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AMERICANS WITH DISABILITIES ACT

Many older persons fall within the protections of the Americans with Disabilities Act (ADA), which was enacted by Congress as Public Law no. 101-336 on 26 July 1990 and signed by President George Bush, becoming effective in 1992. This legislation was intended primarily to expand to almost the entire public and private sectors the requirements regarding rights to employment, services, and public accommodations for disabled individuals which previously were imposed by section 504 of the Rehabilitation Act of 1973 only on federal contractors. Specifically, Congress in 1990 stated the purpose of the ADA as follows:

1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
2. to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
3. to ensure that the federal government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities.

The ADA is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Departments of Justice and Transportation, and civil lawsuits brought by individuals who have suffered unlawful discrimination. The court costs and attorneys' fees of prevailing plaintiffs must be paid by defendants found guilty of discrimination. No entity may retaliate against an individual for filing a claim under the ADA. In addition, most states have adopted a state counterpart to the federal ADA, enforceable through state agencies and in state courts.

Aging certainly does not automatically equal disability, and vice versa. Indeed, age by itself cannot qualify as a disability under the ADA. Nonetheless, more adults than ever before are either developing disabilities in their later years or aging through life with disabilities. The likelihood of disability demonstrably increases with age.

Employment discrimination

Title I of the ADA prohibits private (both for-profit and not-for-profit) and public (i.e., government) employers with twenty-five or more employees from discriminating "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."

Unlike the Age Discrimination in Employment Act (ADEA), passed by Congress in 1967, which only requires equal treatment for older workers (defined as persons at least forty years old), the ADA imposes affirmative obligations on employers regarding employment of the disabled. Specifically, the ADA defines unlawful discrimination to include the following:

1. (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]; or
2. (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need [of the employer] to make reasonable accommodation to the physical or mental impairments of the employer or applicant.

The ADA protects persons with a disability, which means, with respect to an individual:

1. (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
2. (B) a record [i.e., a history] of such an impairment; or
3. (C) being regarded [by others] as having such an impairment.

Many older persons ought to qualify as persons with a disability so defined.

Discrimination in public services and accommodations

Older individuals who qualify as persons with disabilities are also protected by Titles II and III of the ADA. These titles relate, respectively, to discrimination by public and private entities.

Title II. Title II provides that "[N]o 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 [defined as any department or agency of a state or local government], or be subjected to discrimination by any such entity." Banned discrimination might take the form of formal or informal barriers in the application process to obtain benefits (e.g., Medicare, Medicaid, Social Security), including unnecessarily complex application forms, inaccessible application sites, and long waiting times for appointments; reductions in public benefits and services; and undue intrusions into the disabled person's choices about services. "Qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity."

A major U.S. Supreme Court decision interpreted Title II of the ADA in 1999. In the case of Olmstead v. L.C. (119 S.Ct. 2176), the state of Georgia was sued by two women whose disabilities included mental retardation and mental illness. Both women lived in state-owned and -operated institutions, despite the fact that the professionals who were treating them had determined that they could be appropriately served in a community setting. The plaintiffs claimed that their continued institutionalization was a violation of their right under the ADA, to live "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." The Supreme Court found that "unjustified isolation. . . is properly regarded as discrimination based on disability." The Court majority opinion observed that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable and unworthy of participating in community life," and "confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment."

Under Olmstead, states are now required to provide community-based services for persons with disabilities who would otherwise be entitled to institutional services when (1) the state's treatment professionals reasonably determine that community placement is appropriate; (2) the affected persons do not oppose community placement; and (3) community placement can be reasonably accommodated, taking into account the resources available to the state and the needs of others who are receiving state-supported disability services. The Court firmly cautioned, however, that nothing in the ADA condones termination of institutional settings (such as nursing homes or state mental institutions) for persons unable to handle or benefit from community service services.

Moreover, the state's responsibility, once it provides community-based services to qualified persons with disabilities, is not unlimited. Under the ADA, states are obligated to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." The Supreme Court indicated that the test as to whether a modification entails "fundamental alteration" of a program takes into account three factors: (1) the cost of providing services to the individual in the most integrated setting appropriate; (2) the resources available to the state; and (3) how the provision of services affects the state's ability to meet the needs of others with disabilities. According to the Court, a state can establish compliance with Title II of the ADA if it demonstrates that it has (1) a comprehensive, effectively working plan for placing qualified persons with disabilities in less restrictive settings and (2) a waiting list that moves at a reasonable pace not controlled by the state's endeavors to keep its institutions fully populated.

Title III. Title III of the ADA prohibits discrimination by public accommodations: "(a) No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

The following private entities (both for-profit and not-for-profit) are considered public accommodations: places of lodging; establishments serving food or drink (e.g., restaurants); places of exhibition or entertainment; places of public gathering; sales or rental establishments; service establishments (including professional offices of attorneys and health care providers, as well as health care institutions); stations used for public transportation; places of public display or collection; places of education; social service center establishments; and places of exercise or recreation. Moreover, "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people. . ."

Title III imposes affirmative obligations on private entities. It requires places of public accommodation to do the following:

1. (ii) make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford [covered] goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless such entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;
2. (iii) take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated otherwise. . . treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;
3. (iv) remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals. . .[New construction and alterations in public accommodations are also covered.];
4. (v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, [the entity must] make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable.

One important limitation on the reach of Title III is that religious organizations are specifically excluded from coverage. Thus, there is no federal requirement that religious and social activities associated with places of worship be accessible to persons with disabilities.

Conclusion

Many questions relating to the eventual impact of the ADA on older persons, both individually and as a group, remain and await clarification through further regulatory and judicial interpretation in particular cases. It is certain, though, that the ADA provides broad, needed civil rights protections for older Americans with mental and physical disabilities in respect to programs sponsored or funded by state and local governments and to public accommodations provided by private enterprises.

MARSHALL B. KAPP

See also DISABILITY.

BIBLIOGRAPHY

American Bar Association, Commission on Mental and Physical Disability Law. Mental Disabilities and the Americans with Disabilities Act, 2d ed. Washington, D.C.: ABA, 1997.

ANSELLO, E. F., and EUSTIS, N. N., guest eds. "Aging and Disabilities: Seeking Common Ground." Generations 16 (1992): 3–99.

COLKER, R., and TUCKER, B. P. The Law of Disability Discrimination, 2d ed. Cincinnati, Ohio: Anderson, 1998.

GOSTIN, L. O., and BEYER, H. A. Implementing the Americans with Disabilities Act: Rights and Responsibilities of All Americans. Baltimore: Brookes, 1993.

GOTTLICH, V. "Protection for Nursing Facility Residents Under the ADA." Generations 18 (1994): 43–47

ROTHSTEIN, L. F. Disabilities and the Law, 2d ed. St. Paul, Minn.: West Group, 1997.

TUCKER, B. P. Federal Disability Law, 2d ed. St. Paul, Minn.: West Group, 1998. WEST, J., ed. The Americans with Disabilities Act: From Policy to Practice. New York: Milbank Memorial Fund, 1991.

ANDROGENS

See ANDROPAUSE; MENOPAUSE