The
Americans with Disabilities Act: What Adoption
Agencies Need to Know
I. What is the ADA?
II. Are adoption agencies covered by the
ADA?
III. What are the basic requirements of
the ADA for adoption agencies [services and
programs]?
IV. What does the ADA require of private
adoption agencies for the first time?
V. Who is Protected Under the
ADA?
VI. What Are the ADA protections with
regard to drug addiction?
VII. What are the ADA protections with
regard to HIV infection?
VIII. What are the penalties for violating
the ADA?
Some Case Examples:
I. What is the ADA?
Signed into law July
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.
II. Are adoption agencies covered by the
ADA?
Yes. Public agencies are
covered by Title II and private adoption
agencies are covered by Title III.
III. What are the basic requirements of
the ADA for adoption agencies [services and
programs]?
Public adoption
agencies: 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.
Private adoption
agencies: 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. [Note: private
adoption agencies are considered "public
accommodations"]
For both types of agencies, the basic
requirements are:
- Equal opportunity to
participate
- Equal opportunity to
benefit
IV. What does the ADA require of private
adoption agencies for the first time?
Key ADA provision: adoption agencies
may not use "standards or criteria or
methods of discrimination that have the effect
of discriminating on the basis of
disability."
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.
There are justifications
for using disability-related screening
criteria:
Safety. But the decision must be based
on actual risks and not on mere speculation,
stereotypes, generalizations or unfounded fears
about individuals with disabilities.
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.
- 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" must be determined on the basis of
an individualized assessment.
- 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.
Application: selection
of prospective adoptive parents:
1. ADA is violated if
agency categorically rejects individuals with
disabilities based on vague standards related to
"safety" or "direct threat."
2. 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.
V. Who is Protected Under the
ADA?
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.
For Categories 1 and 2 [have or have a
record of having]:
Protected Impairments:
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 [recently decided by the US
Supreme Court]; 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.
"Substantial
limitation" on a "major life
activity"
Major life activities:
"caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking,
breathing, learning and working."
Substantial limitation:
general 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."
For Category #3 ["regarded as"]:
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:
-
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;
- an individual who is
excluded from a service because of an untrue
rumor that the individual has HIV.
VI. What Are the ADA protections with
regard to drug addiction?
Not protected: individuals who are
currently using illegal drugs.
"Current illegal
drug use": 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."
Protected: 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.
May not discriminate
against individual solely on the basis of a past
history of drug treatment or because he or she
is currently in a drug rehabilitation program.
VII. What are the ADA protections with
regard to HIV infection?
The US Supreme Court has
ruled that the ADA prohibits discrimination
based on HIV infection -- may not categorically
reject individuals as prospective adoptive
parents:
-
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.
May not exclude a person
with HIV because that person allegedly poses a
direct threat to the health and safety of
others. 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.
VIII. What are the penalties for violating
the ADA?
For public adoption agencies:
An 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.
For private adoption agencies:
1. Private suits by
individuals who are subjected to discrimination
-- may obtain injunctive relief but may not
obtain money damages or civil penalties
2. 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 --
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.
Some Case Examples:
How the ADA May Affect
Adoption Policy and Practice
Example #1:
Mr. and Mrs. Smith apply
to the agency to adopt a healthy newborn. Mr.
Smith admits to having used intravenous drugs
while in his late teens and early twenties. Now
29, he states that he has not used illegal drugs
for six years. Mr. Smith voluntarily discloses
that he contracted HIV as a result of his
intravenous drug use. Mrs. Smith does not
volunteer any information about her HIV status,
and by law, the agency make not seek this
information. The agency is concerned that Mr.
Smith's history of past drug use and his current
HIV status and the uncertainty about Mrs.
Smith's status raise serious issues in relation
to adoptive parenting. The agency is concerned
that a child placed with the Smiths may not have
the benefit of a family over the long term and
would prefer not to approve the family.
Example #2:
Ms. Jones, age 36,
applies to the agency to adopt a child from
Eastern Europe or Russia. Although she has been
gainfully employed for ten years, she admits to
having fought depression since she was a
teenager. She shares with the social worker that
she has been twice hospitalized for attempting
suicide, once during her freshman year of
college and most recently four years ago after
the death of her mother. During this most recent
hospitalization, she took a three month leave
from her job. She is on medication and her
therapist feels that her condition is at present
under control. The agency is concerned about Ms.
Jones' psychiatric history.
Example #3:
Mr. and Mrs. Day apply
to a adopt a child who has Fetal Alcohol
Syndrome and Attention Deficit Hyperactivity
Disorder. Mrs. Day has Multiple Sclerosis (MS)
and is confined to a wheel chair. Mr. Day is in
good health and has played an important role in
supporting Mrs. Day's efforts to lead a
productive life. The home is fully adapted and
the Days have an extended network of friends and
family. The agency has had a policy under which
they refused to consider any adoptive applicant
with MS and who was wheelchair-bound. With the
passage of the ADA, the agency is aware that it
must reconsider this policy, but it continues to
have grave concerns about the appropriateness of
approving an applicant with these types of
physical disabilities. The agency worries about
the present and future care that a child may
receive.
Example #4:
Ms. Browne, whose baby
is due in three months, is working closely with
the agency to select the adoptive family for her
child. The agency has approved a range of
families, including one couple in which the wife
is currently in remission for cancer and whose
prognosis is good and another couple in which
the husband is significantly overweight. Ms.
Browne does not wish to give either couple any
consideration as she wants a "perfectly
healthy" family for her child. The agency
is finding that birth mothers involved in the
selection process increasingly are not willing
to consider families with health problems.
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