The Americans with Disabilities Act

1
The Americans with Disabilities Act
Idaho Task Force on the Americans with
Disabilities Act Idaho affiliate of the DBTAC
2
Inclusion Acceptance

• This presentation was developed by the Idaho Task
  Force on the Americans with Disabilities Act, and
  is provided at no cost solely for training
  purposes. It cannot be altered except by written
  permission from the Idaho Task Force on the ADA.
  None of the contents of this presentation is
  intended to provide legal advice. It is intended
  only to provide a general overview of the ADA.
  Please direct questions about specific situations
  to your legal counsel.

3
Enactment and effective date

• The ADA is a civil rights law that was enacted on
  July 26, 1990.

4
Titles I, II III

• Title I- Employment
• Title II- Government Services
• Title III- Public Accommodations

5
ADA Fact

• There are actually 5 titles to the ADA..

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Disability Rights Law An Overview

• Legal and Political roots of the ADA are deep in
  the Civil Rights era of the 1960s

7
Architectural Barriers Act of 1968

• Requires certain federally financed buildings be
  designed and constructed to be accessible
• This is the cornerstone of later efforts to
  guarantee access in federally funded facilities

8
ADA Fact

• In 1990, Congress estimated 43 million Americans
  had one or more physical or mental disabilities.
• In the mid-90s that figure was revised to 49
  million Americans.

9
Scope of the ADA

• The scope is broad. The rights that are protected
  are parallel to those protected for women and
  racial, ethnic and religious minorities.

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Scope of ADA

• In employment, the ADA prohibits discrimination
  against qualified individuals with disabilities
  in public and private sector employment.
• This includes a requirement that those employers
  covered under the Act make reasonable
  accommodations.

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Title I- Employment

• Title I of the ADA prohibits discrimination
  against persons with disabilities in employment
  by businesses having 15 or more employees, or by
  State and local governments.

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ADA Fact - Idaho

• Idaho prohibits discrimination in employment by
  businesses having 5 or more employees, not 15

13
Title I

• Title I, with respect to private employers, is
  enforced by the Equal Employment Opportunity
  Commission (EEOC).

14
Definition of Disability

• Is based on the definition under the
  Rehabilitation Act. It reflects the specific type
  of discrimination experienced by people with
  disabilities.

15
Definition of Disability

• It is not the same as the definition in other
  laws such as
• Workers Compensation
• Social Security
• Disabled Veterans

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Three Prongs of the Definition

• Person with a physical or mental impairment that
  limits one or more major life activities
• Person with a record of such a physical or mental
  impairment
• Person who is regarded as having such an
  impairment

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Association

• An entity may not discriminate against individual
  or entities because of their relationship with a
  person with a disability

18
Retaliation or Coercion

• Retaliation or coercion is prohibited under the
  ADA

19
Physical Impairments

• Any physiological disorder or condition,
  cosmetic disfigurement, or anatomical loss
  affecting one or more of the following body
  systems neurological musculoskeletal, special
  sense organs, respiratory (including speech
  organs), cardiovascular, reproductive, digestive,
  genitourinary, hemic and lymphatic, skin and
  endocrine. (This list is non-exhaustive)

20
Mental Impairment

• Any mental or psychological disorder, such as
  mental retardation, organic brain syndrome,
  emotional or mental illness, and specific
  learning disabilities. (This list is
  non-exhaustive)

21
First prong

• Having a disability that substantially limits a
  major life activity

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Substantially Limits

• Means the major life activity is restricted as to
  the conditions, manner or duration under which it
  can be performed in comparison to most people.

23
Three factors to consider

1. The nature and severity of the condition
2. How long it will last or is expected to last and
3. Its permanent or long term impact, or expected
   impact.

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Combination of Impairments

• An individual may have two or more impairments,
  neither of which alone constitute a disability,
  but taken together may be considered disabling.

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Temporary Impairments

• May or may not be disabilities.
• The question is answered by looking at the
  extent, duration, and impact of the impairment.

26
Major life activities include

• Caring for oneself
• Performing manual tasks
• Walking
• Seeing
• Hearing
• Speaking

• Breathing
• Learning
• Working

27
Case law around the country has included the
following in the list of major life activities

• Bathing
• Dressing
• Toileting
• Sleeping
• Throwing
• Using stairs
• Traveling
• Attending school

• Sexual activities
• Concentrating
• Reproducing
• Interacting with others
• Writing
• Thinking
• Squatting

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V. Mitigating measures
29
Sutton v. United Airlines

• Court considered whether impairment should be
  evaluated with regard to mitigating measures or
  treatment.
• Twin female regional airline pilots with myopia
  sued UAL for not hiring them for their
  uncorrected vision.

30
Sutton v. United Airlines (cont.)

• Court ruled that ADA requires a present
  substantial limitation. If corrected, no
  substantial limitation of major life activity.
• Individualized inquiry. Look at the effect of
  the impairment.
• Also look at the negative as well as the positive
  effects from treatments or mitigating measures.

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ADA Fact

• Substantial limitation is assessed with regard to
  mitigating measures.

32
Second prong

• A record of having a disability

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For example

• A history of mental illness
• Heart disease
• Cancer
• An incorrect classification such as mental
  retardation

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Third prong

• Regarded as having a disability

35
In other words

• A person who is not substantially limited but is
  treated as such
• A person whose substantial limitation is only the
  result of the attitudes of others
• Someone who has no impairment but is treated as
  such

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What does substantial limitation mean?

• A person with a substantial limitation is unable
  to perform a major life activity that a person in
  the general population could perform
• A person is restricted in the condition, manner
  or duration that the average person can perform
  the same major life activity

37
Exclusions

• A person who currently illegally uses drugs is
  not protected by the ADA when the covered entity
  acts on the basis of such use alone.
• However, an individual who is engaged in or has
  completed drug rehabilitation and is no longer
  using drugs is protected under the ADA.

38
Some important distinctions

• The use of a drug must be illegal to be exempt
  from the definition of disability not the
  substance itself.
• Addiction is covered under the definition of
  disability but not current illegal use.
• If a person was addicted in the past or is
  perceived as addicted they would be covered.
• Casual users in the past are not covered.

39
What about alcoholism?

• People who abuse alcohol are considered disabled
  even if they are currently using. A person who
  is an alcoholic is considered a person with a
  disability under the ADA.

40
Exclusions

• Homosexuality and Bisexuality
• Transvestitism, transsexuals, pedophilia,
  exhibitionism, voyeurism, gender identity
  disorders not resulting from physician
  impairments, or other sexual behavioral
  disorders
• Compulsive gambling, kleptomania, or pyromania
  or
• Psychoactive substance use disorders resulting
  from current illegal use of drugs.

41
Title I of the ADA

• Employment Issues

42
Qualified Individual

• Individual who satisfies the requisite work,
  experience, education and other job-related
  requirements of the employment position such
  individual holds or desires, and who, with or
  without reasonable accommodation can perform the
  essential functions of such position.

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Steps to Determine Whether an Individual is
Qualified

1. Determine if the individual meets the necessary
   prerequisites for the job and
2. Determine if the individual can perform the
   essential functions of the job, with or without
   reasonable accommodation.

44
Essential Functions

• The ADA requires that the employer focus on the
  essential functions of a job to determine whether
  a person with a disability is qualified.

45
Reasonable accommodations

• Employers must make reasonable accommodations to
  known physical or mental limitations of a
  qualified applicant or employee with a disability
  unless the employer can demonstrate that the
  accommodation would be an undue hardship

46
Definition of Reasonable Accommodation

• Any modification or adjustment to a job, an
  employment practice, or the work environment that
  makes it possible for an individual with a
  disability to enjoy an equal employment
  opportunity.

47
Required in three areas

• Ensure equal opportunity in application process
• Enable qualified individual with a disability to
  perform the essential functions of a job and
• To enable an employee with a disability to enjoy
  equal benefits and privileges of employment.

48
Prohibits discrimination in any other terms,
conditions and privileges of employment including

• Recruitment
• Hiring, promotion, tenure
• Rates of pay
• Job assignments
• Leave
• Training and development

49

• Social activities or
• Any other term, privilege or condition of
  employment.

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Reasonable Accommodation

• Required in three areas
• To ensure equal opportunity in the application
  process
• To enable a qualified individual with a
  disability to perform the essential functions of
  a job and
• To enable an employee with a disability to enjoy
  equal benefits and privileges of employment

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What are some forms of reasonable accommodation?

• Job restructuring
• Modifying work schedules
• Making facilities accessible
• Acquiring or modifying equipment or devices
• Hiring readers, interpreters and assistants
• Reassignment to a vacant position

52
Do I have to hire an applicant with a disability
even if they are not qualified?

• No. A qualified individual with a disability is
  one who satisfies the requisite skill,
  experience, education, and other job-related
  requirements of the position and can perform the
  essential functions of the job with or without
  reasonable accommodation.

53
ADA Fact

• Personal items are generally not required as
  forms of reasonable accommodation.

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Lets talk about undue hardship.

• It is the responsibility of the employer to
  provide a reasonable accommodation unless it
  would be an undue hardship.
• Undue hardship is defined as an action requiring
  significant difficulty or expense, extensive,
  substantial disruption or something that would
  fundamentally alter the nature of employment.

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Essential Job Functions

• These are the fundamental job duties of the
  employment position. They do not include marginal
  functions.

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Essential Job FunctionsQuestions to Ask

1. Are other employees in the position actually
   required to perform the function?
2. Would removing that function fundamentally change
   the job?
3. Does the position exist to perform the function?

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Questions Cont

1. What is the number of other employees available
   to perform the function, or among whom the
   function can be distributed?
2. What is the degree of expertise or skill required
   to perform the function?

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Evidence to look for

1. Employers judgment as to what is essential
2. Written job description
3. Amount of time spent on the task
4. Terms of a bargaining agreement
5. Consequences of not performing the task
6. Work experience of current or former incumbents

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Determining Essential Function

• Focus on the purpose of the function and the
  result to be accomplished rather than on the
  manner in which the function presently is
  performed

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Recruitment and Hiring

• ADA does not require employers to undertake
  special activities to recruit people with
  disabilities
• However, recruitment activities that tend to
  screen out individuals with disabilities may
  violate the ADA

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Recruitment and Hiring

• Pre-offer inquiries about a disability, or about
  the nature of severity of a disability on an
  application, forms in a job interview, or in
  background or reference checks are a problem
  under the ADA.

62
Pre-Employment Testing

• ADA has two requirements in relation to tests
• 1. If a test screens out or tends to screen out
  an individual with a disability or a class of
  such individuals on the basis of a disability, it
  must be job-related and consistent with a
  business necessity and
• 2. There must be accommodations in administering
  testing.

This applies to all kinds of tests, including but
not limited to aptitude tests, tests of
knowledge and skill, intelligence tests, agility
tests, and job demonstrations.
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Medical Examinations

• An employer may not make medical inquires or
  conduct a medical examination until after a job
  offer has been made.
• A job offer may be conditioned on the results of
  a medical exam or inquiry only if it is required
  for all entering employees in similar positions.

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Medical Examinations

• The employer may make a job offer conditional on
  the satisfactory outcome of a medical exam or
  inquiry providing that the employer requires such
  exam for all entering employees in a particular
  job category, not just the individual with the
  disability, or those whom the employer believes
  may have a disability.

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What about safety issues?

• An employer may require that an individual not
  pose a direct threat to the health and safety of
  others.

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Conditional Job Offer

• If a conditional offer is withdrawn, employer
  must show
• 1.Reasons for the exclusion are job-related and
  consistent with business necessity, or that the
  person is being excluded to avoid a direct
  threat and that
• 2. No reasonable accommodation was available that
  would enable this person to perform the essential
  job functions without significant risk to health
  or safety, or that such an accommodation would
  cause undue hardship.

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Post-employment Medical Exams

• Must be job-related and justified by business
  necessity.
• May be conducted when there is evidence of a job
  performance or safety problem.
• May conduct to determine fitness to perform a
  particular job.
• May perform voluntary exams that are part of
  employee health programs.

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Results of Medical Exams

• All information gathered must be collected and
  maintained on separate forms, in separate medical
  files and must be treated as a confidential
  medical record, not put in the employees
  personal file.

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Enforcement of Title I

• File a complaint with the Equal Employment
  Opportunity Commission
• File a private lawsuit
• Take the complaint to dispute resolution

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Conclusion

• An employer or other covered entity may not
  limit, segregate or classify an individual with a
  disability, on the basis of the disability, in a
  manner that adversely affects the individuals
  employment.

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Other Important Acts

• Air Carriers Access Act
• Section 508- Information Technology
• Transportation
• IDEA

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ADA on the Web

• DOJ
• www.usdoj.gov/crt/ada/adahome1.htm
• EEOC
• www.eeoc.gov
• Access Board
• www.access-board.gov
• Job Accommodation Network (JAN)
• www.jan.wvu.edu

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ADA Technical Assistance

• Access Board
• Technical Assistance 800-872-2253
• Department of Justice
• Technical Assistance 800-514-0301
• Equal Employment Opportunity Commission
• Technical Assistance 800-669-4000
• Publications 800-669-3362