Written by the Learning Rights Law Center and Dentons US LLP
Note: The answers below are interpretations of the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008 (“ADA”), which became effective as of January 1, 2009, and only applies to discriminatory conduct occurring on January 1, 2009, or later. The ADA and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) are judged under the same legal standards, and the same remedies are available under both Acts. Kemp v. Holder (5th Cir. 2010) 610 F.3d 231, 235.
When may an individual with a learning disability be covered by the Americans with Disabilities Act of 1990 (“ADA”) (42 U.S.C. § 12131) and Section 504 of the Rehabilitation Act of 1973 (“504”) (29 U.S.C. §794)?
The ADA and 504 generally apply to persons with ‘an impairment that substantially limits a major life activity.’ The precise wording in the law is: Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. 28 C.F.R. § 35.104; 29 U.S.C. § 794(b)(1)(A).
See below for further explanation of this definition.
Can a learning disability be a qualifying “impairment” under ADA and 504?
Yes. The ADA and 504 include a broad list of disabling conditions, and learning disability may be one of them provided that the rest of the legal definition is satisfied.
What do “substantially limits” and “major life activity” mean under ADA and 504?
For the purposes of the ADA and Section 504, an impairment “substantially limits” a “major life activity” if it limits the ability of an individual to perform a major life activity as compared to most people in the general population. 29 C.F.R. § 1630.2(j)(1)(ii). To determine whether an impairment substantially limits the ability to engage in a given major life activity, the condition, manner, and duration under which one can perform that activity will be considered, and compared to the ability of most people to participate in that activity. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. 29 C.F.R. § 1630.2(j)(1)(ii).
The determination of whether an impairment “substantially limits” a “major life activity” requires an individualized assessment, which will be straightforward if the individual’s impairment inherently imposes a substantial limitation on a major life activity, including, but not limited to, caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing and working. 29 C.F.R. § 1630.2(j)(3). Major life activities may also include school-related tasks such as reading, concentrating, thinking, and communicating. “Learning” is specifically listed as a major life activity under the ADA and 504. 28 C.F.R. § 35.104.
Major life activities also include the operation of “major bodily functions,” including, but not limited to, functions of the immune system; normal cell growth; digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
How does a person prove that they should be a qualifying individual under the ADA and 504?
The ADA and 504 state that a qualifying individual may be one who is “regarded as having” an impairment as defined above. So in addition to being a person who actually has a disability and has documentation (such as medical records) of having such a disability, a person may be protected under the ADA and 504 if they are perceived to have an impairment by others, even if the person themselves does not perceive the impairment as rising to the level of a disability under the ADA and 504. 42 U.S.C. § 12102(3).
What right(s) do the ADA and 504 protect?
The ADA protects against discrimination by public entities on the basis of disability. The precise language is: No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity. 28 C.F.R. § 35.130.
Specific to employment, the ADA states: No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity. 28 C.F.R. § 35.140. In the employment context, under the ADA, an employee may be entitled to reasonable accommodation or modification in order to ensure their ability to effectively do their job.
504 prohibits disability discrimination by any “program or activity” receiving federal funding. Public schools, and most colleges and universities receive some form of federal funding and therefore must adhere to the protections of 504. 504 ensures that qualifying individuals (persons who meet 504’s definition of a person with a disability) have access to their educational program equal to that of peers with no disabilities. Under 504, a person may be entitled to reasonable accommodation in order to ensure their ability to access the educational program. In terms of the educational context, auxiliary aspects of a publicly-funded education program, such as extra-curricular activities and school housing, generally fall under 504 as well. 29 U.S.C. § 794(b)(1)(A).
504 contains an additional requirement not found in the ADA. It is the requirement that school programs receiving federal funding provide a “free appropriate public education” (“FAPE”) to each qualified individual (students fulfilling the ADA/504 definition of a person with a disabling condition). Mark H. v. Hamamoto, 620 F.3d 1090, 1101 (9th Cir. 2008).
What does “appropriate education” mean?
Section 504 requires recipients of federal funds to “provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap.” 34 C.F.R. § 104.33(a). As defined under Section 504, an “appropriate education” must provide regular or special education and related aids and services designed to meet individual educational needs of persons with disabilities as adequately as the needs of persons without disabilities are met (e.g., implementation of an Individualized Education Program can be one means of meeting this standard). 34 C.F.R. § 104.33(b); see also Ridley School Dist. v. M.R. (3d Cir. 2012) 680 F.3d 260, 280 (“To offer an ‘appropriate’ education under [Section 504], a school district must reasonably accommodate the needs of the handicapped child so as to ensure meaningful participation in educational activities and meaningful access to educational benefits.”).
What does “reasonable accommodation” mean?
As defined under the ADA, in the workplace the term “reasonable accommodation”, also known as “reasonable modifications”, means modifications or adjustments: (1) to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; (2) to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or (3) that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 29 C.F.R. § 1630.2(o). For educational institutions, reasonable modifications include modifications or adjustments to practices, policies and procedures sufficient to provide an appropriate education, and include requiring the educational institution to provide auxiliary aids and services for persons with disabilities, unless to do so would fundamentally alter the nature of the goods, services, facilities, privileges, advantages and accommodations they offer, or would result in an undue financial or administrative burden on the institution.
Is there any disadvantage to seeking a desired accommodation, even if it may not be considered a reasonable one under the law?
In terms of employment, if a person claims to require a certain accommodation, and that accommodation is not deemed to be “reasonable” under the ADA, the employer could potentially use that as evidence that the person is not qualified to perform that job. It is therefore advisable for employees and job applicants to request only those accommodations which they genuinely believe they need in order to perform a job, in order to reduce the chances of being deemed unqualified for the position.
Do the ADA and 504 guarantee “fair treatment” to all persons with disabilities?
The ADA and Section 504 both require the fair treatment of those falling under their provisions, which includes persons with disabilities.
The ADA requires that certain covered entities (i.e., employers, employment agencies, labor organizations, and joint labor management committees) make reasonable accommodations for an applicant or employee’s disability, so long as making such reasonable accommodations does not impose an undue hardship on the covered entity. 29 C.F.R. § 1630.2(b); 29 C.F.R. § 1630.2(o).
Section 504 requires recipients of federal financial assistance (i.e., any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity) to provide a free appropriate public education to each qualified person with a disability within such recipients’ jurisdiction. 34 C.F.R. § 104.3(f).
What should you do if you believe you have a legal claim against an educational program for a violation of 504?
It would be prudent in these cases to seek legal advice. In order to prove that an educational program committed a violation of FAPE under 504, a person must “also demonstrate some bad faith or gross misjudgment by the school or that [the student] was discriminated against solely because of his disability.” D.A. v. Meridian Jt. Sch. Dist. No. 2, 289 F.R.D. 614, 632 (D. Idaho 2013). If a violation was committed, a complaint can be filed online to the Office for Civil Rights, an agency under the U.S. Department of Education. You can read more about the OCR here:
What should you do if you believe you have a legal claim against an employer for a violation of the ADA?
Again, it would be prudent to seek legal advice. If you believe you have been discriminated against on the basis of your disability by the State, local government, or a business, you can file a complaint to the United States Department of Justice’s Civil Rights Division online at ADA.gov. You can read more about the process at: https://www.ada.gov/filing_complaint.htm
Can you sue a state for a violation of the ADA or 504?
The Eleventh Amendment to the U.S. Constitution prohibits a citizen from suing a state in federal court without its consent, under the concept of sovereign immunity. Some public entities (including school districts and their schools) are considered an “arm” of the state, meaning they are protected by the Eleventh Amendment. Courts have held that states are not entitled to sovereign immunity when it comes to matters involving public education. Tennessee v. Lane, 541 U.S. 509 (2004); Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 1174, 484-490 (4th Cir. 2005).
What can a person do if they do not meet the qualification for ADA and 504 protection but they still face challenges in the workplace or educational program due to disability?
Consider speaking to the individuals in charge to discuss what support may be available on an informal (non-mandated) basis. Most educational institutions have a person designated to address inclusion and/or disability support services. Large-scale employers have a human resources department tasked with addressing disability-related challenges; smaller employers must still designate a person to address these issues, even if that person also fulfills other job duties. These people may prove very helpful in supporting your efforts to perform as successfully as possible in your role as a student or employee.
*Neither the Learning Disabilities Association of America, Learning Rights Law Center nor Dentons LLP are providing specific legal advice through this information.