Individuals with disabilities are protected from discrimination by the Americans with Disabilities Act (ADA), as amended. The ADA includes employment provisions.
The ADA is a federal anti-discrimination statute designed to remove barriers that prevent qualified individuals with disabilities from enjoying the same opportunities (including employment opportunities) that are available to persons without disabilities.
Many states also have statutes that protect those with disabilities and some of those laws are broader than the federal ADA. Employers need to be aware of such laws and their provisions.
The ADA was enacted in 1990 to address the problem of discrimination against individuals with disabilities in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, healthcare, voting, and access to public services.
The objectives of the act are to:
- Eliminate discrimination against people with disabilities,
- Fully integrate them into American economic life, and
- Transfer the cost of supporting individuals with disabilities from the public to the private sector.
If your company has at least 15 employees, the employment provisions of the ADA apply. They not only apply to employees, but also to applicants, and include testing, assignments, evaluations, disciplinary actions, training, promotions, medical examinations, layoffs/recalls, terminations, compensation, leave, benefits, and career development, as well as access to the physical structures and jobs.
Title I of the ADA protects qualified individuals with disabilities from employment discrimination. In order to be protected by the ADA, an individual must be qualified to perform, with or without reasonable accommodation, the essential functions of the job. Before making a job offer, employers may not ask job applicants about the existence, nature, or severity of a disability, but may ask about their ability to perform specific job functions.
Many ADA terms are germane to the provisions, and thus warrant definition:
- A qualified individual is one who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of the job.
- A disability is defined as a physical or mental impairment that substantially limits one or more major life activities (“actual disability”); a record of a physical or mental impairment that substantially limited one or more major life activities (“record of”); and when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).
- The concept of essential functions could also use explaining. A function could be considered essential for several reasons:
- The position exists to perform the function;
- Few other employees are available to perform the function, or among whom the function can be distributed;
- A function is highly specialized and the person in the position is hired for special expertise or ability to perform it.
- Major life activities include such things as walking, speaking, breathing, performing manual tasks, seeing, hearing, eating, sleeping, standing, lifting, bending, learning, reading, concentrating, thinking, communicating, caring for oneself, and working. These are only examples, however. Major life activities also include the operation of a major bodily function, such as digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions; functions of the immune system; and normal cell growth.
- The term “substantially limits” is dependent on individual circumstances. “Substantially limits” is a lower threshold than “prevents” or “severely or significantly restricts.” Nine rules of construction must be applied in determining whether an impairment substantially limits a major life activity:
- Apply the term (“substantially limits”) broadly. Do not spend much effort on it.
- Significant or severe restriction is not required. However, not every impairment is substantially limiting.
- Substantial limitation should not be the primary object of attention. You don’t need to perform extensive analysis.
- Perform an individualized assessment.
- You shouldn’t need to use scientific, medical, or statistical analysis to determine whether someone can perform a major life activity compared to most people in the general population.
- Don’t consider mitigating measures. It doesn’t matter if an individual chooses to forgo mitigating measures.
- It doesn’t matter if the impairment is episodic or in remission.
- Individuals do not need to be substantially limited in more than one major life activity.
- Effects of an impairment lasting fewer than six months can be substantially limiting. Impairments that last only a short period of time may be covered if sufficiently severe.
- Reasonable accommodation is any change in the work environment or in the way things are usually done that result in equal employment opportunity for an individual with a disability. You must make a reasonable accommodation to the known limitations of a qualified applicant or employee with a disability unless your company can show that the accommodation would cause an undue hardship on the operation of your business.
- Undue hardship is defined as an action that is excessively costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.
ADA situations must be handled on a case-by-case basis. If an employee or applicant requests accommodation (or any workplace change because of a medical condition), you are to engage in an informal interactive process with the individual to clarify the individual’s needs and identify the appropriate reasonable accommodation.
The Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. Individuals with disabilities who believe that they have been discriminated against in employment may file a charge with the EEOC.
The EEOC tries to resolve discrimination found through conciliation, and obtain full relief for the affected individual. If this is not effective, the EEOC may decide to litigate, or may provide an opportunity to the charging party to initiate a private suit.
Remedies that may be required of an employer who is found to have discriminated against an applicant or employee with a disability include compensatory and punitive damages, back pay, front pay, restored benefits, attorney’s fees, reinstatement, reasonable accommodation, and job offers.
The ADA has produced a substantial number of claims and lawsuits. Many of them involve such issues as the following:
- Although the specific facts determine what must be done, an employer frequently must do such things as providing devices or workplace changes to assist the employee, transfer non-essential job functions, and change schedules consistent with seniority. The courts have normally not required transferring essential functions, changing supervision, permitting indefinite leave, or job misconduct.
- Individuals who are only regarded by employers as having an impairment are not entitled to reasonable accommodation.
- Employees and applicants are protected from retaliation because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding, such as an investigation or lawsuit.