Americans with Disabilities Act (ADA)

Overview

Primary Enforcers: DOJ Civil Rights Division (Titles II/III), EEOC (Title I)
Legislation: 42 USC 12101 et seq. (ADA of 1990)
Major Amendment: ADA Amendments Act of 2008 (ADAAA)
Signed: July 26, 1990
Effective: January 26, 1992 (Title I), January 26, 1992 (Titles II-V)

Five Titles of ADA

1. Title I - Employment: Prohibits discrimination in employment (15+ employees)


2. Title II - State/Local Government Services: Accessibility of government programs and services


3. Title III - Public Accommodations: Accessibility of private entities serving the public


4. Title IV - Telecommunications: Telecommunications relay services


5. Title V - Miscellaneous: Technical provisions, relationship to other laws

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Title I: Employment (42 USC Sec. 12111-12117)

Enforcer: Equal Employment Opportunity Commission (EEOC)
Regulations: 29 CFR Part 1630

Coverage

• Employers with 15 or more employees


• Covers hiring, firing, advancement, compensation, training


• Massachusetts: MGL Ch. 151B covers employers with 6+ employees

Key Requirements

Reasonable Accommodations:

• Modifications or adjustments enabling qualified individual to perform essential functions


• Examples: Modified work schedules, accessible facilities, assistive technology, job restructuring

Interactive Process:

• Employer must engage in good-faith dialogue with employee


• Identify disability-related limitations


• Explore potential accommodations

Undue Hardship Defense:

• Accommodation causes significant difficulty or expense


• Factors: Cost, employer resources, operation nature

ADA Amendments Act of 2008 (ADAAA)

Expanded Disability Definition:

• Must be construed broadly in favor of coverage


• Major life activities include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working


• Major bodily functions: immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, reproductive functions

Mitigating Measures:

• Must be disregarded when determining if impairment substantially limits major life activity


• Exception: Ordinary eyeglasses and contact lenses

"Regarded As" Prong:

• No need to prove impairment limits major life activity


• Need only show discrimination because of actual or perceived impairment


• Exception: Transitory and minor impairments (duration 6 months or less)

Enforcement (Title I)

EEOC Process:

1. File charge with EEOC within 180 days (300 days if state/local law)


2. EEOC investigates


3. EEOC may file lawsuit or issue Right to Sue letter


4. Individual can file lawsuit in federal court

Remedies:

• Back pay


• Front pay


• Reinstatement


• Compensatory damages (emotional distress, pain/suffering)


• Punitive damages (willful/reckless)


• Attorney's fees

Damage Caps (based on employer size):

• 15-100 employees: $50,000


• 101-200 employees: $100,000


• 201-500 employees: $200,000


• 500+ employees: $300,000

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Title II: State and Local Government Services (42 USC Sec. 12131-12165)

Enforcer: DOJ Civil Rights Division
Regulations: 28 CFR Part 35

Coverage

• All state and local government entities regardless of size


• Public schools, universities, libraries


• Public transportation (buses, rail, paratransit)


• Courts, jails, public meetings


• All programs, services, activities

Key Requirements

Program Accessibility:

• Services, programs, activities must be accessible to individuals with disabilities


• Physical barriers: structural changes required (unless undue burden)


• Policies and procedures: must be modified to avoid discrimination

Effective Communication:

• Auxiliary aids and services must be provided


• Examples: Qualified interpreters, assistive listening devices, captioning, large print, Braille

2024 Web Accessibility Final Rule:

• Published: April 24, 2024


• Standard: WCAG 2.1 Level AA


• Applies to: Web content and mobile apps of state/local governments


• Compliance Deadlines:

- April 24, 2026: Special district governments (population 50,000+)
- April 24, 2027: Special district governments (population under 50,000)

Five Exception Categories:

1. Archived web content


2. Pre-existing conventional electronic documents


3. Content posted by third party


4. Individualized, password-protected documents


5. Pre-existing social media posts

Enforcement (Title II)

DOJ Process:

• Individuals can file complaints with DOJ


• DOJ investigates


• DOJ can file lawsuit seeking injunctive relief


• DOJ can seek civil penalties

Civil Penalties (DOJ Enforcement):

• First violation: Up to $75,000


• Subsequent violations: Up to $150,000

Private Right of Action:

• Individuals can file lawsuits directly in federal court


• Remedies: Injunctive relief, declaratory relief, attorney's fees


• No monetary damages (injunctive relief only)

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Title III: Public Accommodations (42 USC Sec. 12181-12189)

Enforcer: DOJ Civil Rights Division
Regulations: 28 CFR Part 36

12 Categories of Public Accommodations

1. Hotels, motels, inns


2. Restaurants, bars


3. Theaters, stadiums, concert halls


4. Auditoriums, convention centers


5. Bakeries, grocery stores, retail


6. Laundromats, dry cleaners, banks


7. Barber shops, beauty shops, shoe repair


8. Professional offices (lawyers, accountants, doctors)


9. Hospitals, pharmacies


10. Terminals, depots, stations


11. Museums, libraries, galleries, parks, zoos


12. Private schools, daycare centers, gyms, spas

Key Requirements

2010 ADA Standards for Accessible Design:

• New construction: Must be accessible


• Alterations: Modified portions must be accessible


• Barrier removal: Existing facilities must remove barriers where readily achievable

Readily Achievable:

• Easily accomplishable without much difficulty or expense


• Lower standard than "undue burden"


• Examples: Installing ramps, widening doors, adding grab bars

Auxiliary Aids and Services:

• Must provide to ensure effective communication


• Examples: Qualified interpreters, note-takers, written materials, assistive listening devices

Service Animals:

• Must allow service animals (dogs and miniature horses)


• Can only ask 2 questions:

1. Is the animal required because of a disability?
2. What work/task has the animal been trained to perform?

• Cannot ask for documentation, require vests, or demand demonstrations

Web Accessibility (Title III)

DOJ Guidance:

• Websites of public accommodations must be accessible


• Standard: WCAG 2.1 Level AA (DOJ settlement practice)


• Applies even if physical location is accessible

Enforcement (Title III)

DOJ Process:

• Individuals can file complaints with DOJ


• DOJ investigates


• DOJ can file lawsuit seeking injunctive relief and civil penalties

Civil Penalties (Same as Title II):

• First violation: Up to $75,000


• Subsequent violations: Up to $150,000

Private Right of Action:

• Individuals can file lawsuits directly in federal court


• Remedies: Injunctive relief, declaratory relief, attorney's fees


• No monetary damages (injunctive relief only)


• Prevailing party can recover attorney's fees

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Title IV: Telecommunications (47 USC Sec. 225, 47 USC Sec. 611)

Requirements:

• Telecommunications relay services (TRS) for deaf/hard of hearing


• Closed captioning for television


• Video description for blind/visually impaired

Enforcer: Federal Communications Commission (FCC)

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Massachusetts-Specific Requirements

MGL Chapter 151B - Massachusetts Fair Employment Practices Act

Key Differences from Federal ADA:

• Employer Coverage: 6+ employees (not 15)


• Protected Classes: Disability plus additional categories (sexual orientation, gender identity, age, ancestry)


• Enforcement: Massachusetts Commission Against Discrimination (MCAD)

521 CMR - Architectural Access Board Regulations

Established: 1967 (23 years before federal ADA)

More Stringent Than ADA in Several Areas:

1. Door Hardware: 36-48" above floor (ADA: 34-48")


2. Stairs: ALL stairs must comply (ADA: only stairs without ramp/elevator alternative)


3. School Ramps: 48" clear width required (ADA: 36")


4. Ramp Slope: 1:12 maximum with NO tolerance (ADA: allows minor deviations)

AAB Jurisdiction:

• Reviews and approves building permit applications


• Issues variances


• Investigates complaints


• Conducts hearings

Massachusetts Commission Against Discrimination (MCAD)

Jurisdiction:

• Employment discrimination (concurrent with EEOC)


• Housing discrimination


• Public accommodation discrimination (concurrent with DOJ)

Filing Process:

• Charge filed with MCAD within 300 days


• MCAD investigates (may take 1-2 years)


• MCAD may issue finding of probable cause


• Hearing before MCAD Hearing Officer


• Appeal to Full Commission, then Superior Court

Remedies:

• Cease and desist orders


• Compensatory damages (emotional distress)


• Back pay, front pay, reinstatement


• Attorney's fees


• Civil penalties to Commonwealth (separate from damages)

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Compliance Framework

For Employers (Title I)

1. Do not discriminate in hiring, firing, promotion, compensation, training


2. Provide reasonable accommodations for qualified individuals with disabilities


3. Engage in interactive process when accommodation requested


4. Medical examinations: Only after conditional job offer


5. Confidentiality: Keep medical information separate and confidential


6. Massachusetts: Comply with MGL Ch. 151B (6+ employees)

For State/Local Governments (Title II)

1. Program accessibility: Ensure services, programs, activities are accessible


2. Effective communication: Provide auxiliary aids/services


3. Self-evaluation: Assess current services and policies


4. Transition plan: For structural changes needed


5. Grievance procedure: Designate ADA coordinator, establish complaint process


6. Web accessibility: WCAG 2.1 Level AA by April 2026/2027 (2024 final rule)

For Public Accommodations (Title III)

1. New construction: Meet 2010 ADA Standards for Accessible Design


2. Alterations: Ensure altered portions are accessible


3. Barrier removal: Remove barriers where readily achievable in existing facilities


4. Auxiliary aids: Provide for effective communication


5. Service animals: Allow service animals (dogs, miniature horses)


6. Web accessibility: WCAG 2.1 Level AA (DOJ settlement practice)


7. Massachusetts: Comply with 521 CMR (more stringent standards)

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Official Sources

• 42 USC 12101 et seq.: https://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter126


• 28 CFR Part 35 (Title II): https://www.ecfr.gov/current/title-28/chapter-I/part-35


• 28 CFR Part 36 (Title III): https://www.ecfr.gov/current/title-28/chapter-I/part-36


• 29 CFR Part 1630 (Title I): https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XIV/part-1630


• ADA.gov: https://www.ada.gov/


• EEOC: https://www.eeoc.gov/statutes/americans-disabilities-act-1990


• 2024 Web Accessibility Rule: https://www.federalregister.gov/documents/2024/04/24/2024-07758/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state


• Massachusetts MCAD: https://www.mass.gov/orgs/massachusetts-commission-against-discrimination


• Massachusetts AAB: https://www.mass.gov/orgs/architectural-access-board


• 521 CMR: https://www.mass.gov/regulations/521-CMR-architectural-access-board