Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) protect persons with qualifying disability from discrimination by current employers or prospective employers due to their disabilities. This can also include perceived disabilities in cases where an employer may incorrectly believe an employee or applicant is disabled and discriminate against that individual based on that incorrect assumption. This can be a history of a resolved disability, a temporary condition treated as a permanent disability, or belief of a mental impairment. While temporary and minor conditions are excluded from being disabilities under the ADA, consider whether an employer treated an employee unfairly based on a perception of the disability being more serious or permanent in nature.
In its simplest and most basic concept, the ADA is a federal law requiring employers to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so causes significant difficulty or expense for the employer as an undue hardship. The key consideration when making reasonable accommodations for a disability: Can this employee still perform the essential functions of the job?
Disability Discrimination at Work is Illegal
The law forbids discrimination based on an individual’s disability from the beginning of the application process to the performance of the job once an individual is hired. Discrimination in how an employee is paid, the hiring process, employee discipline, assignment of job duties or changes in positions, layoffs, training and probationary work, employee benefits, and all other aspects and issues related to an employee’s work.
Disability Discrimination & Harassment is Illegal
It is illegal for an employer to harass, intimidate, or discriminate against a person with a disability. While harassment can include hurtful words, the law stops short of outlawing teasing, isolated incidents of rude or mean comments, or off-color jokes. Instead, harassment crosses the line into illegal harassment only where it is frequent, severe, and creates a hostile work environment for the employee with a disability.
More frequently, the discrimination and harassment becomes illegal under the ADA when it is accompanied by an action. This can include denial of raises, a change in job duties, or a demotion. It need not be a supervisor who commits the harassment, as actions and hostile work environments created by co-workers and even customers are not allowed. It is an employer’s duty to make sure an employee with a disability does not have to work in a hostile work environment, and the employer must take necessary actions to correct the hostile working conditions. An employee with a disability should have his or her complaints taken seriously and handled appropriately—and the solution should not be to demote or transfer the victim of the harassment or person filing the complaint.
Disability Discrimination & Reasonable Accommodation
Employers are required to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. An accommodation is reasonable if it is a modest alteration to the way work is done or assigned duties will help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired. By contrast, if an employee suffers from a disability that cannot be reasonably accommodated, the employer is not forced to make an unreasonable accommodation. The more modest the accommodation needed, the more likely it is to be reasonable.
Undue Hardships and Unreasonable Accommodation
Not every disability can be reasonably accommodated in every field of employment. Undue hardship means the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the business needs. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
What is a Qualifying Disability?
In order to be protected under the ADA, a person must be qualified for the job and meet the criteria for a disability under the ADA. Such disabilities include:
- A physical or mental condition substantially limiting a major life activity (such as walking, talking, seeing, hearing, or learning).
- A history of a disability (such as a cancer in remission).
- A physical or mental impairment expected to last six months or less and not minor in nature.
In 2008, the law on defining disabilities was further clarified:
- An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be “substantially limiting.”
- Disability “shall be construed in favor of broad coverage” and “should not require extensive analysis.”
- An individual’s ability to perform a major life activity is compared to “most people in the general population,” often using a common-sense analysis without scientific or medical evidence.
- An impairment need not substantially limit more than one major life activity.
- Major Life Activities: include “major bodily functions” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular systems, and reproductive functions.
- Major life activities also include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working.
- An impairment that is “episodic” or “in remission” is a disability if it would substantially limit a major life activity when active. Examples of impairments that are episodic or in remission include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.
“Regarded As” Disabled/Perceived Disability
- An employer regards an individual as having a disability if it takes a prohibited action based on an actual or perceived impairment, not minor or expected to last under six months. For example, taking an adverse employment action based on a sprained wrist and broken leg expected to heal normally does not amount to regarding an individual as having a disability, because these impairments are transitory and minor. Taking an adverse action based on carpal tunnel problems or a respiratory infection an employer wrongly perceived to be lung disease, would amount to regarding an individual as having a disability.
Uncorrected Vision Standards
- Employers must show challenged uncorrected vision qualification standards are job-related and consistent with business necessity, regardless of whether the person challenging the standard has a disability.
Medical Questions, Exams and Physicals
There are very few instances where the ADA allows a potential employer to ask medical questions, require an applicant to provide medical records or attend a physical exam, or identify any disabilities. An employer may only ask if an applicant can perform the job and how they would perform the job, with or without a reasonable accommodation.
After an employer has offered the applicant a job, the law allows for the offer to be conditional depending on answers to medical questions or successfully passing a physical, but only if all new employees in the same type of job have to answer the questions or take the exam.
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires employers to keep all medical records and information confidential and in separate medical files.