On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, marking a monumental step toward ensuring equal access and opportunities across the United States for individuals with disabilities. When the ADA was enacted, some feared that it would quickly squelch the ability for a vast array of U.S. businesses to operate and lead to a decline in the U.S. economy. With the benefit of hindsight, we can safely say that the ADA did not bring the demise of American businesses and the U.S. economy. To the contrary, over the past thirty-five years, the ADA has had a transformative effect on workplaces, public spaces, businesses, and communities, and accessibility is continuing to evolve in many ways.
In the spirit of celebrating the ADA’s 35th anniversary, here are a few helpful tips for our Gordon Arata community and beyond for ADA compliance:
Understanding Title I, Title II and Title III
Broadly speaking, Title I of the ADA deals with employment. The focus of Title I is the prohibition on discrimination against individuals with disabilities in employment settings. Title I applies to private employers, state and local governments, employment agencies, and labor unions with 15 or more employees. Employers must provide reasonable accommodations (e.g., modified workstations and flexible schedules) unless it cause undue hardship, and must ensure non-discriminatory hiring, promotion, and termination practices.
Title II deals with public services, and prohibits discrimination by public entities, and requires equal access to government services, programs and activities. Title II covers state and local government entities, including public transportation (e.g., buses and trains). Public entities must make programs accessible, provide auxiliary aids if needed (e.g., braille, interpreters, etc.), and ensure facilities like courthouses or public transit are accessible to disabled persons.
Lastly, Title III deals with private entities that offer public accommodations, and prohibits discrimination in places of public accommodation and commercial facilities. Title III applies to private businesses open to the public, such as hotels, restaurants, theaters, and retail stores. Businesses must remove physical barriers where readily achievable, provide auxiliary aids for effective communication, and ensure accessible facilities like parking and restrooms.
Workplace Accommodations
Employers must provide accommodations for employees with disabilities unless doing so causes undue hardship. To ensure compliance with this requirement, employers should engage in an interactive process with employees to identify accommodations, such as flexible schedules, ergonomic workstations, or assistive technologies like screen readers. Additionally, employers should ensure workstations, break rooms, and other common areas are accessible, with clear paths and adjustable furniture. Employers are encouraged to train their HR staff on ADA requirements using resources from the “Job Accommodation Network” (JAN) to address specific disability-related needs.
Of course, compliance with the ADA isn’t only about changing furniture and floorplans at the workplace itself. Employers must also practice non-discrimination in any hiring processes, including the review of job applications, in conducting interviews, and in ensuring accessibility of and relevant testing processes. It is important to note that the ADA prohibits employers from asking about disabilities before making a job offer.
The Hospitality Industry
Within the hospitality industry, companies offering overnight accommodations, such as hotels, must provide a minimum number of accessible guest rooms with features like roll-in showers, grab bars, and visual alarms for hearing-impaired guests. The number of required rooms depends on the size of the facility. All main entrances must be accessible with ramps and automatic or easy-to-open doors. Entryways and ramps should be regularly inspected for obstructions. For guests with visual impairments, signage directing guests from place to place should include tactile signage that can be read in braille.
Additionally, any company offering dining areas, including hotels and restaurants, must ensure that dining surfaces are at least 28-34 inches high, with knee clearance for wheelchair users, and at least 5% of seating must be wheelchair accessible.
Training and Awareness
No matter the industry, employers should train employees on ADA requirements and disability etiquette to foster an inclusive environment. In addition, employers should conduct periodic assessments to ensure ongoing adherence to ADA standards as facilities and technologies evolve. To reduce stigma and promote compliance, communities should educate residents about ADA rights and responsibilities. Plenty of local community disability organizations provide workshops on interacting with individuals with disabilities.
For example, Disability Rights Louisiana (DRLA) offers training on many disability-related subjects, including disability rights advocacy; basic description of DRLA services; disability etiquette; special education; interdictions; voting; benefits planning; and Louisiana Rehabilitation Services (LRS). Additionally, the City of New Orleans ADA Office provides resources and information on ADA compliance and accommodations.
Service Animals
Under the ADA, service animals are considered assistive devices for individuals with disabilities. They play a crucial role in enhancing the independence and quality of life for individuals with various disabilities. Although not every person with disabilities has a service animal (less than 1% of Americans with disabilities have one), the presence of service animals is still prevalent, and continues to grow. An estimated 500,000 service dogs are working in the United States alone.
Hospitality business must permit service animals in all public areas, including dining rooms and guest rooms, unless the animal poses a direct threat. Again, it should be noted that employees cannot inquire about the disability of a guest who is accompanied by a service animal. The only questions employees may appropriately ask under the ADA are whether the animal is required because of a disability, and what work or task the animal has been trained to perform. They cannot ask for documentation, require the animal to demonstrate its tasks, or inquire about the nature of the disability.
Technology and Digital Accessibility
Ensuring ADA compliance is not limited to physical spaces. Many individuals have visual, auditory, motor and/or cognitive impairments, and must therefore rely on assistive technologies to facilitate navigating a website or using other electronic or digital resources. Therefore, the ADA should be front-of-mind when designing a website or digital resource.
Under the ADA, both public and private entities must ensure online booking systems and other websites are navigable for people using assistive technologies. Additionally, captions for videos and transcripts for audio content to accommodate individuals with hearing impairments should be provided.
One of the simplest ways to approach online accessibility is to follow the Web Content Accessibility Guidelines (WCAG), which provides that online content should be perceivable, operable, understandable, and robust. Perceivable means that the online content should be presented in such a way that users can perceive it. For example, video or audio content should be presented with captions. Operable means that online content should be presented in such a way that it functions for users. For example, online content should allow voice inputs instead of requiring a keyboard or mouse to enter information. Understandable is perhaps the most subjective of the guidelines because it holds that online content should be understandable to the broadest range of people. Robust is more objective in that online content should able to be reliably interpreted by a wide variety of assistive technologies. WCAG also provides three levels of conformance with its principles, and it recognizes that full compliance is not practicable in all situations.
Implementers of assistive technology must also comply with Section 508 of the Rehabilitation Act of 1973. Section 508 applies more narrowly than the ADA, in that it applies primarily to federal agencies and departments, ensuring that all people, regardless of disability, can access and benefit from federal agency resources. Section 508 requires federal agencies to create, purchase, and use information and communications technology (ICT) that is accessible to people with disabilities. It also applies to organizations doing business with federal agencies, as these organizations must meet the law’s requirements to sell their products. Non-compliance can result in loss of funding for federal agencies.
If you have questions about how best to make sure that your business is accessible to your customers and stakeholders, please reach out to our attorneys at 504-582-1124.