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3 IMPACT OF THE AMERICANS WITH DISABILITIES ACT ON TRANSIT AGENCY LIABILITY By Larry W. Thomas, The Thomas Law Firm, Washington, D.C. I. INTRODUCTION Because of the transformative impact of the Americans with Disabilities Act of 1990 (ADA),1 this digest is a comprehensive analysis of the law and claims under the Act against transit agencies, as well as the ADAâs relationship to the civil rights laws and whether transit agencies also may be held liable in tort for violating the rights of individuals with disabilities. This digest analyzes key provi- sions of the ADA, federal regulations, and guidance issued in November 2015 by the Federal Transit Administration (FTA) and discusses relevant case law.2 Part II of this digest provides an overview of the ADA and discusses its history, purposes, and five titles. Part III of this digest analyzes the ADA Amend- ments Act of 2008 (ADAAA)3 and its impact on claims brought under the ADA, in part, because of the ADAAAâs rejection of Supreme Court cases that had narrowed the intended breadth of the ADA. The 1 Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. Â§Â§ 12101â12213 (2018)). 2 In 1998, TCRP issued a report addressing tort liabil- ity under the ADA, RobeRt H. HiRscH, tcRP LRD 11: PotentiaL toRt LiabiLity foR tRansit agencies aRising out of tHe ameRicans witH DisabiLities act, (Transportation Research Board, National Research Council, 1998). In 2003, a report addressed the general impact of the ADA on transit operations, caRoLyn b. witHeRsPoon, Donna s. gaLcHus & susan KeLLeR, tcRP LRD 19: imPact of tHe ameRicans witH DisabiLities act on tRansit oPeRations, (Transportation Research Board of the National Acade- mies, 2003). In 2007, the TCRP issued a collection of Fed- eral Transit Administration (FTA) letters of findings and compliance assessments, sHeLLy bRown, tcRP LRD 23: tHe ameRicans witH DisabiLities act: tHe feDeRaL tRansit aDministRationâs LetteRs of finDings anD comPLiance assessments, (Transportation Research Board of the National Academies, 2007). In 2011, a report on reduction in service and fare increases discussed the ADA and other civil rights laws, LaRRy w. tHomas, tcRP LRD 35: ReDuc- tions in tRansit seRvice oR incReases in faRes: civiL RigHts, aDa, ReguLatoRy anD enviRonmentaL Justice imPLications, (Transportation Research Board of the National Acade- mies, 2011). 3 Pub. L. No. 110-325, 122 Stat. 3553 (2009) (codified at 29 U.S.C. Â§ 705, 42 U.S.C. Â§Â§ 12101, 12102, 12111, 12112, 12113, 12114, 12201, and 12211 (2018)). ADAAA also made several important changes to the ADA, such as amending the definition of the term disability and adding a list of major life activities for which an impairment would be considered a disabil- ity. Since the enactment of the ADAAA, numerous courts have heeded Congressâs instruction to con- strue the ADA âin favor of broad coverage of indi- viduals â¦ to the maximum extent permittedâ by the Act.4 Notably, however, of the forty-seven transit agen- cies that responded to a survey conducted for this digest, twenty-seven agencies reported that since 2008 they have had fewer ADA claims, whereas only eight agencies stated that they have had more claims.5 Five agencies reported that their number of claims or cases has been about the same since 2008. 6 Part IV discusses Title I of the ADA and discrimi- nation in employment against individuals with dis- abilities. As an employer, a transit agency is a covered entity under the ADA. In addition to the issue of whether an individual has a disability, claims under Title I may involve a covered entityâs failure to make a reasonable accommodation for an applicant or an employee with a disability, whether an employeeâs use of illegal drugs and/or whether an employeeâs use of alcohol in the workplace may pre- clude employment, or whether a covered entity may make medical inquiries or require a medical exam or a drug test of an applicant or employee as a condi- tion to employment. Part V discusses Title II of the ADA that prohibits discrimination against individuals with disabilities, including those who use wheelchairs, by public enti- ties providing public services, including transporta- tion services. Part V covers, in particular, the U.S. Department of Transportation (DOT) regulations in 49 C.F.R. parts 37 and 38 that establish minimum accessibility standards for transportation vehicles, including rapid rail vehicles, light rail vehicles, buses, vans, commuter rail cars, intercity rail cars, 4 42 U.S.C. Â§ 12102(4)(A) (2018). 5 See Appendix C, Transit Agenciesâ Responses to Ques- tion 1. 6 See id. One agency stated that it was unable to answer the question. Six agencies did not respond to the question.