The Americans with Disabilities Act (ADA), which was signed into law by President George H. W. Bush in 1990, protects an array of individuals with disabilities at colleges and universities from discrimination by imposing comprehensive obligations on private sector employers, public services and accommodations, and transportation. In this respect, the ADA effectively extends the reach of Section 504 of the Rehabilitation Act of 1973 to the private sector and programs that do not received federal financial assistance.
The purpose of the ADA, as stated in its preamble, is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” (42 U.S.C. § 12101). The ADA provides protections similar to those of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, and national origin. The ADA was recently amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The ADAAA expanded the ADA’s definition of disability as it had been interpreted by the courts.
Definition of Disability
The ADA provides a comprehensive federal directive for covered entities to eliminate discrimination against individuals with disabilities and to provide “clear, strong, consistent and enforceable standards” (42 U.S.C. § 12101(b)(2)) to help achieve this goal. The ADA defines an individual with a disability as one who has “(a) a physical or mental impairment that substantially limits one or more of the major life activities; (b) a record of such an impairment; or (c) being regarded as having such an impairment” (42 U.S.C. § 12102(2)). The ADAAA makes it clear that this definition covers persons who suffer from epilepsy, diabetes, cancer, multiple sclerosis, and other ailments even though measures may be taken to mitigate the effects of their conditions. On the other hand, the amendments specifically provide an exception so that employers can consider the mitigating effects of ordinary eyeglasses or contact lenses in determining whether visual impairments substantially limit major life activities. The ADA defines major life activities as caring for oneself, hearing, walking, speaking, seeing, breathing, and learning. The ADA does not require individuals to have certificates from doctors or psychologists in order to be covered by its provisions.
The ADA specifically excludes a variety of individuals from its protections. In particular, those who use illegal drugs (42 U.S.C. § 12210); are transvestites (42 U.S.C. § 12208); are homosexuals and bisexuals (42 U.S.C. § 12211(a)); are transsexuals, pedophiles, exhibitionists, voyeurs, and those with sexual behavior disorders (42 U.S.C. § 12211(b)); and those with conditions such as psychoactive substance use disorders stemming from current illegal use of drugs (42 U.S.C. § 12211(c)) are not protected by the ADA.
The ADA’s Five Titles
The ADA has five major sections or titles, as they are known. Title I, which protects individuals with disabilities with regard to employment in the private sector, is directly applicable to private postsecondary institutions. It is specifically applicable to the hiring process as well as the promotion and discharge of employees. This title requires employers to make reasonable accommodations for otherwise qualified individuals once they are aware of the individuals’ conditions. This means that in order to be covered by the ADA, employees need to inform appropriate authorities within the institutions of their conditions and provide specific suggestions on how their needs can be met.
Title II applies to the public services of state and local governments for both employers and providers, including transportation, and especially education, because part of this title applies to public educational institutions. Under this title, state and local agencies are required to comply with regulations that are similar to those found in Section 504 of the Rehabilitation Act that cover access to all programs offered by a recipient of federal funds. Title II requires covered entities to provide accessible transportation.
Title III covers public accommodations. To the extent that this section applies to both the private and public sectors, it expands the scope of Section 504. Title III includes private businesses and a wide array of community services, including buildings on or off college and university campuses, transportation systems, parks, recreational facilities, hotels, and theaters. Insofar as the definition of public accommodations includes places of lodging, it applies to educational facilities that have dormitories or other residential facilities such as on-campus hotels. Title III also applies to recreation and dining facilities. Accordingly, Title III is particularly relevant to institutions of higher education that provide residence and dining services for students, faculty, staff, and visitors.
Title IV addresses telecommunications, specifically voice and nonvoice systems. As such, Title IV applies to any educational institution of higher learning that offers common communication systems to its students. Further, Title IV may require officials on campuses to install systems to allow individuals with disabilities to communicate to the same extent as others who are not disabled.
Title V contains the ADA’s miscellaneous provisions. Pursuant to Title V, the ADA cannot be construed to apply a lesser standard than that under Section 504 and its regulations, and qualified individuals are not required to accept services that fall short of meeting their needs. Title V also contains an antiretaliation provision.
In order to bring successful discrimination claims under the ADA, students bear the burden of proving that they suffered from adverse actions due to their disabilities. In the past, students with disabilities generally have been unsuccessful where officials in educational institutions can show that they had legitimate, nondiscriminatory reasons for taking adverse actions. Even so, when students claim to have disabilities that require accommodations, officials in institutions of higher education must conduct individualized inquiries into the students’ situations before making any decisions.
In order to be protected by the ADA, students must substantiate that they have disabilities as defined by the statute, are otherwise qualified, and require reasonable accommodations. As indicated above, the determination of whether students have disabilities is an individualized inquiry that ordinarily depends on specific factual situations. To the extent that a great deal depends on the degree to which impairments affect individuals’ abilities to participate in major life activities, whether a student with disabilities is covered by the ADA can vary according to the particular circumstances. An impairment that may qualify as a disability for one person in a given situation may not for another under different circumstances. For example, whether a student who has learning disabilities requires accommodations may depend on the extent to which those disabilities affect the student’s functioning in a given activity. Such a student may require assistance with note taking in a lecture course but not require any accommodations in a hands-on course. Ironically, prior academic success may show that a student’s learning impairment does not affect the major life activity of learning, rather than necessarily showing that a student has succeeded in spite of the disability.
Courts do not uphold discrimination claims filed on behalf of students with disabilities who do not meet minimum requirements for admission or maintenance in educational programs. Postsecondary institutions do not have to lower their admission standards or provide more than reasonable accommodations to admit students with disabilities. Once accepted, students with disabilities may be required to meet the usual standards for progression. Thus, institutions of higher education may dismiss students with disabilities for failing to meet the usual academic requirements. Although officials in institutions must provide reasonable accommodations so that students with disabilities can achieve, they are not required to alter their fundamental entrance or programmatic requirements on the behalf of such students. Courts usually defer to the expertise of educational officials when evaluating whether requirements are essential to the nature of their programs. Still, the burden of proof rests on officials to demonstrate the existence of a relationship between an institutional requirement and what is expected by the professions that the programs are preparing students to enter.
A fair body of litigation has developed over the denial of requests for testing accommodations for students with disabilities. Institutions of higher learning must provide accommodations in how tests are administered but are not required to modify the contents of the tests themselves for qualified students. The purpose of testing accommodations is to allow students to be tested effectively on their knowledge and not be at an unfair disadvantage due to their disabilities. Thus, accommodations should not provide students with disabilities with an advantage over other students who are not disabled. Even so, students may be required to demonstrate that the requested modifications are actually related to their disabilities.
Employees must be able to demonstrate that they have covered impairments, that they have been treated differently from staff members who do not have disabilities, and that they have been the victims of adverse decisions based on their impairments in order to maintain successful discrimination suits under the ADA. As an initial matter, courts usually reject outright discrimination claims when employees’ impairments are not covered by the ADA. Furthermore, employees with disabilities cannot succeed with discrimination claims if they lack the essential skills needed to perform jobs even with reasonable accommodations. In such situations, courts, by and large, rule in favor of employers as long as they can demonstrate that they made adverse employment decisions for essentially nondiscriminatory reasons.
Employees with disabilities are otherwise qualified if they can perform all essential requirements of their positions in spite of their impairments. When employees cannot perform essential job functions, even with reasonable accommodations, courts generally do not consider them to be otherwise qualified under the ADA. One of the essential job requirements in educational systems, particularly for instructors, is regular attendance. In this respect, employees who are unable to be present physically in campus workplaces in a reliable and predictable way are not otherwise qualified for their jobs. (Of course, institutions might be able to accommodate faculty members by allowing them to teach online, because their physical presence is unnecessary in such arrangements.) Not only are instructors expected to be present physically in classrooms, but they must also interact appropriately with students. Instructional personnel whose disabilities render them unable to interact with students are not otherwise qualified for positions that involve sustained contact with large groups of students. Consequently, since teaching is generally considered to be an essential function of an instructor’s job, the inability to teach in classrooms in most situations means that individuals cannot meet all of the requirements of being instructors in spite of their impairments.
The ADA does not protect incompetent employees or those who exhibit poor performance, and employees with disabilities may be dismissed for incompetence in the same manner as other employees. Moreover, the ADA also does not protect employees who commit acts of misconduct, even when their behavior can be attributed to their disabilities. Employers are allowed to take appropriate disciplinary action against employees who commit acts of misconduct, regardless of whether they have disabilities.
Under the ADA, employers must provide reasonable accommodations so that otherwise qualified employees with disabilities can work and compete with their colleagues who do not have disabilities. Accommodations may involve such things as renovations to the physical environment, adjustments to work schedules, or minor modifications to job responsibilities. Employers are neither required to make accommodations that would essentially change the nature of the jobs nor obligated to reassign employees with disabilities to other positions. Even so, employers may have to reassign individuals who are unable to perform essential job functions with reasonable accommodations if there exists, or soon will exist, vacant positions with duties that these individuals are able to perform. Although employers are not required to make accommodations if doing so would place undue burdens on their operations, the burden of proof that requested accommodations would create undue financial or administrative burdens generally rests on employers. Thus, employers must prove that employees or applicants are unfit rather than having individuals demonstrate that they are eligible to perform job duties with reasonable accommodations.
Allan G. Osborne, Jr.
- Russo, C. J., & Osborne, A. G. (2009). Section 504 and the ADA. Thousand Oaks, CA: Corwin.
- Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
- Americans with Disabilities Act Amendments Act of 2008, Pub. L. No. 110-325.
- Rehabilitation Act of 1973, Section 504, 29 U.S.C. §§ 794 et seq.