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The
Americans with Disabilities Act is divided into five sections:
Title
I - EMPLOYMENT
Title I prohibits employers from discrimination against a
qualified individual with a disability because of the disability
of such individual in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.
Title
II - PUBLIC SERVICES, INCLUDING PUBLIC TRANSPORTATION SERVICES
PROVIDED BY PUBLIC ENTITIES
Title II provides that no qualified individual with a disability
shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination
by any such entity.
Title
III - PUBLIC ACCOMMODATIONS AND SERVICES OPERATED BY PRIVATE
ENTITIES
Title III states that no individual shall be discriminated
on the basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages
and accommodations by any place of public accommodation by
any person who owns, leases, leases to or operates a place
of public accommodation. Existing places of public accommodation
must be made readily accessible to and usable by individuals
with disabilities if such alterations are "readily achievable".
Where places of public accommodation undergo construction
and major renovation, the altered portion of the facility
must be designed and constructed to be readily accessible
to and usable by individuals with disabilities. Title III
also prohibits private entities that provide public transportation
services from engaging in certain discriminatory acts or omissions.
Title
IV - TELECOMMUNICATIONS
Title IV mandates that common carriers of telephone services
provide intrastate and interstate telecommunications relay
services. Its purpose is to provide these services to individuals
who use non-voice terminal devices because of disabilities,
such as deafness, and to afford them with opportunities for
communications that are equivalent to those provided to individuals
who use voice telephone services.
Title
V - MISCELLANEOUS PROVISIONS
Title V contains several miscellaneous provisions, including
coverage for Congress.
The two (2) Titles that will have a significant impact on
our organization will be Titles I
and
II. The following summarizes some of the issues involved.
Title
I - Employment
As employers, we may not discriminate against an individual
with a disability in hiring, advancement, compensation, training
discharge, or other terms, conditions, or privileges of employment.
Who is a disabled person?
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A person with physical or mental impairment that substantially
limits one or more major life activities, has a record of
such an impairment, or is regarded as having such an impairment.
(A major life activity includes such things as walking,
seeing, hearing, speaking, breathing, learning and working.)
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Some examples of disabilities that probably should now be
considered a "protected class" would be persons
with: epilepsy, AIDS, MS, cancer, heart disease, diabetes,
asbestosis and related diseases, vision in only one eye,
use of hearing aids, schizophrenia, back injury which limits
ability to lift "heavy" weight, learning disabilities,
dyslexia, physical disfigurement, drug addicts/alcoholics
not currently substance abusers etc.
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Persons who probably should not be considered to be disabled
have such conditions as: left-handedness, obesity, lack
of education, prison record, advanced age (specific afflictions
associated with age could be considered covered disabilities),
poor judgment, bad temper, current user of illegal drugs,
and any temporary disabilities, i.e., pregnancy, broken
limb, etc., nor is any sexual behavior disorder such as
transvestitism, pedophilia, voyeurism, etc.
Employers must make "Reasonable Accommodations"
to disabled persons, and those who must care for a disabled
person.
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Reasonable Accommodations means: When hiring a person with
a disability, we may need to make an accommodation; restructuring
jobs, rearranging work schedules, modifying equipment or
devices, providing Braille devices, interpreters, telephone
amplifiers, modified furniture, etc.
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The law requires us to make a reasonable accommodation unless
we can demonstrate that the accommodation will cause us
an undue hardship. Undue hardship, with respect to "accommodation",
means significant difficulty or expense will be incurred
by Mesquite ISD.
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Employees/applicants may request that an accommodation be
made. Even if we determine that an accommodation is too
costly, the applicant/employee must be offered an opportunity
to pay only what we found to be excessive.
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We can set minimum qualifications to perform the job, but
may be required to provide personal assistants to assist
the disabled in performing the job. Note: We are not required
to provide personal items such as glasses, hearing aids,
etc.
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We are not required to hire/retain an employee in a position
that poses a high probability or substantial risk of harm
to the individual or to others. Note: Documented valid medical
analysis or other objective evidence would be required to
discharge or not hire such individuals because of the disability.
Speculative harm or a possibility of harm would not disqualify
the individual.
Title
II - Public Services
Title II extends the provisions of the ADA to state and local
governments and their agencies. Title II prohibits school
districts from excluding individuals with disabilities the
benefits of the services, programs or activities of a school
district, or those services, programs or activities provided
by a contractor of the school district.
Mesquite ISD must provide accessibility to programs, services
or activities including the mobility-impaired, hearing and
speech impaired, and the blind, as well. Examples of what
is required; the requirement to communicate in an equally
effective manner may involve a variety of auxiliary aids and
services including (1) qualified interpreters, note takers,
transcription services, written materials, telephone handset
amplifiers, listening devices, listening systems, telephones
compatible with hearing aids, closed caption decoders, telecommunication
devices for deaf persons, or other effective methods of making
orally delivered materials available to individuals with hearing
impairments; (2) qualified readers, taped texts, audio recordings,
Braille materials, large print materials, or other effective
methods of making visually delivered materials available to
individuals with vision impairments; (3) aquisition or modification
of equipment and devices; (4) other similar services and actions.
When requested, Mesquite ISD is required to furnish appropriate
auxiliary aids and services to people with disabilities to
participate in or enjoy a service, program, or activity (i.e.,
School Board meetings, and public hearings).
New facilities, when constructed, must be made readily accessible
to persons with disabilities. Areas in existing facilities
that undergo alterations must be made accessible to persons
with disabilities. "Facilities" means all or part
of buildings, structures, sites, complexes, equipment, roads,
walks, passageways, parking lots, garages, indoor and outdoor
where human-constructed elements have been added.
Key
Title I - Employment Related Issues
The Act took effect for state/municipal government employers
on January 26, 1992
As
employers, we may not discriminate against an individual with
a disability in hiring, advancement, compensation, training,
discharge, or other terms, conditions, or privileges of employment.
A. We may not inquire into the possibility of a disability
or previous workers' compensation claims at the pre-employment
stage. However, if a person has an obvious disability, we
may ask them to explain or demonstrate how they will be able
to perform any essential or marginal job function, with or
without a reasonable accommodation.
Essential function is basically the reason the job exists.
We must define what is essential in a clear, concise and up
to date job description before the job is posted. We must
be able to demonstrate what portion of the time is spent on
an essential function, and the consequences of not performing
the function by past and current experience of incumbents/supervisors.
B. All tests must be job related and consistent with a specific
business necessity.
Employers
may not deny equal access to health benefit plans.
A. To deny benefits or charge extra, we must have sound actuarial
evidence as to why benefits were denied or why rates are different.
B. Pre-existing conditions clauses still apply as long as
they are not subterfuge to discriminate. |
