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The Americans with Disabilities Act and Employment Discrimination

The Americans with Disabilities Act and Employment Discrimination

The Americans with Disabilities Act (“ADA”) is a civil rights law passed by Congress in 1990 and amended in 2008, in response to widespread, systemic discrimination against people with disabilities. The ADA, among other things, makes it unlawful to discriminate in employment against qualified individuals with disabilities in job application procedures, hiring, firing, advancement in the workplace, compensation, job training and other terms and conditions of employment.  The ADA covers employers with 15 or more employees, including state and local governments.  It also is applicable to employment agencies and labor organizations, and it covers federal employees under the Rehabilitation Act.

The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities.  A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.  When the ADA was enacted, it did not expressly define “major life activities;” however, the Equal Employment Opportunity Commission (“EEOC”), in its implementing regulations, states that major life activities are basic activities that the average person can perform with little or no difficulty, such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” The EEOC has also identified as major life activities mental and emotional processes, such as thinking, concentrating and interacting with others. 

Although there is no all-inclusive list of major life activities that are covered by the Act, the EEOC has issued regulations that make clear that impairments that are episodic or in remission may be considered disabilities.  In fact, the regulations specifically state that an impairment that is episodic or in remission meets the definition of “disability” if it would substantially limit a major life activity when active. Some examples include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder and schizophrenia.  An impairment such as cancer that is in remission but that may possibly return will also be considered a disability under the ADA amendments. Pregnancy is not a disability under the Act.

The ADA excludes from coverage a person who currently engages in the illegal use of drugs; however, a person who no longer engages in the illegal use of drugs may be an individual with a disability if he or she has successfully completed a supervised drug rehabilitation program or is participating in a supervised rehabilitation program, for example, Alcoholics Anonymous or Narcotics Anonymous.

Under the ADA, employers must make reasonable accommodations that enable employees with disabilities to enjoy equal benefits of employment.  A reasonable accommodation is a modification or an adjustment to a job, the work environment or the way that things are done that enables a qualified individual with a disability to enjoy an equal employment opportunity.  Essentially, this means an opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment as are available to an average similarly situated employee without a disability. 

The ADA requires reasonable accommodation, if that accommodation would not impose an undue hardship, in three aspects of employment:  (1) to ensure equal opportunity in the application process, (2) to enable a qualified individual with a disability to perform the essential functions of a job and (3) to enable an employee with a disability to enjoy equal benefits and privileges of employment.  Reasonable accommodation may include any of the following:

·       Making existing facilities used by employees readily accessible to and usable by persons with disabilities.

·       Job restructuring, modifying work schedules, reassignment to a vacant position;

·       Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials or policies, and providing qualified readers or interpreters.

If a modification or accommodation would impose an undue hardship on the operation of an employer’s business, that employer does not have to provide the accommodation.  “Undue hardship” has been defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources and the nature and structure of its operation. 

Although an employer is required to make a reasonable accommodation to the known disability of a qualified applicant, an employer generally does not have to provide reasonable accommodation unless an individual with a disability has requested one.  Once a reasonable accommodation is requested, the employer and the individual should discuss the individual’s needs and identify the appropriate reasonable accommodation.

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