The Americans with Disabilities Act of 1990

Presented toThe Florida Housing CoalitionSeptember 22, 2009

Jack Humburg

Director of Housing Development

Director of ADA Services Fair Housing Education

and Outreach, 2007 Consultant to the City of

St. Petersburg on ADA issues for over a decade & former chair of CAPI

Qualifications

DBTAC Affiliate for the State of Florida since 1992

Authored ADA Transition Plans for Hillsborough County, Osceola County, City of Indiana Rocks Beach, West Palm Beach, Green Cove Springs, Hillsborough County Court System, and others.

Consultant on hundreds of ADA lawsuits and complaints

Chair of the Accessibility Advisory Committee of the Florida Building Code Commission

Trained by U.S. DOJ, EEOC, Access Board, & HUD.

The DBTAC is a Network of 10 Regional Centers providing TA throughout the country with over 2,200 affiliates at the local, state and regional level.

“The Basics”- Civil Rights Laws that Protect Individuals with Disabilities

Rehabilitation Act of 1973 Section 504

Fair Housing Act (1988 amd.) Individuals with Disabilities

Education Act (IDEA) Civil Rights of Institutionalized

Persons Act Air Carriers Access Act And Several Others…

Florida Human Rights Act

Florida Statues, Chapters 553, 316, etc.

The ADA

Title I Employment

Title II Public Entities

Title III Public Accommodations and commercial facilities

Title IV Telecommunications

Title V Miscellaneous

Definition of Disability

With Respect to the Individual…

Physical or Mental Impairment that substantially limits one or more of a major life activity...

Record of impairment Regarded as having an

impairment

The ADA Amendments Act

Broadens coverage to individuals the Courts had said were not “Disabled”

Mitigating measures should NOT be considered (i.e. medications, etc.)An exception is made for “ordinary

eyeglasses or contact lenses” which may be taken into account.

The ADA Amendments Act

Major Life Activities can be just one activity and should include “Major Bodily Functions” (i.e. immune system, normal cell growth, and the endocrine system)

Episodic conditions or “in remission” are now covered if the impairment would substantially limit a major life activity when in it’s active state

The ADA Amendments Act

Bottom Line

“…the primary object of the court’s attention in ADA Cases should be whether covered entities have complied with their obligations and that the question of whether an individual’s impairment is a disability should not demand extensive analysis”

Title I ~ General Rule

No covered entity shall discriminate against a qualified individual with a disability, because of the disability of such individual in regard to the job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment

“Qualified Individual with a Disability”

An individual with a disability who satisfies the requisite skills, experience and education requirements of the position the person holds or desires and who, with or without reasonable accommodation, can perform the essential functions of such position.

“Reasonable Accommodation”

Any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity.

Required in 3 Areas1 Application

process2 Performance of

the essential functions of a job

3 Enjoyment of equal benefits and privileges of employment

“Undue Hardship”

An action that is “unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business”

Drug and Alcohol Use

The use of illegal drugs is never protected under the ADA.

Alcohol is legal and use is not automatically disqualifying.

Title II, State & Local Government Coverage

Prohibits discrimination on the basis of disability in the services, programs, or activities of all state and local government entities.

Subtitle A: State and Local Governments

Subtitle B: Public Transportation

Title II, Public Entities

Obligations cover all programs, services, and activities provided directly or indirectly through contracts. General public contact Programs for

beneficiaries and participants

Employment

Title II: “Program Accessibility”

A public entity’s services, program, or activities, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities.

Title II: Program Accessibility

Does not require all buildings and facilities to be accessible

Priority must be given to the method that results in the most integrated setting

May include aides, equipment, or the relocation of program

The ADA, Title II General Non-Discrimination Provisions

Cannot refuse to provide service

Maximum integration Cannot require

participation in separate programs

No unnecessary eligibility standards

Need to anticipate needs of people with disabilities

No special requirements o Must provide reasonable accommodations

o Must make reasonable modifications

Title II: Qualified Individual with a Disability

To be “Qualified”, the individual with a disability must meet the essential eligibility requirements for receipt of services or participation in a public entities program, activities, or services with or without…Reasonable modification to rules, policies,

or practices;Removal of architectural, communication,

or transportation barriers; or Provision of auxiliary aids and services

Direct Threat

An employer is not required to hire or continue to employ an individual who poses a direct threat to the health or safety of the individual or others.

A direct threat is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”

Direct Threat Factors to consider…

The duration of the risk

The nature and severity of the potential harm;

The likelihood that the potential harm will occur; and

The imminence of the potential harm

Title III: Public Accommodations

A public accommodation may not discriminate against an individual with a disability…they may not be denied the full and equal enjoyment of the “goods, services, facilities, privileges, advantages, or accommodations” offered by a place of public accommodation.

Title III, Who is Covered? Public Accommodations

Private entities that own, operate, lease, or lease to a place of public accommodation

Commercial facilities Private entities that affect

commerce (non-residential) office buildings, factories, warehouses, etc.

Private Entities… that offer certain

examinations

Title III: Public Accommodations

Places of lodging Serves food or drink Places of exhibition or

entertainment Places of public

gathering Sales or rental

establishments Services

Establishments

Public transportation terminals & stations

Places of public display

Places of recreation Places of education Social Service

Centers Places of exercise or

recreation

ADAAG

Developed for private sector facilities – ADA (Title III) by the Access Board

Usable by state and local governments (with exceptions) – (ADA Title II)

Access Board recently published a new ADAAG and ABA

Florida Building Code, Chapter 11

Florida Accessibility Code for Building Construction (FACBC)

Certification by the Department of Justice

Enforced by Local Building Code Officials & Inspectors

Review is underway to incorporate Florida specific items into the new ADAAG/ABA

The “Florida” Accessible Parking Space

All accessible parking spaces in Florida are 12 feet wide

5 foot access aisles are required and can be shared by two spaces

44 inch path of travel cannot go behind parked cars

Designation & Location Minimum Number

Title III: Barrier Removal

Public accommodations must remove architectural barriers and communication barriers that are structural in nature in existing facilities, when it is readily achievable to do so.

Accessible features should also be maintained.

“Readily Achievable”

Means easily accomplishable and able to be carried out without significant difficulty or expense.

No Grandfather Clause Exists !!

New Construction Requirements

Homeless Shelters and Transitional Facilities fall under “Accessible Transient Lodging” (Section 11-9)

Specific requirements for sleeping rooms, common areas, rest rooms (5% roll-in showers), etc.

Visual alarms, notification devices, and telephone requirements, etc.

Effective Communication

Communication must be as effective as communication with others. Auxiliary aids and

services including interpreters, TDD’s, large print, Braille…

Priority must be given to preferred method for public entities only.

Effective Communication may mean real time transcription, also known as “CART”.

For many individuals who are deaf, a sign language interpreter may be the only truly effective means of communication.

Effective Communication

Service Animals

Service animals are NOT pets and service charges or pet deposits may not be applied in any form.

The ADA does not require identification cards or documentation for the animal.

Permanent Housing providers may request documentation of the “service” being provided under the Fair Housing Act.

Court Cases

U.S. V. District of Columbia Comprehensive Physical

Accessibility Plan Reasonable Modification

Policies Effective Communication Transportation Training Oversight of Contractors

and Subcontractors San Francisco, CA

Contacts

U.S. Access Board(800) 872-2253 (voice)

(800) 993-2822 (TTY)

(202) 272-0081 (FAX)

E-mail: ta@access-board.gov

508@ access-board.gov

www.access-board.gov

SE Disability & Business Technical Assistance

Center(800) 949-4232 (V/TTY)

www.sedbtac.org

Florida Dept. of Community Affairs

850-487-1824

U.S. Dept of Justice800-514-0301www.usdoj.gov

Jack Humburg

Director of Housing Development & ADA Services

Boley Centers, Inc.445 31st Street NorthSt. Petersburg, FL 33713(727) 821-4819 x 5717jackhumburg@boleycenters.org1-800-949-4232