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• How does the ADA protect a person with a disability?

• Who is a "qualified individual"?

• What is a "reasonable accommodation"?

• How do I ask for a reasonable accommodation?

• What can I do if my request for an accommodation is denied?

The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination and ensures equal opportunity for people with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation. The law also mandates the establishment of TDD/telephone relay services. [Public Law 101-336, enacted 1990.]

The Americans with Disabilities Act is such a big deal that it actually has a website. See the ADA Home Page, at the Department of Justice's website, www.usdoj.gov.

The law separates each of those areas into Titles, and each defines prohibited behavior for organizations and entities based on the type of their offerings to the public.

  Title I requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities which are available to others. Religious entities with 15 or more employees are covered by this Title. Complaints are filed with the US Equal Employment Opportunity Commission.

  Title II prohibits discrimination on the basis of disability in all services, programs, and activities provided by state and local governments, except public transportation services. Complaints are filed with the US Department of Justice.

  Title II's public transportation provisions cover public transportation, such as city buses and public trains, which may not discriminate against people with disabilities in the provision of their services. Complaints are filed with the Office of Civil Rights of the Federal Transit Administration, in the US Department of Transportation.

  Title III prohibits discrimination on the basis of discrimination in "places of public accommodation" (businesses and non-profit agencies that serve the public) and "commercial facilities" (other businesses). Complaints are filed with the US Department of Justice.

  Title IV addresses telephone and television access for people with hearing and speech disabilities. It requires telephone companies to establish relay services 24 hours a day, 7 days a week, and it requires closed captioning of federally funded public service announcements. Complaints are filed with the Federal Communications Commission.

How does the ADA protect a person with a disability?

The ADA can be used as a sword to force equal treatment through the formal complaint process and even litigation, and there is a great deal of case law from courts all over the country interpreting the law in various situations.

But the ADA can also be thought of as Archimedes' lever (you know, the guy who said "Give me a place to stand and I can move the world"), a way to really make change happen. The secret is to ask nicely in a way that makes lawful and appropriate behavior (otherwise known as "doing the right thing") seem like a good, smart and inexpensive idea.

The ADA requires "reasonable accommodations" be made to minimize the impact of a person's disability. A person's disability must, for them to be protected by the ADA, "substantially limit" them in a "major life activity." If it does, then the person is a "qualified individual." 

(Each of the phrases above that is in quotes is magic legal language that has been the subject of one lawsuit or another. Understanding the ADA can be a very technical process, but it can also be really simple. The bottom line is this: Ask nicely for what you need, show how meeting your need benefits other people, and work together to make things possible. That's really it.)

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Who is a "qualified individual"?

You are, if you are HIV-positive. According to the US Supreme Court in Abbott v. Bragdon, 1998, a person with HIV is protected by the ADA "from the moment of infection." Even if you are asymptomatic, the ADA protects you.

And you are, if you have a physical or mental impairment that substantially limits one or more major life activities, or if you are a person who has a history or record of such an impairment, or if you are a person who is perceived by others as having such an impairment. The law does not try to name all of the impairments that are covered: it really does involve a case-by-case analysis.

That case-by-case analysis tends to weed out trivial claims, but many claims who are filed by individuals with conditions such as bad backs and emotional problems are not trivial. People with severe depression or a history of other problems are often judged not on the basis of their abilities but rather on stereotypes and fears that employers may associate with their conditions. Such responses by employers could be unlawful.

The law also protects people who associate with people with disabilities. If your spouse or partner is HIV-positive but you are not, and your employer treats you differently because of HIV, then that treatment most likely is discriminatory and violates the law.

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What is a "reasonable accommodation"?

A reasonable accommodation is some modification to your job or workplace that minimizes the impact of your disability on your ability to stay on the job. There is no list of reasonable accommodations, because each situation is different. The idea is that the disabled employee and the employer work together --nicely-- to find the least burdensome middle ground that will let the employee keep working.

The fact that an accommodation is expensive is not necessarily a huge flaw, IF the employer can afford it. On the other hand, an accommodation does not have to be a thing that costs anything at all. Several years ago, Sears & Roebuck did a study and found that of 436 reasonable accommodations provided by the company between 1978 and 1992, 60% cost nothing, 28% cost less than $1,000, and only 3% cost more than $1,000.

The process of figuring out what reasonable accommodation will work in a particular circumstance is supposed to be a process of give-and-take, of compromise. So play nice, all of you.

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How do I ask for a reasonable accommodation at work?

You ask in writing, nicely, and clearly. Use a form for your letter that includes a lot of the magic legal language from above, maybe something like this:

Dear (employer/supervisor): I am a qualified individual with a disability, and in order to continue performing my job as a (job title), I request a reasonable accommodation in the form of a (whatever accommodation you are proposing). Thank you for working with me to accommodate my disability.

Key Points you might want to bear in mind:

   As the employee, you are asking nicely, not making a demand. While the law is on your side in saying that you are entitled to ask for an accommodation, your position is not foolproof. Real life says that often an employer will risk a lawsuit simply to get rid of an employee with complicated needs. This is unlawful, but it happens all the time anyway. Rather than let your employer consider firing you because you were late on the very day that your accommodation was supposed to start, try to keep the process cooperative.

   As the employer, you really do need to cooperate and find a way to keep the employee on the job. First of all, you have an investment in the employee's skills and training and experience which you'd have to endure all over again if the employee has to be replaced, and secondly, an investigation by the Equal Employment Opportunity Commission is a colossal expense and aggravation.

  As the employer, you are not entitled to know what exactly is wrong with your employee. All you need to know is that they are "qualified" under the ADA, and luckily, that's not an assessment that you have to make. You can ask the employee to bring in a letter from their doctor that says they have a disability and makes a recommendation about what accommodation they need. If you are still skeptical that your employee really is disabled, and many disabilities besides HIV are invisible so your skepticism might not be unreasonable, then you can pay for the employee to be examined by your doctor. But you still don't get to know the diagnosis: your doctor is supposed to just tell you whether or not the employee is disabled.

  As the employee, you do NOT have to disclose your diagnosis. And if your disability is one that triggers stigma from other people, like HIV, disclosing might be a bad idea. Get advice from a lawyer before you throw away your right to confidentiality and disclose your private medical information to your supervisor.

  As the employee, especially one with an invisible disability, you should realize that your employer is likely to be a little skeptical. Nobody's going to call you a gold-bricker to your face, but your employer may wonder just what exactly you're trying to pull. Assuming you aren't trying to pull anything, act first to prevent a problem. For instance, rather than let your employer conclude that you are just trying to get out of some part of the job, get a letter from your doctor that says you have a disability, AND a letter from a lawyer that says that the disability you have is covered by the ADA. That way you are providing your employer with both a medical opinion and a legal opinion that your employer can rely on, and your personal information is protected by the doctor-patient and attorney-client privileges.

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What can I do if my request for an accommodation is denied?

If you've made your request in writing, and you've asked nicely, and you've attempted to work with your supervisor and your union rep and your company mentor and anybody else who is on your side, you still have some recourse. You could ask a lawyer who is familiar with the ADA and disabilities such as yours, perhaps from your state's Protection & Advocacy agency (see the list of agencies, usually one per state, at  napas.org, which is the National Association of Protection and Advocacy Services), to write a nice, low-key letter asking your employer to work this out with you.

If all else fails, file a complaint with the EEOC for employment problems, and the Department of Justice for other accessibility problems.

Note: That's just great - you have federal agencies to turn to with your complaint, but there isn't a lot of information available about the nuts-and-bolts of actually filing a complaint. Michigan Advocates Exchange created a guide to filing an EEOC complaint, and it is re-published here with the permission of the MAX Board of Trustees. Click on the "HIV law articles" button above, and select "How to file an EEOC complaint."

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Disclaimer: Look, this is a summary of the ADA, not an exhaustive legal discourse or a complex explanation. There are plenty of resources on the internet if you need to do legal research or get the exact language of the Act. This is designed to be a brief introduction to outline some of the rights and responsibilities that the ADA protects and defines. If you need more information to deal with your particular situation, call a lawyer. Ask for help - the best way to handle a legal problem is to be able to avoid it in the first place.