Many conversations about the Americans with Disabilities Act (ADA) revolve around the employment, accommodations, and accessibility provisions outlined in Titles I, II, & III. But what is included in Titles IV & V of the law? This edition of Ask About the ADA includes a webinar archive explaining the wide variety of issues covered in Titles IV & V.
Watch more archived webinars from the Northeast ADA Center.
NortheastADA.org
Many conversations about the Americans with Disabilities Act (ADA) revolve around the employment, accommodations, and accessibility provisions outlined in Titles I, II, & III. But what is included in Titles IV & V of the law? This edition of Ask About the ADA includes a webinar archive explaining the wide variety of issues covered in Titles IV & V.
Watch more archived webinars from the Northeast ADA Center.
NortheastADA.org
JOE ZESSKI: Hello. Welcome to Ask About The ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to everyday life. On this edition of, Ask About The ADA, we're going to go back to our archives and listen, again, to one of the ADA 101 webinar series. This was the final webinar in that series from earlier this year, ADA 101.5, Titles 4 and 5 of the ADA.
You'll begin by hearing Michelle Alvord of YTI web team introduce the webinar, handing it off to myself and my colleague Christopher Sweet. And then you'll hear us talk about Titles 4 and 5. Again, this will be a little bit longer of an episode. So sit back, listen, and I hope you enjoy.
MICHELLE ALVORD: So without further ado, let me turn things over to Joe Zesski and Chris Sweet.
JOE ZESSKI: Thank you, Michelle. I appreciate it. Welcome, everyone. This is the final webinar in the ADA 101 series, 101.5, the overview of titles 4 and 5 of the ADA. As you heard Michelle mention, this voice you're hearing is Joe Zesski, the program manager at the Northeast ADA Center.
And joining me is our technical assistant and outreach person, Chris Sweet. Hello, Chris. I'll be doing much of the presenting today, but Chris and I will both be fielding questions as we get to the end of the webinar today.
So for the next little while, you'll hear my voice. And then we'll be bringing Chris back in to help answer your questions that you might have after today's presentation. And just as a reminder, the Northeast ADA does not provide legal advice.
And so the information we offer you is technical assistance and meant to be guidance to help understand the Americans with Disabilities Act. Let's talk about what we're going to do today. We're going to first do a brief overview of where we've come so far in this series of webinars that we started back in February.
We are also going to talk primarily, of course, about titles 4 and 5 of the law, what do they cover, what do they impact in terms of the ADA, and its implementation. And, of course, as I mentioned, we will leave plenty of time for questions at the end, where you can certainly ask questions about what we cover today or about other titles of the ADA that we've talked about earlier in the series. Well, for those of you who have tuned in before, I'm glad you stuck with us to the end of the series.
And for those of you who are new or first-time participants, let's go take a look at what we've covered already in terms of the ADA, at least in brief. Just as a reminder, what's in the actual ADA? Of course, the law itself was passed in 1990 and as a Civil Rights Act aimed at creating equal access and equal opportunity for people with disabilities. And it has five major sections known as titles.
Title I, of course, deals with employment, covering private employers with 15 or more employees join labor unions, unions, other collective bargaining units. And the intent of Title I is to ensure that there's no discrimination in all of the employment practices and processes that individuals with a disability may encounter. That covers from recruitment and application, through being hired, being interviewed, and while being on the job as well and making sure there's access to all the benefits and privileges of employment.
A Title I of the ADA is enforced by the Equal Employment Opportunity Commission, the federal agency that oversees most employment related matters. And for those who may not be aware, the ADA also covers state and local government employers of any size. So if an employer is a county, a town, public library, those are no matter what the size may be. If it's a library with 10 employees, but it's a public library, it will be covered under the ADA. Title I deals with those state and local governments and all the instrumentalities that come out of that.
So as you heard me just reference, the public library would be considered Title II, also places of education, community colleges, state universities, police departments, as well as, things that you might more easily think of as state and local government, a county office on aging, a municipal housing office. Those are all Title II. Title III covers businesses, both private and non-profits who fall into one of 12 very broad categories that essentially cover almost any business that is open to the public and engages in commerce. Notably religious institutions are exempt from Title III, as well as private clubs as defined under the Civil Rights Act of 1964, which is a very particular definition and has some specific criteria that go far beyond just being a club.
It's about exclusivity and the means and method that members become involved in the club. So, for example, your town swim club is not going to be exempt from the ADA. It's intended rather to be much more difficult standard to be considered a private club.
Title III public accommodations must make sure that their goods and services are accessible to people with disabilities. And that takes the form of providing modifications, as well as providing effective communication and removing barriers. And then, of course, we have Title IV, which I'll talk about in just a moment, which deals with telecommunication access for people who have certain communication-related disabilities, and Title V, which is a very important, but often under addressed part of the law that has provisions and concepts that apply across the different titles of the law and have a great deal of impact on how the law is carried out and realized day to day.
Before we dive into Title IV, specifically, let's just do a quick refresher on what's considered a disability under the ADA. As we have here, this definition for the ADA comes from the Rehabilitation Act of 1973. However, of course, it's interpreted in a specific way for the ADA.
So a person has a disability if they have a physical or mental impairment, that substantially limits a major life activity, a record of such an impairment, or is regarded as having such an impairment. So we won't go very much into detail about this, but suffice to say, someone either has a condition that substantially limits a major life activity, or they may have a condition that they've either had in the past, or perhaps it's a condition that is episodic, meaning that its impact comes and goes on either irregular or perhaps a regular basis. So, for example, someone may have depression that is treated and managed, but they may have a flare up or perhaps someone has multiple sclerosis, which may go for periods without impacting them, but then they may have a flare up or reoccurrence that is an episodic excuse me condition. In other words, they have a record of it.
And the last part of that definition refers to how someone is treated, if someone is treated in a negative fashion, because they're believed to have a disability, whether or not they, in fact, do have a disability. And, again, we have a whole webinar earlier in the series defining disability under the ADA that you can go back and search for in our webinar archives and in much more detail there. Now that we've sort of refreshed our background, let's begin to move into Title IV.
As I mentioned earlier, Title IV is about telecommunications access. And the reason this title is included was to make sure that the ability of those people who maybe have a hearing-related disability or a speech-related impairment can have equal access to the important public utility of telecommunications. And so part of the intent of this section is to make sure that there's functional equivalent service.
In other words, a person who may need a different approach to telecommunication still can have equal access and equal opportunity to use the telecommunication system. So with this part of the law, TRS were established, Telecommunication Relay Services. And if you're not familiar with those and what they are, I'll explain more detail about them in just a moment.
But essentially, telecommunication relay services allow someone who has a hearing or speech-related disability to access the telephone and the telephone services that are available. This part of the law set up the Federal Communications Commission as the arbiter for the regulations and enforcement of this section of the law. And the FCC actually has quite a bit on their website that you can peruse. And that's actually very helpful in terms of understanding Title IV and both the rights and responsibilities that someone has to telecommunication relay services.
One last provision of this title that I'm not going to spend a great deal of time on, but I did want to make sure I brought to your attention was that Title IV does require public service announcements, in other words, those often short commercials that inform you about different government programs or information public service information that you need to be aware of, any of those PSAs that are funded or produced by a federal agency must have closed captioning. And keep in mind that when this was passed back in 1990, there was a lot less captioning happening. And technology has come a long way. And this had a good influence on helping to move things forward.
So now we certainly often can find captioning generally on most television sets or content, even streaming content, often, there is captioning service, not 100% of the time, but quite frequently. This was sort of the beginning of that process, where public service announcements, again, controlled by the federal government or funded by them needed to have closed captions.
Let me turn back though to truth to the telecommunication relay services. And let's talk about that. You heard me mention just a moment ago that TRS essentially is a way to provide telephone access for people who have hearing or speech-related disabilities.
These TRS services are provided by telephone companies themselves. So the what's known as common carriers in the language of the law are telephone companies. They have an obligation to make sure their services are accessible through providing TRS.
Now there are funds that are provided to cover the costs of providing this. So individuals who use towers of one type or another don't have to pay any surcharge for accessing this service. For those of you who've been a part of the other ADA 101 webinar or who are familiar with some of the ins and outs of the ADA, I'm sure you're aware of the principle that people who receive communication-related auxiliary aids and services cannot be charged a surcharge.
In other words, they cannot be charged an additional fee for either a business, or state, or local government to provide that equal access. And same principle is true here. A person who needs to use TRS does not have to pay any special fee to access those services.
As I mentioned, the FCC, a moment ago, they helped to create guidelines for the operation of these TRS programs to make sure that they are equitable and that they beat the intent of the ADA and Title IV overall. So what are some examples of TRS? There are different types. And people are probably familiar with some of them, if not all of them.
Certainly, TTY is one form. That's Text to Voice, where an individual, who has a hearing-related disability or who is deaf, will use a keyboard, will connect through the TRS services. They will use a keyboard that will send information to third party interpreter who will voice the written text to the person on the other end, thereby enabling two-way communication between someone who is deaf and someone who relies on speech to communicate.
TDD is another system, where keyboards are used essentially to provide two-way communication, direct two-way communication. It's somewhat similar or somewhat of a way to think of texting before texting was involved and texting was here on cell phones. So that's another example.
There's also speech to speech TRS. And that is where someone who may have a speech impairment calls through relay. And, again, with a third-party interpreter, who is proficiently trained and understanding speech impairment is able to voice the conversation of the calling party to someone on the other end who may have difficulty understanding the impaired speech.
So there are other forms as well, but those are just some quick examples of telecommunication relay services. These can be accessed in any state or territory in the US by dialing 7-1-1 So that there's a common number for people to call wherever they are to begin the process. And be aware too, if you're someone who works with the public and/or who may receive calls from someone using a relay service, be aware that when relay services call and they're connecting with a party who is relying on the third-party interpreter to communicate the voice communication, they will often begin by saying, hello, this is relay service, you have a call from x, y, or z.
So be aware that it's not a telemarketer. I'm sure some people are leery if they hear any pause when they pick up the phone that you might be hearing a telemarketer on the other end. It could be a legitimate and very valid relay call. So just be aware of the process involved there.
As I mentioned, the ADA was about equal access and equal opportunity. So individuals who use relay services could only be charged what someone would be expected to pay who was using the same service without a relay, without a relay service involved. So in other words, the same cost as someone who would be making a quote-unquote "traditional telephone call."
Another important thing to keep in mind to that relay services must operate similar to telephone call to the telephone lines, in that they should be available every day of the week, 24 hours a day, just as there would be for anyone who is using a telephone to place or connect a call. Let's go and talk about some of the other guidelines that the SEC has created to make sure there is that equality of access. And you see here on this slide several key principles, first of which is that a relay service can't refuse to accept the call or to place limits on it, just as someone using a traditional landline or cell phone doesn't have a limit imposed by a company on how long they can speak.
The same is true for anyone using relay services. No time limits can be imposed. Also, confidentiality is very important and essential. And just as someone using a landline or a cell phone, again, has an expectation that the telephone provider is not going to record or disclose their information, the same is true for relay services.
And so the FCC has clear guidance about relay providers not being able to basically keep any information following a call or to disclose any conversation that they provide interpreting for via the relay service. So, again, important to keep in mind in regards to privacy. And also, another important point is that conversations must be conveyed accurately and appropriately. So if a provider does not know how to properly interpret in a given context or in a given situation, that's obviously going to be a big problem.
And so interpreters and relays who work for relay services are expected to provide the interpreting services accurately so that the intent and the content of what is being communicated it's done that way accurately and in regard to what the person has said. And we're going to transition into Title V. So Title IV, we dealt with its primary focus was on telecommunications.
Title V is a little bit of what you might think of as being all over the map. It doesn't necessarily have one central theme like with most of the other titles, but rather, it's sort of a composite of different provisions, ideas, or principles that cut across different parts of the law and that affect who the ADA covers. It affects who is or is not in terms of an individual is covered by the ADA.
It sets up some responsibilities for federal agencies and for enforcement of the law, as well as dealing with other concepts that we're going to transition into that relate to implementing the law and making sure that people who have disabilities can access and use the ADA properly and to the fullest extent possible. And one of the provisions that cuts across all the ADA is the right for a person to be protected from retaliation. Someone who has filed a claim, a discrimination complaint under the ADA is protected from being retaliated against.
And so that's an additional remedy, if you will if someone is retaliated against for filing a claim. On the slide you see the quote from the actual title itself, as well as above it, a less technical translation of it. But essentially, the idea of protecting someone from retaliation not only applies to the individual disability.
Certainly, any individual who does file a complaint, as it says, exercises their rights is protected, but it's also protects those who file claims on behalf of a person with a disability. In other words, that could be an advocate. It could be a family member. It could be a co-employee. There are different possibilities, but either way, whether it's a person with disability or someone filing on behalf of them, they are protected from retaliation, intimidation, and coercion.
So, again, this is in order to help secure the ability of someone to file a complaint and feel some level of confidence that if they file a complaint they have protection under law that, let's say, if someone files a complaint against their employer, the employee, the employer cannot fire them simply because they've fired some-- excuse me-- simply because they have filed an ADA related complaint. We're going to talk about what is not a disability. You heard me go over the definition of disability back in the beginning of the webinar.
Title V of the ADA sets out different conditions or factors that were addressed at the wall-- remember, this was passed in 1990 as specifically not disabilities, because there were questions about it that came up during the construction of the law and it being written. And some of these are ideas that we're wrestling with today in terms of implementing the ADA.
For example, the illegal use of drugs is a question that we often get asked about at the Northeast ADA Center. And I'm pretty sure that other ADA centers do as well in terms of the rights of someone who is illegally using drugs. Often this comes up in workplace-related issues under Title I, but someone who is an active user of illegal drugs is not protected by the ADA.
However, if that person is in recovery, then they are protected as someone with a record of a disability. Where this gets even more complicated is often around the issue of medical marijuana, which currently still marijuana is considered illegal in terms of federal law. And this is really an area of a lot of debate and management case to case, when you get down to reality and the state level, because you have conflicts of different laws. And it's not always easy to sort out what applies how it applies best.
There are also other list of conditions that are addressed as not being related to disabilities who are not being considered disabilities. So they range from everything from things that are now more considered identity-related issues, bisexuality, homosexuality, to issues such as compulsive gambling. And so there are a list of these different conditions that are specifically laid out as not being disabilities in terms of the ADA. And so it's important to keep this area of the law in mind as well.
Now I mentioned the ADA and Title V addresses different sections of the law. Title V also addresses how the ADA relates to other laws. And we'll talk about how the ADA interacts with other places, but first and importantly, you should note that Title V specifically states that individuals who have disabilities have the right to bring discrimination claims against state and local government.
Typically, state government is going to be protected under the 11th Amendment. But for the ADA, people are allowed and able to bring discrimination complaints against state and local government, again, because of this provision in Title V. Another provision that often comes up in technical assistance, certainly here at the Northeast ADA, is that the ADA itself doesn't invalidate or override a nondiscrimination law, another nondiscrimination law that provides equal or greater protection.
What exactly does that mean? Well, let's say that the ADA-- think of it as the ADA being a baseline. It's a minimum level of non-discrimination under which someone is protected. So, for example in New Jersey, which is one of the states in our territory at the Northeast ADA, there is the New Jersey law against discrimination.
In the employment provisions of the ADA, private employers with 15 or more employees are covered under the New Jersey law against discrimination. Employers with one or more employees are covered. So more private employers are covered under the local state nondiscrimination law than the ADA.
So in this case, if an employer, a business had only 10 employees, they still have nondiscrimination employment obligations related to people with disabilities, whereas they would not under the Americans with Disabilities Act. So the fact that the ADA does not apply doesn't negate the New Jersey law against discrimination. That's an example to explain that aspect.
Furthermore, the ADA was also specified to apply to Congress. Again, much of what the ADA was meant to address was the fact that laws, until that point, largely not exclusively, but largely had focused on the federal sector, either federal agencies, federal facilities, or federal funds. The ADA went beyond that to cover private employers, state, and local government, private businesses, and public accommodations.
The ADA also extended to cover Congress, which had not been prior to address by nondiscrimination law. And continue on looking at some of the different themes or different provisions throughout the law, first, one of the earliest widely applied standards was related to the Architectural Barriers Act and applied to federal facilities. The ABA, of course, was passed way back in 1968.
So some 22 years before the ADA and as I was just talking about the ADA really expanded coverage in terms of the private sector to what had been addressed before under discrimination law. And so here the US Access Board was empowered and designated to create what we know as the AGAD, the original ADA Guidelines for Accessible Design, which since have been superseded by the 2010 ADA standards for accessible design, but the ADA in Title V established this principle that the Access Board would be responsible for creating the physical access standards required under the ADA.
Furthermore, it addressed an issue that I know our access specialist encounters here at the Northeast ADA in terms of providing technical assistance. And that is the idea of addressing historic properties, historic buildings. For those of you who are on the Title III webinar, you probably remember the slide where we talked about there is no grandfather clause under the ADA. So just because a building was built prior to 1991, when the standards became enforced, doesn't mean that there's no obligation to provide accessibility.
However, it was recognized that there are legitimate historic sites that are designated as historic sites and care needs to be taken on how access might need to be provided. And so the law included a provision in Title V that addressed setting standards and direction. So that the historic significance of qualified historic buildings and facilities wouldn't be destroyed or wouldn't be threatened. And finally, in terms of access to Title V, also designated the National Council on Disability.
Of course, that's the body that provides information to the president about disability policy across the country. And it tasked this group with creating a study and a report to explore the accessibility of national parks, national wildlife, and wilderness areas. Again, these areas are not specifically addressed in the ADA, but this was an important step that was taken under Title V to move the conversation forward to look at how to best provide access to these areas.
And as I mentioned, Title V is a bit scattershot. It addresses many different areas with different principles that are important for understanding the ADA. One area that came up as a question as the law was being written was, how would or would the ADA impact other disability-related programs, either on the state level or on the federal level?
And it was determined and included in Title V that nothing in the ADA would affect the eligibility for these other programs, whether it was a worker's comp program, social security benefits, or some other federal program in terms of disability benefits. So as you may have heard us mention in earlier webinars, the meaning of disability under the ADA is different than the definition of disability for someone who's applying for social security disability or short-term disability, or worker's comp. They all have their different and separate definitions of what is and what constitutes a disability.
Title V also set out the idea that people filing complaints or taking legal action under the ADA do have the right to recover reasonable attorney fees, notably the US. So the Department of Justice or other federal enforcement agencies don't have the right to recover fees for themselves, but other parties do have the right, who prevail, who win their case to recover legal costs, turning the focus more towards the individual. And the person with a disability, again, someone who participates in a program can't be forced to use what's called a special program.
People may remember that, particularly from Title II, of the law, but there's also the principle that someone who has a disability can't be forced to accept the accommodation offered. Now it doesn't mean that a business or a state agency has to provide another one necessarily or has to provide exactly what the individual requests. However, the person has the right to refuse to use an accommodation aid or service if they choose not to.
The person providing the accommodation or benefit is responsible for trying to provide equal access. However, they can't force a person disability to use the offered accommodation. Finally, before we move on from this slide, another key concept is that someone can't claim what often is referred to as reverse discrimination.
In other words, Title V was explicit in that someone can't claim discrimination based on not having a disability. So that was clear that the ADA would not provide protection to someone trying to make that legal claim. Of course, different parts of the law and different areas of the ADA have regulations created by and enforced by different federal agencies.
You have the EEOC Equal Employment Opportunity Commission, which enforces Title I and employment related provisions. You have the Department of Justice, who manages most or the majority of issues related to Title to state and local government, as well as public accommodations under Title III. You have the Department of Transportation, for example, who often deal with transportation-related enforcement under the ADA, as well as some other agencies.
Title V designates the different agencies of what they will be responsible for creating and enforcing, as well as requiring them to set up a means to create public awareness and knowledge about their rights and responsibilities, in other words, technical assistance and to make sure that information gets out to the public. So federal agencies will have 800 telephone numbers. They'll have information on their websites if they have responsibility under the ADA and what that might look like.
So, for example, ADA.gov is the website that the Department of Justice uses. The EEOC on its website has sections devoted to different parts of ADA and employment. Also, an extension that came out of this requirement was, in fact, ultimately the funding, which would go on to create the ADA centers themselves.
Again, ADA centers, like the Northeast ADA, are not a part of the federal government. However, the funds that pay for it and that pay for what we do come from federal agencies that incorporate it as part of their technical assistance and information dissemination plan. So that's why our responsibility in terms of what we do is to provide you and the public with information about the ADA, your rights and responsibilities, whether you're a person with a disability, a family member or friend, a business or state government, or any other part of society, any other person in the community with whatever role you might have.
We're here to provide that information to you in terms of Title V, in particular, one of your best places to go for information, I would recommend, is actually to the text itself. As I mentioned, Title V, I think, is often overlooked. And certainly, in terms of digging into it and its different details, I would recommend reading the actual text of the law to find information and, of course, reaching out to us here at the Northeast ADA or whatever your local data center happens to be.
Follow us on social media. I think you'll find a time where we'll be reaching out at some point to gather input from you about what ADA issues you would like to hear talked about more and what questions you might have that we could answer. Follow us. Stay in touch.
And as always, thank you for joining us today. Thanks as well to Michelle and Sam for providing as always excellent technical support. Thank you, Chris, for helping me today on the webinar.
I look forward to hopefully seeing you all again down the road at one of our future webinars. Thank you, everybody. Thanks, again, for listening to this edition of Ask About The ADA. I hope it gave you more information about Titles IV and V and increased your knowledge.
If you have any questions about what we covered on the webinar or about anything else related to the Americans with Disabilities Act or future Ask About the ADA content, please reach out to us here at the Northeast ADA. You can email us at NortheastADA@cornell.edu. Visit our website Northeast.ADA.org. And, of course, feel free to let us know what you want to hear more about in the future on the podcast.
Thanks for listening. Follow us on social media. And, again, thanks as always to our producer Grace Fairchild. Thanks also to Peter Quinn of the YTI web team for doing final touch ups. And thank you all for being a part of the conversation and for sharing the word about the ADA.