National Institute of Justice, Washington, DC
Michael J. Russell, Acting Director, National Institute of Justice

This law is predicated on the belief that persons with disabilities have traditionally been isolated and segregated and that this discrimination took many forms, including architectural, transportation, and communication barriers; overprotective rules; exclusionary standards; lesser services, programs, activities, benefits, jobs, or other opportunities; and outright exclusion from certain places and privileges.1

One purpose of the ADA is simple: "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."2 The goal is to provide the estimated 43 million persons with disabilities3 access to employment, to governmental programs, services and activities, and to public accommodations such as restaurants, hotels, theaters, and shopping centers. To achieve this goal, the ADA contains five sections designed to eliminate barriers in employment, public services, transportation, public accommodations, and telecommunication.

The ADA was intended to pick up where the Rehabilitation Act of 1973 left off by expanding coverage to include employers neither receiving Federal funds nor working pursuant to a Federal contract. The ADA also covers access to government facilities and the delivery of services and programs by government agencies.

While the ADA has significant implications for the criminal justice system, law enforcement is mentioned only once in the legislative history of the ADA, and even that is only in reference to persons with a history of illegal drug use.4 Yet experts believe the impact on criminal justice is major:

The ADA may very well be the most significant piece of legislation affecting law enforcement since the Civil Rights Act. It will cause police agencies throughout the United States, as well as other employers, to adjust and, in some cases, completely overhaul their recruitment and selection procedures. Furthermore, if departments do not immediately develop changes in their personnel policies by the time the Act becomes applicable, they will expose themselves to substantial liability.5

Attempts to create an exemption for law enforcement were unsuccessful. Thus, the way the criminal justice community selects and treats its employees and delivers services to the public must be brought into compliance with the ADA. This includes limitations on blanket exclusions and requires a selection process that deals with individuals on a case-by-case basis.

The requirements of the ADA present unique challenges for the criminal justice system. Director, Office of National Drug Control Policy, Lee Brown, in his role as former president of the International Association of Chiefs of Police, pointed this out in a letter to the Equal Employment Opportunity Commission (EEOC), "[W]e do . . . think that the extremely 'physical' nature of law enforcement work, coupled with the 'security/integrity' needs inherent to the job, impart a special perspective to our analysis of the Act."6

The need to have a working understanding of the law itself is critical to beginning to develop strategies for the recruitment, screening, selection, and treatment of police and corrections officers as well as for the delivery of services by criminal justice agencies. This Research in Action report provides a framework to begin to assess ADA's impact on the criminal justice system. Future issues will focus on the delivery by criminal justice agencies of their services to the public as well as on their hiring, promotion, and firing practices.

Understanding the basics

A person has a disability under the law if she or he has a mental or physical impairment that substantially limits a major life activity, such as walking, talking, breathing, sitting, standing, or learning. A person will also be considered to have a disability for purposes of this law if he or she has a record of such an impairment or is perceived or regarded as having an impairment. Those associated with the disabled person are also entitled to certain protections. Family members who need special consideration in caring for someone with a disability may be entitled to some protections under the law. However, the ADA does not require employers to provide reasonable accommodation in these cases.

Equal employment opportunities. Title I of the ADA addresses employment aspects of the law. The law makes it illegal to discriminate against persons with disabilities. These individuals are entitled to equal access to employment, including recruitment, hiring, promotion, and any other benefits and privileges of employment. To be "protected" (that is, covered by Title I of the ADA), the individual must have a disability and be qualified for the job.

To be qualified, the individual must satisfy the job requirements such as education, experience, and skills, and must be able to perform the essential functions of the job, with or without a reasonable accommodation.

Provision of reasonable accommodation. A reasonable accommodation can include modifying existing facilities to make them accessible, job restructuring, part-time or modified work schedules, acquiring or modifying equipment, and changing policies. However, reasonable accommodations will not be required when providing them causes an undue hardship for the agency.

Undue hardship means significant expense or difficulty. More than just money may be involved; it can also mean disruption or fundamental alteration of the nature or operation of the business or agency. Direct threat of serious harm is defined by the law as "a significant risk of substantial harm to the health and safety of others that cannot be eliminated by reasonable accommodation." Direct threat is not a defense to an employer's obligation to provide a reasonable accommodation. A reasonable accommodation is required if it will eliminate the direct threat.

If a police officer were recovering from a communicable disease but was fit for duty apart from the fact he or she would remain contagious for 2 weeks, a reasonable accommodation would be to award him or her 2 weeks of leave. After that, there would be no significant risk in returning to duty.7 Speculative or remote threats will not satisfy this requirement. Such a determination must be predicated on objective evidence.

Accessibility to facilities and in delivery of government services. In addition, Title II of the ADA requires government entities to achieve accessibility to their facilities as well as in the delivery of services and programs. Accessibility encompasses new construction and the alteration of existing facilities. It can mean anything from adding curb ramps to creating parking spaces reserved for persons with disabilities.

Defining disability

A person with a disability is someone who:

o Has a physical or mental impairment that substantially limits one or more major life activities.

o Has a record of such an impairment.

o Is regarded as having an impairment.8

There are several key phrases in this definition: "impairment," "substantially limits," "major life activity," "record," and "regarded as." Understanding these concepts is essential to making an evaluation of whether someone is disabled for purposes of the ADA.

"Impairment." A threshold criterion that must be met under this definition is that there be an impairment" some sort of physiological disorder or mental disorder."9 This definition applies regardless of whether an individual can compensate for the impairment by use of an auxiliary aid or medication. For instance, someone who uses a hearing aid nevertheless has a disability under the ADA even if the device restores the person's hearing to normal levels. Likewise, an insulin-dependent diabetic whose diabetes is fully controlled by the insulin has a disability under the law.

On the other hand, physical characteristics such as hair or eye color or left-handedness do not constitute impairments. Certain personality characteristics such as poor judgment, a bad temper, or lack of dependability are not considered disabilities.

Not all cases are clear cut:

A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment. But a person who cannot read because he or she dropped out of school is not an individual with a disability, because lack of education is not a disability.10

"Substantially limits." Having a disability, in and of itself, is not enough; it must be a disability that substantially limits a major life activity. These types of activities include: walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself, and working.11 Also considered major life activities are the ability to have intimate sexual relations and procreation. For this reason, those with AIDS or HIV infection will fall within the definition.

There are three criteria to consider when determining whether a major life activity is substantially limited by any given condition:

o Its nature and severity.

o How long it will last or is expected to last.

o Its permanent or long-term impact, or expected impact.12

A good rule of thumb is to look at the effect of the condition and not its name.13 So, for example, "an individual with mild cerebral palsy that only slightly interferes with his or her ability to speak and has no significant impact on other major life activities is not an individual with a disability under this part of the definition."14

"Record of impairment." Even if an individual does not currently have a physiological or mental disorder, she or he may still be considered disabled under the three-part definition, inasmuch as those who have a record of an impairment are also protected from discrimination. The law also covers persons who have been erroneously classified as having an impairment. Remember, however, that the im- pairment must have substantially limited a major life activity. Having a record of an impairment, alone, will not satisfy the definition.

"Regarded as having an impairment." A more subtle aspect of the definition of disability is that part that protects those who are perceived to have a disability. How does this occur? Here are some examples:15

(1) A person has high blood pressure controlled by medication. Nevertheless, his employer places him on permanent light duty for fear of a possibility of a future heart attack. In this case, the person has a disability that does not substantially limit a major life activity, but his employer treats him as though it does.

(2) Refusal to hire someone who has severe scars from burns. Here there is no disability nor a limitation of a major life activity. Instead, the fears, stereotypes, and attitudes of others toward these scars are disabling.

(3) Firing someone rumored to have HIV infection, who in fact does not, may violate the law. Even though the individual does not have a disability, she or he is regarded as having a substantially limiting impairment.

There are very subtle differences between these examples. Indeed, they have been described as "all different sides of the same coin."16 The bottom line is that the ADA prohibits discriminating against people who are being treated as if they have a disability.17

Defining ADA exclusions

What conditions are not covered by the ADA? The law explicitly states that certain conditions, including homosexuality, transvestism, bisexuality, transsexualism, voyeurism, exhibitionism, pedophilia, sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and gender-identity disorders are not caused by a physical impairment. Therefore, they are not disabilities.

Persons with temporary conditions are also not usually found to have a disability under the definition. The question is whether the impairment substantially limits one or more major life activities. An example offered by the Equal Employment Opportunities Commission (EEOC) is that of a broken leg. If it heals normally within a few months, there would be no disability. But if the leg heals improperly, causing a permanent limp, or if the leg takes an abnormally long time to heal, during which time the person cannot walk, she or he might be considered to have a disability.18 Pregnancy, for purposes of the ADA, is not an impairment. Moreover pregnancy is addressed in the Pregnancy Discrimination Act, which requires employers to treat pregnancy no less favorably than any other temporary disability.

Also specifically excluded from protection under the ADA are those who currently use illegal drugs.Prior drug addicts, including those who are in the process of, or who have successfully completed, a rehabilitation program, are protected by the law. This protection applies to those with an addiction to drugs or alcohol. It does not apply to the casual or recreational user of drugs or alcohol.

The issue of current drug use or prior drug history has significant implications for criminal justice agencies. Issues as to what constitutes current drug use and whether and under what conditions individuals with a history of drug use may lawfully be denied sworn criminal justice positions will form the basis of a future Research in Action.

Otherwise qualified individuals with disabilities

Having a disability does not automatically entitle someone to protection under the ADA. The ADA is not a guaranteed-jobs law requiring criminal justice agencies to hire persons with disabilities. Nor is it an affirmative action law requiring that preference be given to persons with disabilities over those who are not disabled. Under the ADA, employers are still entitled to hire the most qualified candidate for the job.

The ADA does not safeguard a person with a disability unless the person is also otherwise qualified for the position. In evaluating whether a person with a disability is qualified for a job, two questions should be answered:

(1) Does this person meet the initial job requirements, such as work experience, education, skills, certificates, or licenses?

(2) If so, can the person perform the essential functions of the job, with or without reasonable accommodation?

Defining initial job requirements. In answering the first question, care must be taken to make sure that the specifications for the position are job-related and consistent with business necessity. For example, law enforcement agencies would most likely be permitted to require applicants and employees to have a driver's license, inasmuch as operating a patrol car is an essential part of police work in most jurisdictions. On the other hand, driving a car may not be an essential part of the job of a corrections officer or administrative or clerical employees, and therefore might not be appropriately included as a requirement for these positions.19

Note that the purpose of the law is to integrate persons with disabilities into the work force. It is impermissible to attempt to subvert the intent of the ADA by imposing qualifications and job requirements that are not job-related or only relate to marginal functions of the job.

Persons with disabilities who meet the specified job requirements are not considered qualified unless they can also perform the essential functions of the job with or without a reasonable accommodation. Making this determination also requires answering two questions:

(1) Are the functions truly essential or are they marginal?

(2) Can these essential functions be performed with or without a reasonable accommodation?

Identifying essential job functions. This involves determining whether employees in the position actually are required to perform the function and, if so, whether or not removing the function would fundamentally alter the job.

If the employer rarely requires a specific task, then it may not be appropriate to list the task as an essential job function. In that case, the employer would need to demonstrate that, although the function is rarely performed, to eliminate it would be to fundamentally alter the nature of the job. For example, even if 99 percent of police offi-cers rarely make forcible arrests, departments may establish this as an essential function of the job by showing that the consequences would be significant if a police officer were not able to do so.

Answers will vary not only from job to job, but from department to department as well. The size and location of the agency may play a role in this assessment. Here are reasons offered by the EEOC as to why a job function may be essential:

o The position exists to perform the function.

o There are a limited number of other employees available to perform the function, or among whom the function can be distributed.

o A function is highly specialized, and the person in the position is hired for special expertise or abilities to perform it.20

What factors may be used in determining essential functions of a particular job?21

o The employer's judgment (while the employer may not be second guessed, other factors will also be regarded).

o A written job description prepared before advertising or interviewing for a job (this is not required under the ADA, but it is a good idea to have one that accurately reflects the true nature of the job and is created in advance of the screening and selection process).

o The amount of time spent performing the function (the example of the forcible arrest, used above, might apply to this factor).

o The consequences of not requiring the person to perform this function (the above example of the police officer might apply here).

o The terms of a collective bargaining agreement.

o The work experience of people who have performed the job in the past and work experience of people who currently perform similar jobs. (It is a good idea to talk with employees who have performed the job in the past as well as those who are doing the job now. Do not presume to know what a job involves; ask the people who are doing it.)

o Other relevant factors (this can include the kind of services provided by the employer or the organizational structure of the agency).

The principle is that job requirements should not have the practical effect of imposing a blanket exclusion of a particular disability or class of persons.

Reasonable accommodation, undue hardship, and direct threat

If an otherwise qualified individual with a disability cannot perform the essential functions of the job, the employer may be obligated to provide a reasonable accommodation. However, an "employer has no duty to accommodate an employee with a disability unless the accommodation will enable the employee to perform the essential functions of the position."22 "Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity."23

Defining reasonable accommodation. An employer's duty to reasonably accommodate individuals with disabilities applies to all aspects of employment. This includes the application and selection process, an employee's ability to perform the essential functions of the position currently held as well as those desired and the benefits and privileges other employees without disabilities enjoy.

This duty, however, only applies to known physical or mental disabilities. It is usually the responsibility of the person needing an accommodation to request one. An employer's applications, test announcements, or advertisements may request persons with disabilities requiring an accommodation to participate in the application process to inform the employer within a reasonable time prior to applying or interviewing for a position or taking an examination.24

Here are five additional explanations of reasonable accommodation:25

o A reasonable accommodation must be an effective accommodation.

o The reasonable accommodation obligation applies only to accommodations that reduce barriers to employment related to a person's disability; it does not apply to accommodations that a disabled person may request for some other reason.

o A reasonable accommodation need not be the best accommodation, as long as it is effective for that purpose.

o An employer is not required to provide an accommodation that is primarily for the employee's/applicant's personal use.

o An individual is not required to accept an accommodation if the individual has not requested an accommodation and does not believe that one is needed.

An employer, for example, might offer to raise a worktable so that a disabled employee's wheelchair would fit under it. The employee would be entitled to decline accepting the higher table as an accommodation; the individual might prefer the lower table to permit easier use of a computer keyboard in her or his lap.

When is an accommodation effective? When it enables the person to perform the essential functions of the job. The accommodation should avoid limiting, segregating, or classifying the individual.

What happens if an applicant or employee refuses an accommodation? Remember, employers are not required to provide the accommodation the person requests, although where possible it is advisable to do so. The employer does not even have to provide the best accommodation. The accommodation must be effective in helping the individual perform the essential functions of the job. If the individual chooses not to accept this accommodation, there is a risk that doing so will render her or him unable to carry out the essential functions of the job. When that happens, the individual is no longer "otherwise qualified" for the position.

Examples of reasonable accommodations. Because the same disability can manifest itself very differently in two different people, accommodations require a case-by-case determination, as noted above. The following list of possibilities is not meant to be exhaustive.26

Making facilities accessible and usable. For instance, providing designated parking spaces for those with disabilities if parking is provided to others.

Job restructuring. This does not include reassigning essential functions of the job. It can include exchanging or reassigning marginal functions, or changing how and when essential functions are performed.

Modified work schedules. This might include part-time work.

Flexible leave policies. Accommodations do not include paid leave, but could include leave without pay.

Reassignment to a vacant position. This is new to the ADA and applies to incumbents only and not to applicants.

Acquisition or modification of equipment and devices. Examples include TDD's (telecommunications for the deaf) and apply to job-related equipment only. Employers are not required to provide devices for the personal use of the individual.

Adjusting and modifying examinations, training materials, and policies. This includes using training sites that are accessible.

Providing qualified readers. This does not mean two people must be hired to do one person's job.27

Providing qualified interpreters. This can be done on an as-needed basis.

There may be times when providing an accommodation will not be required. Obviously, no accommodation is required when it would not enable the individual to perform the essential functions of the job.

Likewise, no reasonable accommodation will be required if it would impose an undue hardship on the employer or a direct threat to the health and safety of the employee or others is created, which cannot be eliminated by a reasonable accommodation.

Defining undue hardship. The ADA defines this term as "significant difficulty or expense." What may be an undue hardship for one criminal justice agency may not be a hardship for a different agency in different circumstances. Accommodations may constitute undue hardship if they are unduly costly, extensive, substantial, disruptive, or would fundamentally alter the nature or operation of the agency.28

"An undue hardship may be something less than a cost that would drive the employer to the verge of going out of business, but at the same time it must impose more than a negligible cost."29

Defining direct threat. This involves a significant risk of substantial harm based on objective evidence and not mere speculation. It cannot be predicated on some remote possibility in the future but must be a present risk. Employers are required to reduce or eliminate the risk with an accommodation. When this is not possible, then a refusal to hire due to direct threat may be appropriate.

Deciding what accommodation to provide. The best place to start is with the person requiring the accommodation. Often she or he will know what accommodation will work and how to obtain that accommodation as cost-efficiently as possible. It may also be a good idea to consult with other employers and local vocational rehabilitation agencies. The Job Accommodations Network (JAN), offered by the President's Committee on Disabilities, is an information and reference service that suggests accommodations. JAN may be reached at 1-800-ADA-WORK.

Accessibility to programs and services

The ADA not only addresses how criminal justice agencies are to treat their own employees under Title II but also governs how they are to treat members of the general public who may have a disability. Although Title II went into effect on January 26, 1992, many of its requirements have been in effect for federally assisted programs for nearly 20 years under the Rehabilitation Act of 1973. The ADA merely expands coverage to all government programs, services, or activities. However, a significant consequence of the ADA was to bring to the attention of the public at large the rights of those with disabilities to enjoy both equal employment opportunity and equal access to programs and services.

Title II applies to any governmental agency regardless of its size and requires the agency to make sure that its programs, services, and activities are accessible to persons with disabilities. This affects two areas: (1) the services and programs delivered by the agency, and (2) physical access to the facilities where these programs, services, and activities are offered.

Determining accessibility of programs and services. To ascertain if the agency is meeting the requirements of the ADA, the offered programs, services, and activities in their entirety need to be examined and the following questions asked:

o Are any modifications to the agency's policies, practices, or procedures necessary to ensure accessibility?

o Do any eligibility criteria eliminate or tend to screen out a qualified individual with a disability from enjoying the benefits of these programs, services, or activities?

o Do any policies or practices segregate persons with disabilities from others participating in these programs, services, or activities?

o Are any of these programs, services, or activities delivered at a location or facility that has the effect of denying persons with disabilities the right to enjoy the benefits of these programs, services, or activities?

o If alternative services are offered to persons with disabilities, are these benefits unequal to those offered to the public at large?

If the answer to any of these questions is "yes," the agency may need to revise the way it offers its programs, services, and activities. Modification will not be necessary, however, if doing so fundamentally alters the nature of the program, service, or activity or causes an undue burden. Undue burden under Title II is analogous to undue hardship under Title I, and means "significant difficulty or expense . . . taking into account such factors as the nature and cost of the action, the financial resources of the site or a parent organization, the relationship of the site to the parent organization, and the type of the parent organization."30

Is it always illegal to have discriminatory practices or policies? Obviously not. An agency is allowed to take into account the safety of the public. So, for example, prohibiting persons with heart disease from riding on a roller coaster at a county fair might be a permissible rule with a discriminatory effect.

Determining physical access to facilities. Are criminal justice agencies expected to rebuild or renovate their facilities? The answer is a qualified "no." Criminal justice agencies are not expected to "retrofit" their existing buildings. Nor are they expected to alter historical landmarks. A rule of thumb is to look at the program, not the building. Is it possible to change the way the program is delivered rather than the building? Examples include moving the program or service to an accessible part of the building, such as the first floor, providing home delivery of the service, or telephoning the person with a mobility impairment. If so, then remodeling the delivery of the service rather than the building in which it is delivered may suffice. A little creativity can go a long way in complying with this part of the ADA.

New construction or alterations to existing buildings, however, must comply with the ADA. The Architectural and Transportation Compliance Board (the "Access Board") has issued proposed accessibility guidelines for State and local governments. These guidelines are expected to have special considerations not originally contemplated for courthouses and correctional facilities. Until the final guidelines are issued, however, agencies may choose between two different sets of architectural standards: the Uniform Federal Accessibility Standard (UFAS) or the ADA Accessibility Guidelines (ADAAG).

What must be done at the administrative level to comply with Title II of the ADA? Several things. Some of these administrative requirements will only apply to entities with 50 or more employees. A word of caution on calculating the number of employees. The size of a particular entity will be computed based on the number of employees not only in the department, but also on the number of employees in the city or county in which the specific department operates. Therefore, only the smallest of jurisdictions will be exempt from most administrative requirements.

What are these requirements?

o Self-evaluations of programs, services, and activities delivered should be conducted and a study made of whether the policies and practices prevent persons with disabilities from enjoying the benefits and privileges of them. For entities with 50 or more employees, the self-evaluation must have been completed by January 26, 1993, and be made available to the public for 3 years.

o Transition plans for entities with 50 or more employees are required if structural changes are necessary in order to make programs accessible.

o Public notice must be given to all interested parties of their rights and protections under the ADA. This notice can include signs, posters, and pamphlets and should be made in accessible formats.

o ADA compliance officers must be designated for entities with 50 or more employees to provide a contact point for individuals who need information on the ADA and to assist in the employees' education in the law.

o A grievance procedure must be created and implemented for entities with 50 or more employees to handle the receipt and processing of complaints as well as their resolution.

More questions remaining

Since enactment of the ADA, criminal justice agencies have begun to apply the ADA requirements. But at this juncture, there often seem to be more questions than answers about how to implement the ADA.

The law affects virtually every facet of the application, screening, and selection process for corrections and law enforcement personnel. Careful consideration of actions is required as there are, as yet, no certainties about how the courts will interpret the ADA. As aptly put in the October 1991 issue of Fire & Police Personnel Reporter, "Professionals can act only as weathervanes, and not forecasters."

Notes

1. Americans With Disabilities Act (ADA), 42 USC, Section 12101(a)(5).

2. ADA Section 12101(b)(1).

3. ADA Section 12101(a)(1).

4. Appro Exchange, "Get Ready for the Disabilities Act," July 1991, p. 7, reprinted from Law Enforcement News, a publication of John Jay College of Criminal Justice, New York.

5. T. Schneid and L. Gaines, "The Americans With Disabilities Act: Implications for Police Administrators," Police Liability Review, Winter 1991: 4.

6. Lee Brown, "Model Response to EEOC's Regulations Governing the Americans With Disabilities Act (ADA)," unpublished mem- orandum by the International Association of Chiefs of Police to its membership, April 3, 1991.

7. Equal Employment Opportunity Commission, Technical Assistance Manual (TAM), Section 4.5.

8. TAM, Section 2.2.(a)(i).

9. C. Feldblum, "The Americans With Disabilities Act: The Definition of Disability," The Labor Lawyer 7, 11 (1991).

10. TAM, Section 2.2(a)(i).

11. TAM, Section 2.2(a)(ii).

12. TAM, Section 2.2(a)(iii).

13. TAM, Section 2.2(a)(iii).

14. TAM, Section 2.2(a)(ii).

15. Examples from TAM, Section 2.2(c).

16. Feldblum, p. 16.

17. Ibid.

18. TAM, Section 2.2(a).

19. D. Snyder, The Americans With Disabilities Act, Labor Relations Information System, 1991: 82.

20. TAM, Section 2.3(a).

21. Suggestions from TAM, Section 2.3(a).

22. TAM, Section 3.1.

23. R. Fitzpatrick, "Reasonable Accommodation and Undue Hardship Under the ADA," Federal Bar News & Journal, January 1992.

24. Snyder, p. 177.

25. Suggestions from TAM, Section 3.4.

26. From TAM, Section 3.5.

27. See also Snyder, p. 167.

28. TAM, Section 3.9.

29. Fitzpatrick, p. 73.

30. Bureau of National Affairs, Americans With Disabilities Manual (ADAM), Washington, D.C., monthly, Section 40:0006. Paula N. Rubin, a lawyer, is a Visiting Fellow at the National Institute of Justice, coordinating NIJ's initiative to research, develop, and deliver publications and training for the criminal justice system on the Americans With Disabilities Act as well as other human-resources management issues.

Supported under award number 92-IJ-CX-0009 from the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author and do not necessarily represent the official position of the U.S. Department of Justice. What's in a Name?

In 1973 when the Rehabilitation Act was signed into law, it used the term "handicapped" to describe persons with disabilities. Since that time, individuals with disabilities have indicated their preference for the term "disability."

Many terms used to describe certain disabilities invoke stereotypes and can be dehumanizing. Here are some terms to avoid with suggested substitutes:

Avoid . . . Instead say . . .

Handicapped, invalid, disabled Person(s) with disabilities

Victim of epilepsy, Officer Smith has epilepsy,

arthritis Lt. Jones has arthritis

Deaf-mute, deaf and dumb Deaf, hearing impaired, speech impaired "Legal Ease"

The ADA uses numerous terms to describe its requirements and the obligations of those covered by the law. Here is a brief index and short explanation of some of the key words and phrases commonly used in the ADA.

Disability (1) A mental or physical impairment that substantially limits a major life activity; (2) a record of having such an impairment; (3) being regarded as having such an impairment.

Impairment A physiological or mental disorder.

Substantial limitation When compared to the average person: (1) an inability to perform a major life activity; (2) a significant restriction on how or how long the activity can be performed; or (3) a significant restriction on the ability to perform a class or broad range of jobs.

Major life activity Basic functions that the average person in the general population can do with little or no difficulty such as walking, seeing, hearing, breathing, speaking, procreating, learning, sitting, standing, performing manual tasks, working, or having intimate sexual relations.

Otherwise qualified A person with a disability who satisfies all of the requirements of the job such as education, experience, or skill and who can perform the essential functions of the job with or without reasonable accommodation.

Essential functions The fundamental, not marginal, duties of a job.

Reasonable A change in the application process, work environment, or job descriptions involving marginal functions accommodation of the job, or the use of modified or auxiliary devices that enable a person with a disability to perform the essential functions of the job without causing an undue hardship or direct threat to the health and safety of herself or himself or of others.

Undue hardship Significant difficulty or expense relative to the size and overall financial resources of the employer.

Direct threat A significant risk of substantial harm based on valid, objective evidence and not mere speculation.

ADA Issues in the Criminal Justice Community

Future Research in Action issues will discuss such questions about the ADA's impact as the following:

Conditional Offer of Employment

o How should a conditional offer be developed in order to be legally sound?

o Under what circumstances may a conditional offer be withdrawn?

o Can agencies develop a pool of qualified candidates from which to pick employees, both sworn and unsworn?

Medical Exams and Medical Inquiries

o What constitutes a medical exam or inquiry?

o What impact does this have on administering polygraph exams?

o How can agencies effectively screen applicants while still making good-faith conditional offers of employment?

Psychological Exams

o When may a psychological exam be given?

o When does a psychological exam test medical issues as opposed to common personality traits such as poor judgment or quick temper?

Agility Tests

o What impact is there on applicants if incumbents cannot pass the same agility test? Does this create a new hiring standard?

o What is the ADA's position on fitness for duty tests for incumbents?

o If administered prior to extending a conditional offer of employment, what precautions can be taken to ensure that an applicant is fit enough to take the agility test?

Visual Acuity

o Will stringent eye standards withstand the scrutiny of the ADA?

o What impact will vision impairments or learning disabilities such as dyslexia have on the selection and training process?

Light Duty

o If permanent light-duty positions exist, what obligations exist to make the same or similar positions available to other employees? To applicants? Does this create new hiring standards?

o If a light-duty position is vacated, must it be made available to another person with a disability?

Drugs and Alcohol

o What does the ADA mean by "current use" and what constitutes the successful completion of a rehabilitation program?

o What questions can be asked of an applicant preoffer regarding drug and alcohol consumption?

o What about the impact of a former drug user with or without a criminal record on the security and integrity of the agency? Director's Notes

The National Institute of Justice launched an initiative on the Americans With Disabilities Act (ADA) to examine the implications of the Act for criminal justice agencies at the State and local levels. The ADA affects hiring and employment policies and practices as well as delivery of services.

It poses unique challenges for criminal justice agencies, especially where the traditional physical requirements of law enforcement and corrections duties are involved.

The NIJ initiative has two goals: to provide information on the requirements of the ADA and to offer technical assistance and training to criminal justice professionals in dealing with this law.

This Research in Action report is the first in a series designed to explain how the ADA will affect the criminal justice system. It presents an overview of the law and a brief legal analysis of its provisions. Future titles in the series will examine such topics as hiring practices, delivery of inmate services, emergency response systems and telecommunications devices for the deaf (TDD's), and writing job descriptions for positions in the corrections profession.

Through its new initiative, the Institute is responding to the need for understanding of the Act in the criminal justice field, and the new opportunities it offers persons with disabilities for access to the mainstream of society.

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