THE AMERICANS WITH DISABILITIES ACT:
WHAT ADOPTION AGENCIES NEED TO KNOW
by Madelyn Freundlich
The Americans with Disabilities Act [ADA], signed into law on July 26, 1990, prohibits discrimination on the basis of disability in employment and in programs and services provided by state and local governments, commercial facilities, and certain types of private agencies. By its specific terms, the ADA applies to all adoption agencies, irrespective of the number of employees. Public adoption agencies are covered under Title II and private adoption agencies are covered under Title III of the Act. The ADA contains important requirements designed to protect the interests of individuals with disabilities -- requirements that may affect the way in which agencies utilize disability-related criteria in the selection of prospective adoptive parents.
This article reviews the non-discrimination mandates of the ADA, discusses who is protected by the Act, and outlines the sanctions for ADA violations. It addresses such questions as:
Can an adoption agency have a policy under which individuals who are blind or deaf are automatically rejected from consideration as adoptive parents for safety reasons?
Can an adoption agency reject an individual who successfully completed a drug rehabilitation program two years ago and is no longer using drugs?
Can an adoption agency refuse to consider as adoptive parents persons who are HIV infected?
The Basic Requirements of the ADA
The ADA prohibits discrimination on the basis of disability. The non-discrimination rule is stated in Title II, which applies to public adoption agencies, as:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
In Title III, the rule that applies to private adoption agencies (which are considered "public accommodations" under the ADA) is stated as:
No individual shall be discriminated against 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.
The broad principles underlying the non-discrimination rule of the ADA are equal opportunity to participate and equal opportunity to benefit. With regard to public agencies, these principles have long been in place as a result of The Rehabilitation Act of 1973, and the ADA confirms these mandates on public agencies in Title II. The ADA, however, also prohibits, in Title III, disability-based discrimination by certain private entities such as adoption agencies.
The ADA Requirements for Private Agencies
The ADA, for the first time, applies the principles of equal opportunity to participate and equal opportunity to benefit to private adoption agencies. One of the key ADA provisions is that adoption agencies may not use "standards or criteria or methods of discrimination that have the effect of discriminating on the basis of disability." The ADA lists a number of "specific prohibitions". Of particular relevance for adoption agencies is the specific prohibition against "imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities from fully and equally enjoying" any services "unless the criteria can be shown to be necessary for the provision" of those services.
One of the factors that can be used to justify the use of disability-related screening criteria is safety. If, however, safety is used to justify the screening out of individuals with disabilities, the decision must be based on actual risks and not on mere speculation, stereotypes, generalizations or unfounded fears about individuals with disabilities. Similarly, agencies may use the justification of "direct threat" when employing disability-related screening criteria. The law states that an agency is not required to permit an individual to participate in or benefit from a service when "that individual poses a direct threat to the health and safety of others". However, "direct threat" defined as "a significant risk of harm to the health or safety of others that cannot be eliminated" by modifications in policy, practice, or procedures must be determined on the basis of an individualized assessment. The ADA further requires that the determination of "direct threat" be based on:
reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modification of policies, practices, or procedures will mitigate the risks.
These provisions make clear that the ADA is violated if an agency categorically rejects individuals with disabilities based on vague standards related to "safety" or "direct threat." Individualized assessments, drawing on objective data and a careful weighing of risks and opportunities to mitigate those risks, must support the rejection of individuals with disabilities from consideration as prospective adoptive parents. When such individualized assessments are utilized, the result may well be an acceptance of an individual with a significant disability, such as, for example, a woman who has crippling degenerative arthritis but whose home has been thoroughly adapted to enable her to function and whose husband is actively involved in parenting and home management.
Who is Protected Under the ADA
The ADA -- whether applied to public or private adoption agencies -- protects three categories of individuals with disabilities:
(1) persons who have a physical or mental impairment that substantially limits one or more major life activities;
(2) persons who have a record of a physical or mental impairment that substantially limits one or more of the individual's major life activities; and
(3) persons who are regarded as having such an impairment, whether they have the impairment or not.
The regulations on the ADA provide guidance on the types of conditions that constitute protected disabilities. Protected "physical impairments" include: orthopedic, visual, hearing and speech impairments; cerebral palsy; epilepsy; muscular dystrophy; heart disease; cancer; diabetes; HIV, whether symptomatic or non-symptomatic; tuberculosis; drug addiction; and alcoholism. Protected "mental impairments" include mental retardation, emotional or mental illness, and specific learning disabilities. Certain mental impairments are explicitly excluded from ADA protections, including sexual behavior disorders, compulsive gambling, kleptomania, and pyromania.
With regard to what constitutes a "substantial limitation" on a "major life activity," the ADA regulations state that major life activities include such activities as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." There is no absolute standard for determining when an impairment is a "substantial limitation." Generally, however, the rule is that there is a substantial limitation when "an individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people."
It is usually clear who is covered under the first two categories of individuals with disabilities -- those who currently have and those who have a record of a physical or mental impairment that substantially limits one or more major life activities. Those who are protected because they are "regarded as" having such an impairment, whether they actually have the impairment or not, typically fall within three situations:
(1) the individual has a physical or mental impairment that does not substantially limit major life activities but is treated as if he or she does;
(2) the individual has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment; and
(3) the individual has no impairment but is treated as if he or she does.
Examples of individuals who are protected under the "regarded as" category would include an individual with mild diabetes that is controlled by medication but who is nevertheless prohibited from receiving a service because of diabetes; an individual with a prominent facial disfigurement who is prohibited from receiving a service because of beliefs that others would be upset by her appearance; and an individual who is excluded from a service because of an untrue rumor that the individual has HIV.
Two additional areas in which questions related to ADA protections often arise are drug addiction and HIV infection. In the area of drug addiction, the ADA does not extend its protections to individuals who are currently using illegal drugs. The ADA defines "current illegal drug use" as the "illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem." "Current illegal drug use", consequently, does not encompass any use of illegal drugs at any point in a person's life. The ADA does protect a person who is not currently using drugs and who is currently participating in a supervised rehabilitation program or who has successfully completed a supervised drug rehabilitation program or otherwise has been rehabilitated successfully. The ADA does not permit the rejection of an individual solely on the basis of a past history of drug treatment or because he or she is currently in a drug rehabilitation program.
The ADA explicitly prohibits discrimination based on HIV infection, and, as a result, adoption agencies may not categorically reject individuals as prospective adoptive parents based on HIV. The law protects individuals with HIV disease, both symptomatic and asymptomatic; persons who are regarded as having HIV, whether they have the disease or not; and persons who have a known association or relationship with an individual who is HIV-positive. The question often arises as to whether an agency may exclude a person with HIV because that person allegedly poses a direct threat to the health and safety of others. The U.S. Department of Justice has taken the position that "in almost every instance, the answer to this question is no." Interpretations of the ADA require that "direct threat" be shown in relation to the risk of HIV transmission in the course of providing the service. Considerations related to quality of life or anticipated life span have not been viewed as constituting a "direct threat" to health or safety. As a result, agencies may not reject individuals on the basis of HIV simply because they believe that these individuals will be unable to provide for children in a "permanent" way.
Enforcement under the ADA
For public adoption agencies, the enforcement provisions in Title II of the ADA mirror the remedies, procedures and rights set out in The Rehabilitation Act of 1973. When a public agency subjects an individual to discrimination based on disability, the individual may file a complaint with the Department of Justice and/or file a private lawsuit, seeking injunctive relief, money damages, and reasonable attorneys fees.
The ADA establishes two avenues for enforcement of Title III against private adoption agencies: private suits by individuals who are subjected to discrimination; and suits by the Department of Justice when there is reasonable cause to believe that there is a pattern or practice of discrimination or the discrimination raises an issue of general public importance. When a private individual sues, he or she may obtain injunctive relief but may not obtain money damages or civil penalties. When the Department of Justice brings suit, the Department may seek injunctive relief, monetary damages, and if necessary to vindicate public interests, civil penalties of up to $50,000 for the first violation and up to $100,000 for any subsequent violation.
The Americans with Disabilities Act provides federal civil rights protections to individuals with disabilities, guaranteeing them equal opportunity to participate in and to benefit from services provided by public and private adoption agencies. A key provision of the ADA is the prohibition against imposing or applying eligibility criteria that screen out or tend to screen out individuals with disabilities unless the criteria can be shown to be necessary for the provision of the service. "Safety" and "direct threat" can be used to justify the use of disability-related criteria to screen out individuals from consideration as prospective adoptive parents. The law, however, requires individualized assessments based on actual risks and the use of reasonable judgment, based on current medical knowledge or on the best available objective evidence, in determining the risks involved and the actual abilities and disabilities of the individual. Categorical rejection of individuals with disabilities as prospective adoptive parents on such bases as blindness, deafness, HIV infection, or history of drug use and treatment will violate the ADA and expose adoption agencies to liability. Knowledge of the ADA requirements combined with sound casework practice will ensure that agencies meet their responsibilities to individuals with disabilities who seek to adopt.
For Additional Information
ADA Information Line:
U.S. Department of Justice World Wide Web Page: http://www.usdoj.gov. The Americans with Disabilities Act: Questions and Answers. U.S. Department of Justice, Civil Rights Division, Disability Section [available through the ADA Information Line].
Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS. U.S. Department of Justice, Civil Rights Division, Disability Section [available through the ADA Information Line].
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