b. A Qualified Person with a Disability
Having an impairment that substantially limits a major life activity may mean that a person has a disability, but that alone still does not mean that individual is entitled to protection under the ADA. A person with a disability must also qualify for protection under the ADA. A “qualified individual with a disability” is someone who meets the essential eligibility requirements for a program, service or activity with or without (1) reasonable modifications to rules, policies, or procedures; (2) removal of physical and communication barriers; and (3) providing auxiliary aids or services for effective communications.18
Essential eligibility requirements can include minimum age limits or height requirements (such as the age at which a person can first legally drive a car or height requirements to ride a particular roller coaster at a county fair). Because there are so many different situations, it is hard to define this term other than by examples. In some cases, the only essential eligibility requirement may be the desire to participate in the program, service, or activity.
What happens if an individual with a disability does not meet the eligibility requirements? In that case, you will have to look further to determine if the person with the disability is entitled to protection under the ADA. When a person with a disability is not qualified to participate or enjoy a program, service, or activity under Title II, there may be ways to enable the individual to participate, including, for example:
-
Making a reasonable modification to the rule, policy, or procedure that is preventing the individual from meeting the requirements,
-
Providing effective communication by providing auxiliary aids or services, or
-
Removing any architectural barriers.
18 28 C.F.R. § 35.105
Reasonable Modification
Public entities must reasonably modify their rules, policies, and procedures to avoid discriminating against people with disabilities.19 Requiring a driver’s license as proof of identity is a policy that would be discriminatory since there are individuals whose disability makes it impossible for them to obtain a driver’s license. In that case it would be a reasonable modification to accept another type of government-issued I.D. card as proof of identification.
Examples of Reasonable Modifications
-
Granting a zoning variance to allow a ramp to be built inside a set-back.
-
Permitting a personal attendant to help a person with a disability to use a public restroom designated for the opposite gender.
-
Permitting a service animal in a place where animals are typically not allowed, such as a cafeteria or a courtroom.
Are there times when a modification to rules, policies and procedures would not be required? Yes, when providing the modification would fundamentally alter the nature of the program, service, or activity.
A fundamental alteration is a change to such a degree that the original program, service, or activity is no longer the same. For example, a city sponsors college-level classes that may be used toward a college degree. To be eligible to enroll, an individual must have either a high school diploma or a General Educational Development certificate (“G.E.D”). If someone lacks a diploma or G.E.D. because of a cognitive disability, would the city have to modify the policy of requiring a high school diploma or G.E.D.? Probably not. Modifying the rule would change the class from college level to something less than college level and would fundamentally alter the original nature of the class.
19 28 C.F.R. § 35.130(b)(7).
Effective Communication
People with disabilities cannot participate in government-sponsored programs, services, or activities if they cannot understand what is being communicated. What good would it do for a deaf person to attend a city council meeting to hear the debate on a proposed law if there was no qualified sign language interpreter or real-time captioning (that is, a caption of what is being said immediately after the person says it)? The same result occurs when a blind patron attempts to access the internet on a computer at a county’s public library when the computer is not equipped with screen reader or text enlargement software. Providing effective communication means offering auxiliary aids and services to enable someone with a disability to participate in the program, service, or activity.
Types of Auxiliary Aids and Services
There are a variety of auxiliary aids and services. Here are a few examples.
-
For individuals who are deaf or hard of hearing: qualified sign-language and oral interpreters, note takers, computer-aided transcription services, written materials, telephone headset amplifiers, assistive listening systems, telephones compatible with hearing aids, open and closed captioning, videotext displays, and TTYs (teletypewriters).
-
For individuals with who are blind or have low vision: qualified readers, taped texts, Braille materials, large print materials, materials in electronic format on compact discs or in emails, and audio recordings.
-
For individuals with speech impairments: TTYs, computer stations, speech synthesizers, and communications boards.
Persons with disabilities should have the opportunity to request an auxiliary aid, and you should give ‘primary consideration’ to the aid requested. Primary consideration means that the aid requested should be supplied unless: (1) you can show that there is an equally effective way to communicate; or (2) the aid requested would fundamentally alter the nature of the program, service, or activity.
Example: A person who became deaf late in life is not fluent in sign language. To participate in her defense of criminal charges, she requests real time computer-aided transcription services. Instead, the court provides a qualified sign language interpreter. Is this effective? No. Providing a sign language interpreter to someone who does not use sign language is not effective communication.
The Cost of Doing Business
The expense of making a program, service, or activity accessible or providing a reasonable modification or auxiliary aid may not be charged to a person with a disability requesting the accommodation.20
Example: What if a person asks for a sign language interpreter at a city council meeting? The cost may not be passed along to the person requesting that accommodation.
20 28 C.F.R. § 35.130(f).
Examples of Barriers to Accessibility
Architectural
-
A building has just one entrance that is up a flight of stairs and has no ramp.
-
The door to the only public restroom in a building is 28 inches wide.
Policies and Procedures
-
Requiring a driver’s license to obtain a library card from the public library.
-
A “No Animals” rule (without an exception for service animals) to enter a pie baking booth at a county fair.
Effective Communication
-
No assistive listening system for public meetings by a City Council.
-
A state’s website that cannot be accessed by blind people using screen reader software or those with low vision using text enlargement software.
A Final Word: Every disability is a disability of one. While some people with a particular disability may not be able to perform a certain task or participate in a particular program, service, or activity, others may be able to do so.
Example: Some people with severely impaired vision can drive safely so long as they use specially prescribed optical aids.
One Man’s Ability – and Disability
Jim Abbott played professional baseball. He was the 15th player to ever debut in the major leagues (and never play in the minor leagues) and had a 3.92 earned run average in his rookie year. Jim Abbott was born with one hand. If his home town had applied a blanket requirement that all little league players must have two hands, Jim Abbott might not have had the chance to develop into the professional athlete that he became.
The key to making correct decisions is an individualized assessment. Avoid blanket exclusions, and evaluate each person based on his or her own abilities.
User Comments/Questions
Add Comment/Question