under Title II of the Civil Rights Act are to be used by individuals with disabilities who are subject to discrimination by public accommodations.
Title II remedies are restricted to injunctive relief--such as an injunction to require a public accommodation to undertake a "readily achievable" barrier removal.
In addition to private lawsuits brought by disabled individuals, the public accommodations section of the Act also authorizes the Justice Department to bring actions against a "pattern or practice" of discrimination. Under the Act, in such "pattern or practice" cases, the court may:
* Grant the same type of injunctive relief available in private suits;
* Award monetary damages to persons aggrieved if requested by the Justice Department (with the stipulation that such monetary damages cannot include punitive damages); and
* Impose civil penalties of not more than $50,000 for the first violation, and not more than $100,000 for a subsequent violation, if the court determines that such penalties are necessary "to vindicate the public interest."
In addition to seeking injunctive relief for discrimination that has already occurred, the Act provides that an action for injunctive relief also can be brought by any person who has reasonable grounds for believing that construction of a new building or alterations to an existing building are about to begin that would not provide access to those with disabilities.
The provisions of the public accommodations section of the Act take effect 18 months after the date of enactment.
In general, ADA requires that public transit authorities; private intercity bus services; Amtrak; rapid, light, and commuter rail services; and other types of transportation systems make their systems accessible to people with disabilities, including people who use wheelchairs. The measure does not address air transportation since legislation was enacted in 1986 (the Air Carrier Access Act; PL 99-435) which specifically addresses airline accessibility.
The Act requires public transit authorities to acquire accessible vehicles and make certain alterations to transportation facilities to make the facilities accessible to people with disabilities, including people in wheelchairs. The measure also requires that, as soon as practicable but no later than 5 years after enactment, at least one vehicle on each rapid rail or light rail train be accessible to people with disabilities.
When purchasing or leasing new buses, rapid rail vehicles or light rail vehicles, the measure requires that transit authorities acquire new vehicles that are readily accessible to, and usable by, people with disabilities, including people who use wheelchairs. The measure does not require that existing vehicles be retrofitted to make them accessible. Requiring that new vehicles be accessible, however, will ensure that an accessible public transit system is phased in as new vehicles are purchased to gradually replace older vehicles.
The requirement that new vehicles be accessible became effective for all such vehicles purchased or leased beginning 30 days after the laws enactment. The Department of Transportation (DOT) may temporarily permit a transit authority to acquire buses without wheelchair lifts if lifts are unavailable and if further delay in the acquisition of new buses would significantly impair transportation services.
For purchases or leases of used vehicles, the Act requires only that public transit authorities make a demonstrated good faith effort to locate used vehicles that are accessible. This flexibility will help small and rural communities that often can afford only used buses. It is expected taht as accessible new buses are acquired by larger transit authorities, the number of accessible used buses will also increase and subsequently be available for use in small and rural communities.
The law provides that if transit authorities remanufacture vehicles in order to extend their usable life by 5 years or more, they must include modifications that, to the maximum extent feasible, make the vehicles accessible. Special exceptions are provided for vehicles having historic value, such as cable or trolley cars.
The Act requires that public transit authorities that operate fixed-route systems also provide--as a complement to their fixed-route systems--"paratransit" and other special transportation services to people with disabilities, including people who use wheelchairs. Paratransit services are generally door-to-door service in which small buses or vans are used to transport people unable to use the fixed-route system.
Paratransit services must be provided to eligible people with disabilities, as well as to one person accompanying the disabled person. Eligible people with disabilities include those who are unable to board, ride or disembark from otherwise accessible vehicles without the assistance of another person, those who are unable as a result of their disability to travel to a boarding location on the fixed system and those who are able to use accessible vehicles but want to go on a route not served by accessible vehicles at that time.
The Act requires that paratransit services be provided for areas and hours of operation comparable to those served by the fixed-route system. To the extent practicable, the response time of paratransit services must also be comparable to fixed-route services. If a transit authority is able to demonstrate that providing paratransit would impose an undue financial burden, the authority would only be required to provide such services to the extent they would not impose such a burden.
Small and rural communities often do not operate fixed-route systems, but instead offer "demand-responsive services" in which door-to-door public transportation is provided to the general public on request. The Act requires that public entities operating such demand-responsive systems purchase or lease new vehicles that are readily accessible--unless the system, when viewed in its entirety, has accessible vehicles available so that it provides a level of service to people with disabilities equivalent to the level of service provided to the general public.
Stations and Other Facilities
The Act requires that, beginning 18 months after enactment, all new facilities that are constructed by a transit authority for use in providing public transportation services be readily accessible to people with disabilities, including people who use wheelchairs.
For existing stations and facilities used in providing public transit, the law requires that when alterations are made, such alterations, to the maximum extent feasible, also make the altered portion accessible. If alterations will affect the usability or access to a portion of the facility that houses a primary function of the facility, the Act requires that the path of travel to the altered area, as well as bathrooms, telephones and drinking fountains that serve the altered area, also be made accessible, provided the costs of these associated alterations are not disproportionately high.
The legislation requires that key stations in public transit rapid rail and light rail systems be made readily accessible as soon as practicable, but no later than 3 years after enactment. DOT may extend this deadline up to 30 years for key stations that would need extraordinarily expensive structural changes to, or replacement of existing facilities.
The law provides that transit authorities failing to implement the Act's requirements may considered to have discriminated against people with disabilities and may be sued under Sections 504 and 505 of the 1973 Rehabilitation Act, which provide for injunctive relief.
Amtrak and Commuter Rail Systems
In general, the Act requires that, effective on the date of enactment, new rail cars purchased or leased by Amtrak or by commuter rail systems be readily accessible to and usable by people with disabilities, including people who use wheelchairs. The legislation also requires that at least one car per train be accessible as soon as practicable, but no later than 5 years after enactment.
Like the provisions for public transit authorities, the Act requires that Amtrak and commuter rail operators purchasing or leasing used rail cars only make a demonstrated good faith effort to locate used vehicles that are accessible. Rail cars that are remanufactured in order to extend their usable life by 10 years or more must also include modifications that, to the maximum extent feasible, make the vehicle accessible. Special exceptions are provided for vehicles having historic value.
Although the law generally requires that Amtrak and commuter rail operators acquire new rail cars that are readily usable by people who use wheelchairs, specific requirements concerning wheelchairs for Amtrak rail cars and commuter rail cars differ significantly.
For Amtrak, the Act requires that new single-level passenger coaches be accessible by people who use wheelchairs, have a restroom usable by people with wheelchiars, and have two types of spaces available for people with wheelchairs--a space to park and secure a wheelchairr (for people who wish to remain in their wheelchairs) and a seat to which a passenger using a wheelchair can transfer (with an accompanying space available to fold and store the wheelchair).
New cars having these characteristics, however, are only required to the extent that each train has a specified number of wheelchair-accessible spaces available. As soon as practicable, but no later than 5 years from enactment, the Act requies that each train have a number of each type of wheelchair space equal to at least half the number of single-level coaches in the train. This required number of available x spaces would double within 10 years after enactment.
Every new single-level passenger coach acquired by Amtrak, therefore, would not have to be wheelchair accessible, as long as an adequate number of wheelchair spaces are maintained on each train. To prevent Amtrak from concentrating wheelchair spaces on a small number of coaches, the Act limits the number of spaces that may be on any one coach to two spaces to park and secure wheelchairs and two seats with accompanying spaces to fold and store wheelchairs.
The Act also includes specific rules concerning wheelchair accessibility for single-level and bi-level dining cars and the availability of food services for people who use wheelchairs. In general, the legislation requires that Amtrak provide equivalent food services for people who use wheelchairs.
For commuter rail operations, the law requires that all new rail cars be wheelchair accessible, but provides that wheelchair accessible restrooms are not required unless restrooms are provided for other passengers. The Act does not require that commuter rail cars have seats to which a person using a wheelchair may transfer or accompanying spaces to fold and store wheelchairs.
The Act requires that, beginning 18 months after enactment, al new rail stations be made accessible to people with disabilities. The law also requires that all existing stations used by Amtrak and key existing stations used by commuter rails be made accessible. Amtrak stations must be made accessible as soon as practicable, but no later than 20 years after enactment, while commuter rail stations must be made accessible within 3 years of enactment. For key commuter stations in which raising the entire passenger platform or other extraordinarily expensive structural changes are the only means of attaining accessibility, the deadline for attaining accessibility may be extended up to 20 years.
In cases of alternations made to existing rail facilities, the legislation includes accessibility provisions similar to the Act's requirements concerning alternations made to public transportation facilities.
The law provides that operators failing to implement the Act's requirements may be considered to have discriminated against people with disabilities, and may be sued under Sections 504 and 505 of the 1973 Rehabilitation Act, which provide for courts issuing injunctions.
Public Transportation by Private
The Act stipulates that private firms that provide public transportation services, and which are primarily engaged in the business of transporting people, may not discriminate against people with disabilities. Services covered include intercity bus services, charter and tour services, limousine and taxi services, and private rail services.
The law requires these operations, in acquiring new vehicles (except for automobiles), to purchase or lease vehicles that are accessible to people with disabilities, including people who use wheelchairs. This requirement would be effective for all vehicles purchased or leased beginning 30 days after enactment, except for intercity buses, for which the Act delays the requireent. The requirement would not apply to vehicles acquired for demand-responsive systems (such as charter and tour services), if the operator can demonstrate that their system provides service to people with disabilities equivalent to service provided to the general public.
Entities also may acquire new small vans (with fewer than eight passengers, including the driver) that are not accessible if an operator can demonstrate that their transportation system, when viewed in its entirety, provides services to people with disabilities equivalent to the level of services provided to the general public. Because autos are not included, new taxicabs would not have to be accessible. Taxicab companies, however, would still be liable for discrimination if their drivers refused to pick up a person with a disability.
The Act includes special provisions concerning the accessibility of intercity type buses. In general, entities that operate intercity coaches must make their buses accessible for people with disabilities. Operators would not, however, have to make their buses wheelchair accessible until 6 years after enactment for large operators (such as Greyhound) and 7 years after enactment for smaller operators.
The Act requires the Office of Technology Assessment (OTA) to conduct a study on the accessibility needs of disabled people with regard to intercity type buses and bus services and the most cost effective means for providing access to such buses, particularly for people who use wheelchairs. The report must examine possible design changes to make buses more accessible, including the possible installation of accessible restrooms that will not result in lost seating capacity, and the potential impact that accessibility requirements may have on the continuation of bus services to small and rural communities.
The OTA report must be submitted to the Congress and the Administration within 3 years of enactment. The Department of Transportation, within 1 year of receiving the OTA report, must issue regulations requiring operators of intercity buses to make specified changes to make such buses accessible for people with disabilities, including people who use wheelchairs. These regulations may not require the installation of accessible bathrooms if such installation would result in a loss of seats.
The legislation provides that people with disabilities who believe they have been discriminated against by private operators of public transportation services may sue such operators under Section 204 of the 1964 Civil Rights Act, which provides for injunctive relief.
The Act also permits the Justice Department to bring actions against operators in federal court and to seek civil penalties of up to $50,000 for a single violation and $100,000 for repeated violations.
Private Transportation Services
The Act provides that entities which operate transportation systems, but whose primary business is not transporting people (such as a hotel which runs a shuttle to the airport), may not discriminate against people with disabilities in providing their transportation services.
For entities that operate fixed-route transportation systems, the law requires that new vehicles with a seating capacity of more than 16 passengers (including the driver), which are acquired for use on the system, must be readily accessible to people with disabilities, including people who use wheelchairs. Vehicles with seating capacities of less than 16 passengers that are not accessible may be acquired, provided the entity provides an equivalent alternative transportation service for disabled people.
For entities that operate demand-responsive transportation systems, new vehicles with a seating capacity of more than 16 passengerss (including the driver) must be readily accessible, unless the operator can demonstrate that its transportation system, when viewed in its entirety, provides a level of service to people with disabilities that is equivalent to the level of service provided to the general public.
Intercity buses that are acquired for either type of system must meet only the Act's general requirements that they be accessible to people with disabilities; they would not have to be accessible to people who use wheelchairs until 7 years after enactment.
The Act's enforcement provisions for private transportation systems are the same as those for private entities that provide public transportation services, providing for both injunctive relief under Section 204 of the 1964 Civil Rights Act and Justive Department actions which may seek civil penalties.
The law requires that all telephone companies that provides telephone voice transmission services, whether interstate or intrastate, also provide telephone relay services that allow people who are hearing or speech impaired to place and receive calls through devices to or from people who do not use such devices. Such services must be provided within 3 years of enactment, and the level of such services must be equivalent to the level of telephone services available to customers who are able to use ordinary voice services.
Telephone relay services are services in which a person who is hearing or speech impaired transmits a typed message over telephone lines through a Telecommuniction Device for the Deaf (TDD) to an operator at a relay center that receives the message on another TDD. The operator in turn acts as an intermediary and places a voice call to the called party, relaying the message. The relay operator subsequently operates in the reverse by transmitting any message over the TDD from the voice party to the person who is hearing or speech impaired. This process continues until the call is completed, with the relay operator converting all voice messages into typed text and all TDD messages into voice.
Currently, 17 states have formal relay programs and systems are planned in 10 additional states. These systems, however, often provide for intrastate calls only, and they frequently restrict the number and length of calls or the times at which calls may be made.
The Act provides that telephone relay services may be provided by the individual telephone companies themselves, through designers, through competitively selected vendors or in concert with other telephone companies.
ADA requires the Federal Communications Commission (FCC) to issue regulations within 1 year of enactment that establish guidelines and operational procedures for a nationwide system of interstate and intrastate relay services, including requirements that:
* Relay services operate 7 days a week, 24 hours a day;
* Users of relay services pay rates no greater than the rates paid for equivalent voice services with respect to the length of the call, the time of day the call is made and the distance from the caller to the called person;
* Prohibit relay operators from refusing calls or limiting the length of calls, or from intentionally altering a relayed conversation; and
* Prohibit relay operators from disclosing the content of any relayed conversation and from keeping records of the content of conversations beyond the duration of the call.
Funding for Relay Services
The legislation does not specify how telephone relay service systems are to be financed and, instead, permits the FCC to develop regulations to govern the means by which telephone companies may recover costs. The Act requires that, is general, the costs of relay services be recovered from all telephone subscribers--not just the users of relay services. FCC regulations must require that the costs of providing interstate relay services be recovered from all telephone subscribers who use any interstate telephone services, while the costs of intrastate relay services be recovered from all subscribers who use any intrastate services.
Certification of State Programs
The Act provides for the certification by the FCC of state programs which regulate intrastate telephone relay services. To receive FCC certification, state programs must meet or exceed FCC relay service regulations and standards, and the state must make available adequate resources for enforcement. The FCC may suspend or revoke a state's certification if, after notice and hearing, the FCC determines that certification is no longer warranted.
The law provides that, in general, enforcement of telephone relay service requirements be carried out by the FCC through existing enforcement provisions of the Communications Act of 1934. Enforcement of intrastate relay services in an FCC certified state would be carried out by the state.
The Act requires that the FCC resolve, by final order, any complaints alleging violations of relay service requirements within 180 days of the date the complaint is filed. Complaints concerning intrastate services in certified states must be referred by the FCC to that state for enforcement. Complaints in states that are no longer certified, or in which a certified state fails to take action within a specified period of time, would be resolved by the FCC.
Closed Captioning of Public Service
The law also requires that all television public service announcements that are produced or financed, in whole or in part, by federal funding include closed captioning to permit hearing impaired people to read the verbal content of the announcements.
Required closed captioning must be provided by the producer of the program who receives the federal assistance, and not by the broadcaster. Broadcasters would not be required to supply closed captioning for federally funded announcements that fail to include such captioning, nor would they be held liable for failing to transmit the closed captioning that was included on federally funded announcements, unless such failure was intentional.
Discrimination by State and Local
The Act contains provisions extending the discrimination prohibitions of the Rehabilitation Act of 1973--which prohibits discrimination against people with disabilities by the Federal Government and by entities receiving federal funds--to all programs, activities and services of state and local government entities, including special purpose districts and any instrumentalities of a local government. (Any state or local government activity currently receiving federal funds is already covered by the Rehabilitation Act.)
A disabled person alleging discrimination under this section of the Act would be entitled to the same remedies as a disabled person bringing a lawsuit under Section 504 of the Rehabilitation Act (i.e., injunctive relief).
Coverage of Congress
ADA provides that the provisions of this legislation shall apply in their entirety to the Senate, the House of Representatives and all the instrumentalities of the Congress.
The Act also stipulates that the remedies and procedures under H.Res. 558, the Fair Employment Practices Resolution, shall be applied to cases involving people with disabilities. This resolution was passed by the House on October 3, 1988, and was continued in effect throughout the 101st Congress by H.Res. 15, which the House passed on January 3, 1989.
The Act also contains provisions requiring the Attorney General--in consultation with the Chair of the Equal Employment Opportunity Commission, the Secretary of Transportation, the Chair of the Architectural and Transportation Barriers Compliance Board, and the Chairman of the Federal Communications Commission--to develop a plan for providing technical assistance to covered entities in understanding their responsibilities under the legislation. Various federal agencies will be responsible for implementing this plan and rendering the technical assistance required.
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|Article Type:||Cover Story|
|Date:||Jun 22, 1990|
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