From: Julie Dawson 
Subject: Equality of Opportunity -- HISTORY.TXT  (fwd)
first prong of the definition of disability one must also have an
impairment that  substantially limits   major life activities. 
According to the regulations, major life activities include such
things as  caring for one s self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working.   The regulations state that determination of whether a
limitation is  substantial  should be based on whether one cannot
do the activity at all or by comparing  the conditions, manner,
or duration under which  life activities can be performed with
the abilities of most people.  Thus, the inability to walk over
ten miles without experiencing some pain or fatigue would
generally not be considered a disability, since most people would
feel such discomfort.  However, the inability to walk because of
paralysis, or the inability to walk without the assistance of
crutches, could be considered disabilities.
     The second prong of the definition of disability protects
individuals with a record of an impairment whether one actually
had an impairment or was misclassified as having an impair ment. 
This prevents people who have recovered from (or never had) an
impairment from being discriminated against according to a past
experience.  For example, the ADA protects individuals who have
survived cancer or heart disease.  It also protects, for example,
someone mistakenly identified as having a mental illness.
     The third prong of the definition protects persons whose
life activities are not substantially limited, but who are
treated discriminatorily as if their performance of life
activities was limited. The basis for this prong of the
definition of disability is that sometimes negative reactions to
impairments are more disabling than the impairments themselves. 
As stated in the regulations:  A person who is not allowed into a
public accommodation because of the myths, fears, and stereotypes
associated with disabilities would be covered under this third
test whether or not the person s physical or mental condition
would be considered a disability under the first or second test
in the definition. 
     The ADA expressly excludes certain impairments or conditions
and certain individuals from coverage.  Namely, the ADA excludes
 transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, other sexual behavior disorders, compulsive
gambling, kleptomania, pyromania, and psychoactive substance use
disorders resulting from current illegal use of drugs.   The ADA
also excludes homosexuality and bisexuality, which are not
considered impairments.  Moreover, the ADA excludes current users
of illegal drugs.  Nevertheless, if any individual fitting one of
these exclusionary criteria also has a disability covered by the
ADA, such an individual would be protected. 
     Neither the ADA nor the regulations offer a concrete list of
each condition or impairment that qualifies as a disability. 
This is largely because it would not be possible to account for
every known and unknown or future impairment that could be
considered a disability.  Moreover, identical impairments may not
equally affect individuals  ability to perform major life
activities. 
     In addition to protecting individuals with disabilities, the
ADA offers protection to individuals who are associated with
someone who has a disability.  For example, an employer could not
refuse to hire or fire an individual because his or her spouse or
child had a disability.  This protection is not limited by the
type of association: it applies equally to friends, colleagues,
care givers, and other forms of human association.
Nondiscrimination
     The main purpose of the ADA, as with other civil rights
legislation, is to prohibit and eliminate discrimination against
individuals with disabilities.  There are, however, two different
concepts of nondiscrimination developed in the ADA.  The first is
the concept traditionally found in other civil rights laws:
decisions in employment or the provision of services cannot be
based on an individual s disability.  In the context of
employment this applies to all employment decisions, including
hiring, firing, and promotions.  Thus, the ADA prohibits an
employer from refusing to hire an individual simply because he or
she was deaf.  Likewise, operators of public transportation or a
place of public accommodation cannot deny access to, for example,
a person simply because he or she uses a wheelchair.
     The ADA also incorporates a second concept of
nondiscrimination: requiring that busi nesses, public
transportation providers, operators of public accommodations, and
communications providers take steps to ensure that people with
disabilities are not discriminated against.  The ADA does not
require that an employer should select a person with a disability
over an equally- or better- qualified person without a
disability.  As stated in the Senate Labor and Human Resources
Committee report:  The employer s obligation is to consider
applicants and make decisions without regard to an individual s
disability, or the individual s need for reasonable
accommodation.  But, the employer has no obligation under this
legislation to prefer applicants with disabilities over other
applicants on the basis of disability. 
     Rather, the ADA requires taking steps to provide equality of
opportunity.  In the context of employment, this can mean
providing such  reasonable accommodations  as modifying a work
schedule.  With respect to public transportation this can mean
equipping buses with wheelchair lifts. Concerning places of
public accommodation, this can mean allowing a guide dog to enter
a business where pets are not allowed.  With respect to
telecommunications, this generally means providing a
relay-service that enables a deaf or hard-of-hearing person to
use text-devices to communicate with hearing persons through an
operator/interpreter.
Reasonable Accommodation
     In many respects, the concept of  reasonable accommodation 
is the central concept of civil rights for persons with
disabilities.  It was created for the implementation of Section
504 of the Rehabilitation Act, and applies to employment
decisions.  Reasonable accommodations refer to steps taken by an
employer to enable a person with a disability to perform his or
her job responsibil ities.  Rather than define precisely what a
reasonable accommodation is, the ADA sets out examples of
reasonable accommodations.
     There are three basic types of reasonable accommodations. 
The first concerns structural alterations to an employment
setting to enable, for example, a person with a wheelchair to
gain access to the employment site and have an accessible
work-site, which might include a raised desk. The second type of
reasonable accommodation refers to modification of employment
practices. This might include permitting a person with a
disability to have a modified work schedule that could
accommodate medical treatments.  It could also include adjusting
examinations, training materials, or employer policies to enable
an individual to take an oral rather than written exams, for
example, or allowing a guide dog into the workplace.  The third
type of reasonable accommodation refers to acquiring equipment,
services, or devices for a person with a disability.  For
example, a reasonable accommodation might be providing a deaf or
hard-of-hearing person with an amplified telephone headset, or
providing a personal assistant for an individual with cerebral
palsy.
     Under the ADA, employment discrimination includes a failure
to provide  reasonable accommodations  to the known physical or
mental limitations of a  qualified person with a disability, 
meaning an individual who, with or without reasonable
accommodation, can perform the  essential functions  of a given
position.  This means that employers are obligated to provide
reasonable accommodations to persons who meet employment
criteria, except criteria that an individual cannot meet because
of a disability.  For example, a person with a disability must
meet the same educational requirements any other applicant has to
meet.  If, however, an individual is  otherwise qualified  for a
position, an employer is obligated to provide reasonable
accommoda tions that enable an individual to be fully qualified
for the job in question.  This might include providing a hand
brace that enables a person with limited hand function to type at
a required rate. 
     Similar to the definition of disability, the definition of
reasonable accommodation is intentionally flexible.  It is based
on a notion of individualized treatment, that accommodations
should be tailored to the specific needs of each individual with
a disability.  The ADA, the accompanying regulations, and
congressional reports encourage employers and employees to
collaborate in determining appropriate accommodations through a
 problem-solving  approach. According to a congressional report,
the intent for the ADA was that  the reasonable accommodation
requirement is best understood as a process in which barriers to
a particular individual s equal employment opportunity are
removed,  rather than applying accommodations to certain
disabilities according to a predetermined, inflexible standard.
Essential Functions
     According to the ADA, a qualified individual need be able to
perform only the  essential functions  of a given position,
meaning those job tasks  that are fundamental and not marginal. 
This is directed at situations in which an employer may, for
example, require a driver s license as part of the job
description so that the employee could run an occasional errand. 
The legislative intent for the ADA was that these and similar
types of responsibilities tangential to the basic or essential
portions of a job could be assumed by another employee.
Undue Hardship
     The unique nature of civil rights for disabled persons means
that providing equal opportunity can cost money for businesses,
governments, and other entities covered by the ADA.  The ADA
incorporates a limit to the costs employers must incur: failure
to make reasonable accommodations does not constitute
discrimination if an employer demonstrated that an accommodation
would impose an  undue hardship  on its business.
     As with other legal concepts in the ADA, undue hardship is
designed to be flexible and determined on a case-by-case basis. 
An undue hardship means  an action requiring significant
difficulty or expense.   The ADA identifies four factors to be
considered in assessing whether a reasonable accommodation
constituted an undue hardship, including the resources of a local
facility in addition to a parent company:
  the nature and cost of the accommodation needed under this
Act ; 
  the overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation; the
number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility ; 
  the overall financial resources of the covered entity; the
overall size of the business of a covered entity with respect to
the number of its employees; the number, type, and location of
its facilities; and
 the type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility or
facilities in question to the covered entity. 
     The limit of undue hardship is one of several  defenses 
against charges of discrimination available to employers.  For
example, a criteria that tends to screen out individuals with
disabilities may be acceptable if it  has been shown to be
job-related and consistent with business necessity,  and that
reasonable accommodation cannot remedy the situation.  Also, the
ADA allows a religious organization or religious educational
institutional to require employees to conform to its religious
tenets.  In addition, the ADA enables restaurant operators to
remove an employee from food handling positions if he or she has
a contagious disease that has been shown to be transmitted
through food or drink.  Furthermore, the ADA allows employers to
prohibit the use of illegal drugs and alcohol in the workplace.
Public Accommodations
     Public accommodations are private establishments that affect
travel, trade, traffic, com merce, transportation, or
communication.  The ADA identifies 12 types of establishments:
places of lodging (e.g., hotels); establishments serving food or
drink (e.g., restaurants); places of exhibition of entertainment
(e.g. theaters); places of public gathering (e.g., convention
centers); sales or rental establishments (e.g., grocery stores);
service establishments (e.g., professional offices); stations
used for specified public transportation (e.g., terminals);
places of public display or collection (e.g., museums); places of
recreation (e.g., amusement parks); places of education (e.g.,
secondary schools); social service center establishments (e.g.,
day care centers); and places of exercise or recreation (e.g.,
gymnasiums).  Obligations to comply with the ADA apply equally to
owners, managers, and renters of places of public accommodations.
     Prohibited forms of discrimination by places of public
accommodation include: denying participation in or benefit from
 the goods, services, facilities, privileges, advantages, or
accommo dations of an entity  because of an individual s
disability; affording individuals with disabilities with unequal
participation in or benefit from  goods, services, etc. ;
providing people with disabilities  goods, services, etc.  that
are different or separate from those provided to others (unless
necessary providing opportunities that are equally effective as
others); and excluding or otherwise denying equal  goods,
services, etc.  to individuals known to have a relationship or
association with a person with a disability.
     Although  reasonable accommodation  is not directly used in
discussing nondiscrimination by places of public accommodation,
the ADA requires that such establishments take steps to provide
equal opportunity that parallel the concept of reasonable
accommodation used with respect to employment.  Three types of
actions are required.  The first refers to structural
accessibility, and is described separately under the heading
 readily achievable.   The second type includes modifica tions to
policies, practices, and procedures.  For example, a restaurant
must modify its rule forbidding pets to enable an individual with
a guide dog to enter the restaurant, in the same way such a
person must be able to enter a workplace.  The third type of
---
---------------