Facts About The Americans With Disabilities Act
Title I of the Americans with Disabilities Act of 1990 (ADA), which became effective July 26, 1992, prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment. Title V, among other things, provides further clarification of the disabilities covered by the ADA and provisions barring retaliation and coercion. Visit the Americans with Disabilities Act website here.
An individual with a disability is a person who:
- has a physical or mental impairment that substantially limits one or more major life activities (which is essentially an everyday activity an average person can perform with little or no difficulty, like walking, speaking, hearing, seeing, breathing, etc.);
- has a record of such an impairment; or
- is regarded as having such an impairment.
With regard to determining whether a person has a physical or mental impairment that is substantially limiting, the extent, duration and import of the impairment will be examined. For example, a short-term condition such as a broken ankle is generally not considered a disability as defined by the ADA. Furthermore, the use of mitigating measures must be taken into consideration in determining whether an impairment is substantially limiting. Some examples of mitigating measures include eyeglasses, medication, hearing aids, walkers, or canes. If a person has little or no difficulty participating in a major life activity with the use of a mitigating measure, then that person does not have an ADA-qualifying disability.
Under the ADA, the term disability does not include:
- transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender disability disorders not resulting from physical impairments, homosexualism, bisexualism or other sexual behavior disorders;
- compulsive gambling, kleptomania or pyromania; or
- psychoactive substance abuse disorders occurring due to the current use of illegal drugs.
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. Reasonable accommodation may include, but is not limited to:
- 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.
An employer is required to make an accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as the nature and expense of the accommodation needed, an employer’s size, financial resources and the type and structure of an employer’s operation. An employer is not required to provide the “best” accommodation or even one that an employee prefers as long as the accommodation provided is one that works and results in the employee having an equal opportunity to perform the essential functions of the job in question.
Pre-employment Inquiries and Medical Examinations
Employers may not ask job applicants about the existence, nature or severity of a disability. However, applicants may be asked about their ability to perform specific job functions, including requesting an applicant to demonstrate or describe how he or she would perform each function. A discussion whether to hire an applicant can only be based on the applicant’s ability to perform the essential functions of a particular job and not marginal functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.
Drug and Alcohol Abuse
Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA, when an employer acts on the basis of such use. However, the ADA does cover those qualifying applicants and employees who have either successfully completed a drug rehabilitation program or who are currently participating in such a program, provided that there is no current use of illegal drugs. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations.
The ADA does not cover an employee or applicant who is an alcoholic where the current use of alcohol would interfere with employment responsibilities or where employment would threaten the property or the safety of others due to current alcohol abuse. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.
Acts of Discrimination
Discrimination includes but is not limited to:
- limiting, segregating or classifying an applicant or employee in a manner that adversely affects that applicant or employee because of a disability.
- participating in any arrangement or agreement that adversely affects an applicant or employee based on a disability, such as relationships with labor unions, benefit programs or training programs.
- creating administrative standards that adversely affect applicants or employees based on a disability; that foster discrimination in the workplace; or that adversely affect applicants or employees based on a relationship with another qualifying individual.
- refusing to make reasonable accommodating measures where no undue hardship is present or denying job applicants or employees employment opportunities based on the necessity of making reasonable accommodations.
- using qualification criteria that screen out or tend to screen out individuals with disabilities.
EEOC Enforcement of the ADA
The U.S. Equal Employment Opportunity Commission issued regulations to enforce the provisions of Title I of the ADA on July 26, 1991. The provisions originally became effective on July 26, 1992 and covered employers with 25 or more employees. On July 26, 1994 the threshold dropped to include employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Part time employees are included in this calculation. Employment agencies, recruiters and other agents of an employer are covered by the ADA.
Filing A Charge
Charges of employment discrimination on the basis of disability, based on actions occurring on or after July 26, 1992, may be filed at any field office of the U.S. Equal Employment Opportunity Commission. Field offices are located in 50 cities throughout the United States and are listed in most telephone directories under U.S. Government. Information on all EEOC-enforced laws may be obtained by calling toll free on 800-669-4000. EEOC’s toll free TTY number is 800-669-6820. For TTY calls from the Washington, D.C. Metropolitan Area, dial (202) 663-4494.
Retaliation or Coercion
No person may discriminate against a qualifying applicant or employee for filing or participating in the investigation of a claim under the ADA. Any form of interference, coercion or intimidation in the exercise of the rights provided for under the ADA are prohibited.
About the Authors
This article was written by Frank P. Spada, a partner in the Princeton office of the law firm of Pepper Hamilton LLP, and Delia C. Donahue, an associate in Pepper’s Princeton office. Mr. Spada represents management in all areas of employment law and labor relations, including employment litigation and counseling on a wide variety of human resources issues, including discipline, hiring, firing and better productivity through employee relations. He can be reached at 609.951.4150 or firstname.lastname@example.org. Ms. Donahue primarily focuses her practice on commercial lending, mortgage banking, consumer finance and other issues for financial services companies. She is a member of the Community Options Business Advisory Council (COBAC) of Mercer County. She can be reached at 609.951.4149 or email@example.com.
Special Thanks to Pepper Hamilton, LLP, Suite 400, 301 Carnegie Center, Princeton, NJ 08543-5276 Tel: 609-452-0808 Fax: 609-452-1147