The Americans with Disabilities Act

1
The Americans with Disabilities Act

• 2007 Issues Forum

2
The Road to the ADA

• Soldiers Rehabilitation Act 1918
• Civilian Rehabilitation Act 1920
• Architecture Barriers Act of 1968
• Rehabilitation Act of 1973
• Education for All Handicapped Children Act 1975
• The Americans with Disabilities Act of 1990

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ADA Purpose and Goals

• ADA Title One Purpose
• The Americans With Disabilities Act is not an
  affirmative-action law. Its an equal opportunity
  law. The objective is not to create jobs for
  people with disabilities, but to make it possible
  for them to fill jobs that would exist in any
  case.
• Goals
• Equality of Opportunity
• Full Participation
• Independent Living
• Economic Self-Sufficiency

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The ADAThree Titles

• Title One Employment Provisions
• Employers with 15 or more employees
• Enforcement by the EEOC
• Title Two Public Facilities and Services
• State and local government
• Enforcement by the DOJ
• Title Three Private Facilities and Services
• restaurants, hotels, theaters, convention
  centers, retail stores, shopping centers,
  pharmacies, doctors' offices, hospitals, etc.
• Enforcement by the DOJ

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Who Is Covered?

• Physical or mental impairment that substantially
  limits one or more of a major life activity.
• Major Life Activities Learning, Walking, Seeing,
  Hearing, Sitting, Standing, Breathing, Performing
  Manual Tasks, Ability to Care for Oneself
• A record of such an impairment
• Regarded as having such an impairment.

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Key ADA Terms

• Reasonable Accommodations
• Modification or adjustment to a job or the work
  environment that will enable a qualified
  applicant or employee with a disability
• To apply for jobs
• Perform the essential job functions
• Assure that a qualified individual with a
  disability has rights and privileges in
  employment.
• ADAs reasonable accommodation rule cannot force
  changes to the point that the employer is not
  getting the performance required to support that
  part of the business. EEOC equates the
  reasonable in the phrase reasonable
  accommodation with effective.

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What Are Reasonable Accommodations?

• Applying for a job
• Large print application
• Interpreter
• Job coach
• Assistance with on-line applications
• Accessible location

8
What Are Reasonable Accommodations?

• Performing essential functions
• restructuring of existing facilities
• restructuring of the job
• modification of work schedules
• reassignment to another position
• modification of equipment
• installation of new equipment
• provision of qualified readers or interpreters

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What is not a Reasonable Accommodation?

• Lowering performance standards
• Providing additional paid leave
• Waiving warranted discipline even if disability
  played a role in causing the conduct that is
  worthy of discipline
• Removing or reallocating essential job functions
• Creating a new position or bumping another
  employee to create a vacancy for reassignment

10
Requesting a Reasonable Accommodation

• No magic words (such as ADA or reasonable
  accommodation) are required
• Simply has to inform his/her employer (verbally
  or in writing) that he/she needs an adjustment or
  change in the workplace because of a disability.
• A family member, friend, health professional, or
  other representative may request a reasonable
  accommodation on behalf of the individual.

11
Undue Hardship

• Undue hardship refers to an accommodation that
  would be unduly costly, extensive, or disruptive.
  
• Does the accommodation cost more than
  alternatives that are equally effective in
  removing work limitations?
• Does it require extensive renovations that will
  disrupt the business?
• Will it affect other employees or customers in a
  negative way? If any of the answers are yes, an
  employer is not required to provide the requested
  accommodation.
• Undue hardship is decided on a case-by-case
  basis. Factors influencing whether a modification
  is considered an undue hardship on the employer
  include the size of the business and the
  availability of resources to reduce the net cost
  of the accommodation to the employer. An undue
  hardship for one business may not be an undue
  hardship for another.

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Disclosure Under the ADAPoints to Ponder

• The Stigma Factor
• Only 26 of employers say they have knowingly
  hired a person with a physical or mental
  disability
• Percent of Public Very Comfortable with
  Disability
• Wheelchair User 58
• Blind 46
• Deaf 38
• Intellectual Disability 33
• Mental Illness 19

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Points to Ponder

• The worker with a non-apparent disability must
  make a choice without knowing
• How the employer will respond to disclosure
• How far the information will spread in the
  workplace
• What ways it might impact on his or her personal
  or professional quality of life over time.

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To Disclose or Not to Disclose?

• Decision Tree
• When to disclose,- during the hiring process,-
  after the job is secured, but before beginning
  work,- after a positive performance pattern has,
  been established,- when an accommodation is
  needed,- when a crisis occurs.
• Consequences
• Will telling increase or decrease my chances of
  getting the job?

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To Disclose or Not to Disclose

• Whom to tell,- the immediate supervisor,- a
  higher level manager,- co-workers,- friends in
  other areas of the company,- Personnel
  representatives,- Equal Employment Opportunity
  officers,- Employee Assistance personnel, etc.

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To Disclose or Not to Disclose

• How much and what type of information to
  provide,- stating that one has emotional
  problems vs. mental illness vs. some other
  label,- a psychiatric diagnostic label (e.g.,
  DSM-III-R diagnosis),- the duration of the
  condition,- the prognosis of the condition,-
  medications, other therapies, or supports used,-
  previous, current, or potential impact of the
  condition on one's job performance,- changes to
  the work environment that may be helpful (i.e.,
  accommodations).

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Illegal Questions in the Interview Process

• ADA prohibits employers from asking questions
  that are likely to reveal the existence of a
  disability before making a job offer. (No
  fishing)
• Examples of prohibited questions
• How many days were you sick last year?
• Have you ever filed for workers compensation?
• What prescription drugs are you taking?
• Have you ever been treated for mental health
  problems?

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Legal or Illegal

• Do you need an accommodation to do this job?
• May an employer ask an applicant whether he/she
  will need reasonable accommodation for the hiring
  process?
• May an employer ask applicants about their lawful
  drug use?
• Have you ever been convicted of a crime?
• May an employer ask applicants about their
  current illegal use of drugs?
• How many Mondays or Fridays were you absent last
  year on leave other than approved vacation
  leave?
• May an employer ask applicants about their
  drinking habits?

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Post Offer Phase

• The Rules Change
• Can ask questions that are likely to reveal the
  existence of a disability as long as it asks
  these questions of other applicants offered the
  same type of job.
• Can require a medical examination as long as it
  requires the same medical examination of other
  applicants offered the same type of job.

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The Discovery of a Disability

• Disability revealed due to post-job offer
  questions or medical examination.
• Can the employer withdraw the offer?
• No, unless it can show that you are unable to
  perform the essential functions of the job or you
  pose a risk to yourself or others.

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ADA Real Life Situations

• An employee in a fast food chain with an
  intellectual disability has worked under the same
  manager for two years. When the manager takes a
  job at another store, he leaves a detailed
  description for the new manager of the employee's
  job duties and her reasonable accommodations.
• Has the employer violated the employees right not
  to disclose?

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Real Life Situations

• Several times during the past three months, a
  supervisor has observed a newly hired secretary
  staring blankly, making chewing movements with
  her mouth, and engaging in random activity. On
  these occasions, the secretary has appeared to be
  unaware of people around her and has not
  responded when the supervisor has asked if she
  was okay. The secretary has no memory of these
  incidents.
• Can the supervisor ask the secretary whether a
  medical condition, such as epilepsy, is affecting
  her ability to perform the essential functions of
  her job?

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Real Life Situations

• An employee with mental illness is allowed to
  work from home on occasion and take more frequent
  work breaks due to the side effects of a
  medication she is taking? Co-workers are
  gossiping about this and wondering why they cant
  have the same benefit.
• Can the employer tell them the reason why this is
  being done?

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Real Life Situations

• Paul had depression and anxiety and had been
  hospitalized for mental health issues. When he
  became stressed at work, he asked to be moved to
  a low stress position. Is this a reasonable
  accommodation?

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Real Life Situations

• An worker with a small not-for-profit agency has
  a learning disability and does not request
  accommodation during the application process or
  when he begins working. Performance problems soon
  arise. He tries to solve the problems on his own,
  but they persist and he is counseled on improving
  his performance. The agency follows its policy on
  counseling and disciplining workers but these
  efforts are unsuccessful. During this entire
  period, when he is receiving counseling and
  warnings, he does not ask for reasonable
  accommodation. However, when his supervisor meets
  to fire him, then the worker reveals a disability
  and requests accommodation. Can the agency still
  fire him?

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Real Life Situations

• The employer does not allow workers to have food
  or drink at their workstation. However, a person
  with mental illness requests, due to the side
  effects of medication to be allowed to have water
  at his workstation.
• Is this considered to be a reasonable
  accommodation?

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Real Life Situations

• A corporation subsidizes paid parking for its
  employees. An employee with an intellectual
  disability does not drive because of her
  disability. She requests that the employer
  provide her with the cash equivalent of the
  parking subsidy as a reasonable accommodation so
  that she can use the money to pay for her
  transportation. Does the employer have to grant
  this request?

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Real Life Situations

• A receptionist, with a known degenerative eye
  condition, has not been answering all the calls
  that come in to the office in her usual friendly
  manner.
• Can the employer ask her questions about her eye
  condition?

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Real Life Situations

• A firefighter in a city had been injured in an
  off-duty accident resulting in paralysis from the
  waist down. He requested to be transferred to an
  administrative position within the department,
  which was vacant. The city requires that all
  administrative positions be able to help out in
  the event of a fire. Does the city have to accept
  this as a reasonable accommodation?

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Real Life Situations

• Juan, an associate with a medium-sized law firm,
  has a learning disability (low processing speed).
  Juan has been working successfully at the firm
  for six months, but he is concerned that his
  disability is starting to create some
  difficulties in performing his job. Juan finds
  that his disability can cause him to become
  distracted but that he can fully compensate for
  this problem by dictating his thoughts into a
  tape recorder instead of writing or typing.
  Therefore, he requests that he be permitted to
  have an administrative assistant transcribe his
  recordings. This accommodation enabled him to
  work successfully at his prior firm. Is this a
  reasonable accommodation?

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Real Life Situations

• An individual applies for a retail clerk position
  at a 24-hour convenience store.  The job posting
  indicated that the store was seeking to hire a
  clerk to work from 200 p.m. to 1000 p.m. 
  During the interview, the applicant mentions that
  the hours are ideal for him because he will not
  have to make any adjustments to his scheduled
  radiation treatments for prostate cancer, which
  occur in the early morning and are expected to
  continue for the next five weeks.  He also
  mentions that he has not had any side effects
  during his first three weeks of treatment.
• Can the interviewer ask him any questions about
  the need for reasonable accommodations?

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Real Life Situations

• An individual has chosen to receive job placement
  services from an organization that serves people
  with disabilities. The individual has told the
  organization that he does not want to disclose
  his disability. The organizations brochures,
  business cards and website all state the fact
  that it serves people with disabilities. As the
  organizations job developer calls on employers
  to help located jobs for the consumer, he leaves
  his card and brochures with employers.
  Subsequently the job developer arranges for the
  consumer to have an interview with one of the
  companies where he has left brochures about his
  agency. The job-seeker learns that the job
  developer has left this information with
  employers. Has the organization violated the
  ADA?

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Recent Court Cases

• Sutton versus United Airlines Recent
  Interpretations
• The effects of the persons mitigating measure
  (e.g. eyeglasses, medication) must be considered.
  
• Capobianco v. City of New York
• Kelly v. Metallics West, Inc.
• D'Angelo v. Conagra Foods
• Daoud v. Avamere Staffing, LLC

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Recent Court Cases

• Chevron v. Echazabal
• Direct threat included threat to self as well
  as others.
• Taylor v. Rice
• EEOC v. E.I. du Pont de Nemours Co
• Hammel v. Eua Galle Cheese Factory

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Upon Further Review

• Better Definition of Disability
• Expansion of List of Major Life Activities
• Sleeping
• Controlling Body Wastes
• Exercise and Sports
• Physical Agility
• Sexual Relations
• Mental Activities
• Interpersonal Activities
• Transportation

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Contact Information

• Pat Steele
• Mainstream Living
• 333 SW 9th, Suite C
• Des Moines, Iowa 50309
• 515 309-0324
• psteele_at_mainstreamliving.org