14. What is the “Americans with Disabilities Act”?
The Americans with Disabilities Act (ADA) is the primary law protecting individuals with disabilities from various forms of discrimination. The ADA specifically prohibits employers from discriminating against job applicants or employees based upon:
• having a disability,
• having a disability in the past, or
• being regarded as having a disability.
The ADA applies to employers with 15 or more employees. Intentional forms of discrimination include hiring, advancement, termination, compensation, training, or other terms, conditions, or privileges of employment. The ADA also prohibits employers from requiring a pre-employment medical examination or asking questions about he job applicant’s medical history. The employer can only ask job related medical questions after a job has been extended.
The ADA defines a disability as “any physical or mental impairment that substantially limits one or more of an individual’s major life activities.” Individuals with an impairment that is “transitory and minor,” do not fall under the ADA protections. The employment discrimination provisions apply to individuals with a “qualified disability”. A qualified disabled is one who, with or without reasonable accommodation, can perform the essential functions of a particular job position. Covered employers must make “reasonable accommodations” to allow the qualified disabled to perform the functions of the job.
Reasonable accommodation under the ADA means adjusting a job or work environment to fit the needs of a disabled employee in carrying on her duties. Common examples of a reasonable accommodation include:
• making the workplace disabled accessible;
• restructuring or adjusting the work schedule;
• purchasing or modifying necessary equipment for use by the disabled; or
• providing appropriate training materials or assistance modified to fit the needs of the disabled employees.
Employers are not required to make an accommodation that causes the employer an undue hardship. An undue hardship is an action requiring significant difficulty or expense to the employer. The cost of the accommodation, the resources of employer, the size of the employer, and the nature of the employer’s business are considered in determining what constitutes and undue hardship.
• Note: The ADA also requires businesses to make reasonable accommodations for customer who use the facilities. This generally includes wheelchair accessible entrances and doorways.
The remedies for violation of the ADA are similar to those under the Civil Rights Act (Title VII). Compensatory and punitive damages are not available for disparate impact but are available for intentional discrimination.
• Discussion: How do you feel about the protections afforded individuals under the ADA? Why do you think Congress specifically excluded coverage of temporary disabilities? How do you feel about the definition of a qualified disabled? Do you agree that employers should always have to make reasonable accommodations for an individual deemed to be a qualified disabled? When defending allegations of failure to make a reasonable accommodation, are you comfortable with a floating standard of “undue hardship”.
• Practice Question: Meredith has Parkinson’s disease. The disease significantly hinders her physical movements. She is applying for a marketing manager position at ABC Corp. She is highly qualified, but ABC chooses not to hire her for fear that her disease will hinder her ability to adequately perform the job duties. If Meredith seeks to sue ABC Corp, what facts about Meredith’s ailment, the position, and ABC Corp will the court examine to determine if there has been discrimination prohibited by the ADA?