Americans with Disabilities Act
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m43
The “Americans with Disabilities Act of 1991” is a comprehensive attempt to eliminate most forms of discrimination against disabled persons. The most relevant provisions of the law are summarized below.
1. EMPLOYMENT
No employer (generally any organization engaged in interstate commerce that has 25 or more employees through July of 1992, or 15 or more employees thereafter) may discriminate against any “qualified individual with a disability” on the basis of the disabled person's disability “in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”1 A qualified individual with a disability is defined as a disabled person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”2 The Act includes within the definition of prohibited discrimination a failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer].”3 The term disability is defined by the Act as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”4 The Act specifies that “the term `disabled' or `disability' shall not apply to an individual solely because that individual is a transvestite.”5
Do these prohibitions apply to churches? Churches are not specifically exempted from these provisions. Therefore, they presumably would be covered if they met the definition of an employer (i.e., at least 15 employees, and involvement in interstate commerce). Obviously, most churches will be exempt as a result of having fewer than 15 employees. Those with 15 or more employees will only be subject to the law if they are engaged in “an industry affecting commerce.” Whether a church with 15 or more employees will satisfy this test will depend on several factors, including the number of interstate commercial transactions (buying and selling of services or merchandise) in which the church is involved, and how narrowly or expansively the courts will define the term affecting commerce.
2. PUBLIC ACCOMMODATIONS
The Act specifies that “[n]o individual shall be discriminated on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”6 Places of public accommodation are defined to include private establishments whose operations “affect commerce.” They are specifically defined to include auditoriums or “other places of public gathering,” day care centers, and “private schools.” Prohibited discrimination includes “a failure to remove architectural barriers, and communication barriers, that are structural in nature, in existing facilities . . . where such removal is readily achievable . . . .”7 If removal of a barrier is not readily achievable, then prohibited discrimination includes a failure to make the accommodations available “through alternative methods if such methods are readily achievable.”8 Churches are specifically exempted from the ban on discrimination in public accommodations. Section 307 of the Act specifies that these provisions “do not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.”
3. CONCLUSIONS
There are a number of significant issues that unfortunately are not addressed specifically in the Act. First, is the typical church having few if any interstate transactions covered by the employment and public accommodation provisions? What activities will involve a church in interstate commerce? Second, how broadly will the term disability be defined? Will it include alcoholics, drug users, and AIDS victims? If a church is covered under the law, could it be sued for refusing to hire an AIDS victim or an alcoholic who is disabled but capable of working (with or without reasonable accommodation)? Church leaders need to be informed about this Act and its possible application to churches and church--operated facilities.
For related information on this topic see the following articles:Regulation of Charitable Solicitations
Limitations on Charitable Giving
Federal and State Securities Laws
Judicial Resolution of Church Disputes
The Civil Rights Restoration Act of 1987
Political Activities by Churches and Other Religious Organizations