Ginny Dow

The Americans With Disabilities Act ("ADA") was enacted in 1990 to eradicate discrimination against "qualified individuals with a disability." This includes persons with perceived or actual physical or mental disabilities that substantially limit one or more major life activities. Temporary disabilities such as a broken leg, separate shoulder, etc., do not qualify as "disabilities" under the ADA. The ADA requires employers to make reasonable accommodations to allow disabled persons to either take or remain in a position for which they are otherwise qualified. The ADA also protects persons from discrimination based on a known relationship or association with a disabled person. However, an employer is not required to provide any accommodations to this class of people. The ADA applies to all employers with fifteen (15) employees or more.

According to "Overview of The Americans With Disabilities Act, Schiff & Hulbert, Attorneys at Law, A Presentation for Argonne National Laboratory, 1996," pp.1-2)

The Americans with Disabilities Act provides a clear and comprehensive national mandate to end discrimination against people with disabilities; to bring people with disabilities into the social and economic mainstream of American life; to provide enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a role in enforcing those standards on behalf of individuals with disabilities. According to: Teacher’s Insurance and Annuity Association (TIAA) Brochure on ADA, p.2

The act defines being disabled as having a physical or mental impairment that substantially limits one or more major life activities, such as walking, seeing, hearing, etc., or having a record of such an impairment; or being regarded as having such an impairment. An impairment is any physiological disorder, condition, cosmetic disfigurement or anatomical loss affecting one or more body systems, or any mental or psychological disorder. In determining whether an individual is substantially limited in a major life activity, these factors must be considered: the nature and severity of the impairment, its duration or expected duration; and its permanent or long-term impact, or expected impact. (According to: TIAA Brochure, p.3)

Examples of common disabling impairment include: substantial orthopedic, visual, speech, and hearing impairments, tuberculosis, HIV infection, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and emotional or mental illness.

Persons who have completed or are participating in a supervised drug rehabilitation program are protected by the ADA. However, an employer may discipline or terminate an employee for illegal drug use even if that employee is "drug free" at the time of the adverse job action. (According to: Collings v. Longview Fire Co., 63F.3d 838 (9th Cir.1995). The employer’s action must be based on the employee’s use of the illegal drug. Illegal drug use itself (if current) is not protected by the ADA). (According to Overview of the ADA . . .p.42)

Private employers, state and local governments, employment agencies, labor unions, and joint labor management committees must comply with Title I of the ADA. The ADA calls these "covered entities." An employer cannot discriminate against qualified applicants and employees on the basis of disability. The ADA’s requirements apply to employers with 15 or more employees. This includes part-time employees who have worked for them for 20 or more calendar weeks in the current or preceding calendar year. The ADA’s definition of "employee" includes US citizens who work for American companies, their subsidiaries, or firms controlled by Americans outside the USA. However, the act provides an exemption for coverage for any action in compliance with the ADA which would violate the law of the foreign country in which a workplace is located. (According to Compliance Handbook, ADA Watch, Section 504, Supplement No. 217, December, 1996).

Documentation is a critical part of an employer’s efforts and accomplishments regarding compliance with the ADA. It’s important to document all facts and events that have a bearing on the placement of individuals who have disabilities. Thorough documentation will enhance communication with all parties involved, make it easier to resolve issues and provide the basis for a legal defense, if necessary.

Accurate records should be kept of all of the following information and actions:

1. Position requirements and demonstration of the job-relatedness

2. Essential functions

3. Reasonable accommodations considered and implemented

4. Qualification standards, tests, and other evaluations in the placement process.

5. Evidence of job-relatedness of qualification standards.

6. Evaluations of all applicants with regard to qualification standards.

Title I of the ADA prohibits employers from taking certain actions when screening applicants for employment that could have a discriminatory effect. This prohibition has been incorporated into the regulations issued by the US Equal Employment Opportunity Commission (EEOC) to implement Title I. In general, the regulations make it illegal for an employer to:

1. Fail to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled applicant or deny employment to such an applicant based on the need to make reasonable accommodation.

2. Use qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals with disabilities, unless the standard test or criterion is job-related and consistent with business necessity.

3. Fail to select and administer tests to applicants with disabilities who have impaired sensory, manual or speaking skills in a manner that ensures that the test results accurately reflect the skills aptitude or other factors it purports to measure, rather than the disability (unless the test is to measure sensory, manual or speaking skills).

4. In general, make pre-employment inquiries about whether an individual has a disability or about the nature of such disability. (In accordance to ADA Compliance Guide, p.

Individuals with disabilities must be provided access to application materials and interview sites. This may entail ensuring that the interview site is accessible to an individual with a mobility impairment, such as someone who uses a wheelchair. However, accessibility and usability apply to the needs of all qualified individuals with disabilities, including those with visual, hearing, or even mental impairments. Thus, accommodations could include putting up more signs with larger print and tactile markings, installing ramps, relocating the interview or testing site to an accessible location, or providing a reader for a visually impaired applicant who wishes to complete the application in the employer’s office. Employers must bear in mind that a qualified individual with a disability is one who with or without reasonable accommodation could perform the essential job tasks.

In October 1995, the EEOC revised the regulations regarding the reasonable accommodation issue. The EEOC guidelines allow employers to ask "limited questions" over reasonable accommodations under these circumstances:

A. If the employer reasonably believes the applicant will need reasonable accommodation because of an obvious disability.

B. If the employer reasonably believes the applicant will need reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer.

C. If an applicant has voluntarily disclosed to the employer that he or she needs reasonable accommodation to perform the job.

The guidance then permits employers to get relevant information in those situations, while giving applicants the chance to answer practical questions about how they can perform the job. Employers should consult with and involve the disabled employee and his physician in evaluating possible accommodations. Employees often know others with the same disability and can suggest accommodations that have worked for others. Under these circumstances, the EEOC states that employers also may ask a "particular applicant" to describe or demonstrate how he or she would perform the job, even if other applicants were not asked to provide that description. However, discussion over the reasonable accommodation issue at the pre-employment stage is permitted only in limited and individual circumstances.

The ADA forbids employers from discrimination against a qualified non-disabled applicant because the applicant is related to or associated with a disabled person. An employer is permitted to ask questions about an applicant’s ability to perform job-related functions; but the questions should not be phrased in terms of disability. Questions must be related to the ability of the candidate to perform the job in question.

On October 10, 1995, the Equal Employment Opportunity Commission issued revised guidance on the Americans with Disabilities Act, which allows employers more leeway in asking questions about reasonable accommodation before offering a job to a disabled applicant. The new guidance represents "a common sense approach" that is intended to provide employers with the "user-friendly" guidance which is less Proscriptive than the original, according to a commission attorney". (According to the Daily Labor Report, October 11, 1995, pages A-2 and A-3.)

Qualified individuals with disabilities are individuals who have a disability and meet the skill, experience, education and other job related requirements of the position held or desired, and who, with or without reasonable accommodation can perform the essential functions of the position. To evaluate accurately and fairly whether an applicant is qualified, employers must identify and document position requirements and essential functions of the position. The identification of essential functions should be done before conducting interviews. (A Practical Guide to the ADA, Personnel Journal, June, 1992.)

The government established the definition of a qualified person. In order to be protected by the ADA, an employee must meet the prerequisites for his or her position (such as education or training) and be able to perform the essential functions of the job with or without accommodation. If a case is brought to trial, the number one piece of evidence is the Position Description. Requirements that are not listed on the position description, should not be added prior to going to court. Regular and predictable attendance should be on every position description. A doctor must provide certification if an employer tries to establish that the employee is in imminent threat of harm to his/her health and safety. This type of certification is very difficult to obtain. If an employer feels that the person is not able to perform the essential functions of the job with or without accommodation, it is better to risk a suit from an applicant than from an employee. An essential job function is one that is fundamental to the position. The determination of whether a function is essential is made on a case by case basis.

The failure to provide accommodation may be justified where the employer demonstrates that the accommodation would impose an "undue hardship" in its operation. Undue hardship is defined in the ADA as an action requiring a significant difficulty or expense, i.e., an action that is unduly costly, extensive, substantial, disruptive, or that which will fundamentally alter the nature of the program. The employer’s defense is that the cost is excessive compared to the sources of the employer. An employer’s burden in providing undue hardship is very difficult. An employee must be given the chance to pay for an accommodation if that payment would eliminate the undue hardship to the employer (Schiff, et al. P.47).

An individual who believes that he or she has been subject to discrimination or retaliation in violation of the ADA, and who wishes to pursue legal action must first file a charge of discrimination with the EEOC.

People with disabilities comprise the largest and fastest growing minority in the United States. They are also the least understood and most frequently misrepresented minority, due in large measure to the inappropriate and unrealistic portrayal of people with disabilities by the media.

According to the Congressional Research Service, one out of every six Americans has some type of disabling condition. That's more than 43 million people nationwide, more than 1.7 million in Illinois and more than 500,000 in the City of Chicago. Some disabilities are highly visible. People with mobility impairments often use wheelchairs, walker, crutches or other aids. People who are blind or have vision impairments sometimes use guide dogs or white canes.

But many other disabling conditions are invisible: a person may have a hearing impairment, a heart or respiratory condition, or some other disability such as diabetes or arthritis which is not immediately apparent to others.

One thing that all people with disabilities have in common is that they each want to be treated and depicted as a person -- not as an object or some manifestation of a disabling condition. (City of Chicago, Manual of Style for Depicting People With Disabilities in the Media).

Following are some recent actions that are relevant to the Americans with Disabilities Act.

Often, when seeking worker’s compensation or social security disability benefits, an employee will claim that he or she is totally unable to work. To claim disability discrimination under the ADA, however, such an employee must be able to perform the essential functions of his or her job, with or without a reasonable accommodation. Thus some courts will deny ADA relief to plaintiffs who have sought or collected benefits in ancillary disability related proceedings based on the claim that they are totally disabled. (According to: Bates, Meckler, Bulger & Tilson, Employment Law Update, Spring, 1997, Volume 1, No.2, p.3.)

Plaintiff Royce Goane lost vision in one eye due to glaucoma in 1975. With glasses, his overall vision is corrected to 20/20, although he actually is seeing out of only one eye. Doane reported his condition to the police force following his diagnosis and continued working for the next nine years, performing all duties required of a police officer and consistently attaining expert qualification in the use of firearms. After a 1984 eye examination, however, he was given the choice of resigning with a small pension or applying for a 911 communications job. He took the 911 job and made several unsuccessful requests for re-employment, eventually filing suit under the Americans with Disabilities Act. A jury ruled in his favor, awarding him $50,000 in back pay and pension, and a federal judge affirmed the award and ordered his reinstatement. The city appealed, and last summer the eighth Circuit upheld the lower court. (According to Daily Labor Report, January 13, 1998, p. AA-2.)

A Wisconsin psychotherapist with attention deficit disorder who was fired for falling behind on her paperwork has won reinstatement of her claim under the Americans with Disability Act, the US Court of Appeals for the Seventh Circuit has ruled. The court notes that ADA may reach those who may require some kind of accommodation from their employer, "notwithstanding their liability to demonstrate a present impairment that is substantial enough to quality as disabling under the ADA". (According to the Daily Labor Report, Number 9, January 14, 1998, p.AA-1.)

"Weighing in on a questions that has split the federal circuit courts, the US Court of appeals for the third Circuit has ruled that mitigating measure such as medication, used to alleviate physical or mental impairments, should not be considered in determining whether an individual has a disability under the Americans With Disabilities Act (Matczak v. Frankford Candy and Chocolate Co., CA 3, No.97-1057, 11/18/97). the third Circuit joined two other federal appeals courts that side with the Equal Employment Opportunities Commission’s view that people who control their disabilities with medication or assistive devices are still entitled to ADA coverage. (According to Human Resources Report, Vol. 16, No. 1, January 12, 1998, p. 21.)

Denver has been ordered to pay $800,000 for failing to reasonably accommodate three former police officers injured on the job. A former Denver police officer who was forced to retire after he was injured on the job has been awarded $300,000 by a jury hearing the first ADA case tried by the Justice department. In a second case, two other plaintiffs were awarded $250,000 each for the department’s refusal to reassign them to career service positions. In United States v. City and County of Denver, 1996 US Dist. LEXIS 15258 (D. Colo. 1996) The court held that Justice successfully proved that Denver’s policy of not reassigning police officers with disabilities to vacant positions for which they were qualified violated title I. It held further that the city failed to show reassignment would cause an undue hardship. (According to Compliance Handbook, p.1.)

One of the 104th Congress’ first law was the Congressional Accountability Act, extending coverage of several anti-discrimination laws, including section 504 and ADA, to the federal government’s legislative branch. One of the last laws it passed, the Presidential and Executive Office Accountability Act (H.R. 3452), will extend the ADA’s reach to include the executive branch. The act, requiring the White House to comply with eleven federal anti-discrimination laws, including the ADA. It will prohibit employment discrimination and require places open to the public at the White House and executive office buildings to meet section 504 and ADA requirements. The law will take effect no later than October 1, 1998. (According to Compliance handbook, p.1.)

A plaintiff with a learning disability cannot file a wrongful termination suit under state disabilities law because he did not prove that his former employer had knowledge of his disability, the California Court of Appeal has ruled. Although the former sales representative, whose learning disorder has affected his ability to read and write, has a mental disability within the meaning of state law, the court affirmed that he cannot pursue a wrongful termination claim because he presented no evidence that his former employer knew he had such a mental disability. (According to Daily Labor Report, January 13, 1998, p.A-4.)

An employee described as "morbidly obese" may have a disability's discrimination claim under Florida law based on his assertions that an electrical power company denied him promotions because of his weight and that he was subjected to harassment from supervisors and co-workers, the Florida district Court of Appeals has ruled. Judge Emerson R. Thompson, Jr. said that a state trial court erred in ruling that the individual could not pursue a discrimination complaint because state law only protects persons with actual disabilities, not those who are perceived to have disabilities. (According to Daily Labor Report, December 12, 1997, p.A-4)

1. City of Chicago, Manual of Style for Depicting People With Disabilities in the Media

2. Compliance Handbook, Section 504, Supplement 217, December, 1996, Thompson Publishing Company.

3. Daily Labor Report, October 11, 1995, Published by The Bureau of National Affairs, Inc. Washington, D.C. 20037.

4. Daily Labor Report, December 12, 1997, Published by The Bureau of National Affairs, Inc. Washington, D.C. 20037.

5. Daily Labor Report, January 13, 1998, Published by The Bureau of National Affairs, Inc., Washington, D.C.

6. Daily Labor Report, January 14, 1998, Published by The Bureau of National Affairs, Inc. Washington, D.C. 20037.

7. Employment Law Update, Spring 1997, Volume 1, No.2, p.3.

8. Hulbert & Schiff, Attorneys at Law, A Presentation for Argonne National Laboratory, July 8, 1996.

9. Human Resources Report, Volume 16, No. 1, January 12, 1998

10. Personnel Journal, June, 1992, A Practical Guide to the ADA

11. The Americans With Disabilities Act, 9th Annual EEO Conference, November 9, 1995

12. The Technical Assistance Manual - Title I - ADA - Section I-5

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