Report Discrimination – Even Before It Occurs

John Faith
July 3, 2014

One of the questions I am often asked in American with Disabilities Act (ADA) workshops is when can a disabled person allege discrimination, before or after an act occurs? The Americans With Disabilities Act actually allows a person to allege discrimination against a business when he/she has a reasonable belief that discrimination is about to take place.

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Now some would say how can you allege discrimination when nothing has actually happened. The provision is good because the allegation of discrimination allows businesses that are constructing public accommodations to be aware of the guidelines governing ADA access for the disabled. Prior knowledge will save the entity money by allowing for the correction of ADA challenges prior to construction. For example, if a persons uses mobility devices such as a wheelchair and an accommodation’s blueprints call for all stairs to gain access, then it would be impossible for the wheelchair bound person to use the facility.

Having this default called to the attention of the construction team and the owner of the proposed facility beforehand is a win-win situation for all involved. The construction does not have to be put on hold because of permit denial and the disabled person does not have to actually sue the entity. All of the concerns that would render the entity inaccessible to the disabled should be addressed in the planning stage realizing a far less expensive venture for the operation. Public accommodation provisions became effective in January, 1992. So what about buildings constructed prior to that time?

The ADA allows the Attorney General to certify State laws, local building codes and ordinances similar in scope whose accessibility requirements meet or exceed the accessibility requirements for public and commercial accommodations. The certification is only issued after a hearing of interested persons, including persons with disabilities, have an opportunity to contest the issuance of the certification.

We are placing a great deal of emphasis on the Americans With Disabilities Act in our series of postings because the Act impacts every phase of the employment process, including retirement. Many individuals with disabilities work tirelessly in the Federal service. They have the same questions and concerns as anyone anticipating retirement, perhaps even more. They might have asked for a reasonable accommodation within their agency to facilitate the performance of their duties and responsibilities. However, upon retirement, just like other retirees their agency will no longer be responsible for them. Individuals after retirement fall completely under the auspices of the Office of Personnel Management.

Does the Office of Personnel Management have accommodations to answer the challenges and opportunities of the disabled retiree and his/her family? A great deal of communication often in the early stages of retirement is necessary between the federal annuitant and the Office of Personnel Management. OPM is required to follow ADA guidelines ensuring effective communication policies are observed. The ADA requires the establishment of telephone relay accommodations for people who utilize telecommunication devices for the hearing impaired (TDD) or similar devices. The Federal Communications Commission issues all regulations outlining the standards for operating services.