Americans With Disabilities Act—What It Means To You

March/April 1992 

There's a lot more to this antidiscrimination law than you might imagine. Here are the basics of how it could affect your employment practices.

BY GARY S. MARX

Gary Marx is senior partner with Marx & Krame, a Washington, D.C.-based law firm specializing in labor issues.

If you manage a scrap recycling company with more than 15 employees, a new federal law prohibits you from discriminating against disabled individuals.

While you may believe that your firm would never discriminate against the disabled, regardless of whether it was prohibited by law, the Americans With Disabilities Act (ADA) encompasses far-reaching provisions that you might not realize would be considered protection of disabled persons. For example, assume an applicant for a job at your company discloses that his wife has terminal cancer. Although the applicant is qualified for the position, you fear he will have to miss a lot of work to care for her, and, based on this assumption, you decide not to hire him. Or, suppose a current employee suffers an accident that leaves her permanently confined to a wheelchair. Because all of your office entrances are above a flight of steps, and you decline to install a relatively inexpensive wheelchair ramp, you let the employee go. In either case, you could be considered in violation of the ADA and could face fines of tens of thousands of dollars.

To learn more about the ADA 's major employment provisions (the act also prohibits discrimination related to access to public services, public accommodations, and transportation and communications), read on.

Who's Affected

The ADA applies to all businesses in industries affecting commerce that employed 15 or more people each working day for at least 20 calendar weeks during the current or preceding calendar year. Employers with 25 or more employees must comply with the act by July 26, 1992. Those with more than 15 employees but less than 25 have until July 26, 1994, to comply.

Three distinct categories of individuals are protected from discrimination under the act:

• Individuals with physical or mental impairments that substantially limit one or more major life activities. As defined by the law, physical impairments include cosmetic disfigurements, epilepsy, diabetes, heart disease, and anatomical losses, as well as orthopedic, visual, speech, and hearing impairments; mental impairments cover all mental and psychological disorders, mental retardation, emotional illness, and learning disabilities. Among the major life activities outlined by the act are walking, seeing, hearing, speaking, breathing, learning, working, caring for one's self, participating in community activities, and performing manual tasks. The evaluation of whether an impairment limits a major life activity must be made without regard to mitigating measures such as auxiliary aids and medicine. Thus, a person with a hearing loss would be considered to have a limited major life activity even though the restriction is fully corrected through use of a hearing aid. Similarly, individuals carrying the HIV virus would be covered under this category even if the effects of their illness are controlled by medication.
• Individuals with a record of having had a physical or metal impairment that substantially limited a major life function. This category includes not only people who have recovered from impairments such as mental illness, heart disease, or cancer, but also individuals who have been misclassified as impaired.
• Individuals who are regarded as having a covered disability but would not otherwise have fallen within the first two categories. This includes people who have physical or mental impairments that do not limit a major life activity but who are nevertheless perceived by employers as having such limitations (such as an individual with an asymptomatic back condition), those who have physical or mental impairments that substantially limit a major life activity only because of a perception that the impairment causes such a limitation (for example, a person with a facial disfigurement), and individuals who do not have a physical or mental impairment but are perceived as having an impairment.

The ADA also outlines "conditions" not considered part of the act's definition of "disability," including homosexuality, transvestism, transsexualism, pedophilia, exhibitionism, compulsive gambling, kleptomania, and pyromania. Current drug users are excluded from coverage under the act; rehabilitated drug users, however, are protected.

Making Reasonable Accommodations

The most significant provision of the ADA , section 102(b)(5), requires employers to make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual, unless they employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business.

To be considered qualified, an individual must be able to perform the essential functions of the job with or without reasonable accommodation. For example, if the essential function of a computer operator position is the ability to access, input, and retrieve computerized information, and a blind job applicant has the ability to access, input, and retrieve information from the computer using adaptive equipment, the applicant would be deemed qualified under the act.

The ADA defines a job function as essential if one of the following conditions is true:

• the position exists to perform that function (for example, a security guard must be able to see),
• the function can be distributed among a limited number of employees, or
• the function is so highly specialized that employees are hired for their expertise or ability to perform that function.

Among the documentation that shows whether a function is essential are written job descriptions, data on the amount of time necessary to perform the function, details of the consequences of the position not performing the function, the terms of a collective bargaining agreement, and compilation of past practices relating to the position.

What kinds of reasonable accommodations are employers required to make for qualified individuals? The exact answer depends on the circumstances of a particular situation, but the law mandates that employers must address workplace accessibility and job modification. The accessibility requirement dictates that employers must consider making physical changes in the workplace so that existing facilities used by employees are readily accessible to and usable by individuals with disabilities. Under the modification requirement, they must consider restructuring jobs, modifying work schedules, reassigning nonessential duties to a vacant position, acquiring special equipment or devices or modifying existing equipment, providing qualified readers or interpreters, and adjusting examinations, training materials, or personnel policies as required. Small businesses may be eligible for tax credits for the cost of the accommodation.

An employer is not required to make a reasonable accommodation if doing so would cause an undue hardship, which is determined by comparing the nature and cost of the accommodation, as well as the number of employees who might benefit from the accommodation, to the overall financial resources of the employer. For example, it might be considered reasonable to require a large, multifacility firm to provide an interpreter for two hearing-impaired employees, while it could constitute an undue hardship to impose that requirement on a small operation with one deaf worker.

When examining the financial resources of the employer, the availability of outside funding—such as tax deductions or vocation rehabilitation agency funds—must be considered. Furthermore, the resources of a parent corporation may be attributed to a subsidiary or local facility depending on a number of factors, the most important of which is the administrative relationship between the two entities, such as whether the parent corporation provides to the local facility resources for employee benefits, services, and hiring. Nevertheless, if the cost of making the accommodation at the local facility would make the facility unprofitable and, therefore, might force the parent company to close the local operation, the accommodation would likely be considered an undue hardship.

Removing Medical Obstacles

Inquiring whether an individual has a bad back may seem like a valid question of an applicant for a laborer position, but such questions violate the ADA . Under the act, employers are prohibited from conducting medical examinations or asking job applicants whether they have a disability or how severe the disability is. Nevertheless, an employer may require an applicant to undergo a medical examination after he or she has been offered a position and prior to commencement of the employment. Furthermore, the employment offer can be conditional, based on the results of a medical examination if the following are true:

• the examination is job-related and consistent with business necessity,
• all similarly situated entering employees are subject to such examination regardless of disability,
• information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, and
• the results of the examination are used only in accordance with the terms of the act.

Medical examinations for current employees are subject to similar restrictions. Drug testing is not considered a "medical exam" for purposes of the ADA .

The law also prohibits employers from denying health insurance coverage to an individual based solely on that person's disability. In addition, an employer cannot deny a qualified applicant a job because the employer's current health insurance plan fails to cover the person's disability or because of the increased costs of purchasing insurance to cover the person. Nevertheless, an employer may offer insurance policies that limit coverage for certain procedures or treatments even though this could have an impact on certain disabled individuals, as long as the limitation applies to all employees.

The act does not prohibit pre-existing condition clauses in employers' insurance policies. Thus, employers may continue to offer insurance policies containing such clauses, even though the exclusion adversely affects people with disabilities.

Eliminating Other Forms of Discrimination

The Act Prohibits Limiting Opportunities for the Disabled. The ADA requires that disabled individuals be offered the same job opportunities as all other employees and forbids employers from limiting the responsibilities of disabled job applicants or employees and from segregating the disabled from other employees. Under the act, employers may not restrict a disabled person's duties based on any of a number of presumptions, including the following:

• customers would not want to be served by the disabled individual,
• coworkers would not want to work with the individual,
• the restriction is in the person's best interests,
• the disabled individual is unable to perform a particular task, and
• the person would not be interested in moving into a particular type of job.

The Act Protects Associations With Disabled Individuals. The ADA prohibits discrimination against a qualified individual on the basis the person's relationship—familial or otherwise—with a disabled individual. Employers are not obligated to "reasonably accommodate" individuals associated with a disabled individual, however. Therefore, although it would be illegal for an employer to reject a qualified applicant simply because his or her child is mentally retarded, the employer would not have to give the parent extra time off to care for the child.

The Act Restricts the Use of Qualification Standards and Tests. Under the act, employers may not use standards, employment tests, or other selection criteria that screen out or tend to screen out disabled individuals unless the test is shown to be job-related for the position in question and is consistent with business necessity. For example, requiring a disabled applicant to obtain a driver's license would be considered illegal unless the position requires the actual operation of a vehicle.

Similarly, when employment tests are administered to individuals with impaired sensory, manual, or speaking skills, employers must select and administer the tests in the most effective manner to ensure that the test results accurately reflect the skills and aptitudes of such individuals rather than reflecting the impaired skills. If you require all employees for a particular position to take a written test covering their knowledge of certain techniques, and one of the job applicants is blind, you would have to provide the applicant an oral or braille version of the test.

The Act Prohibits Contracts That Discriminate. The basic premise of this provision of the law is that if the act prohibits you from taking certain actions or requires you to make particular accommodations, those standards must extend to the employment-related firms or organizations you work with. Thus, the ADA makes it illegal for an employer to participate in a contractual or other relationship that, in effect, subjects disabled individuals to the discrimination prohibited by the act. Such relationships include those with employment or referral agencies, labor unions, organizations providing fringe benefits, or organizations providing training and apprenticeship programs.

Exception to the Rule

There is one circumstance under which an employer can discriminate against a disabled individual: if the employer can demonstrate that the individual is or would be a direct threat to others in the workplace, such an epileptic with uncontrolled seizures who has applied for a position as forklift operator. The Equal Employment Opportunity Commission (EEOC) has further concluded than an employer may discriminate against a disabled individual if it can demonstrate that performance of a position would create a direct threat to the individual's own safety or health.

In either case, to constitute a direct threat, there must be "a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodation." The decision must be based on a reasonable medical judgement that relies on the most current medical knowledge and/or on the best available objective evidence.

Putting It in Perspective

Violating the ADA is comparable to violating the Civil Rights Act. In fact, the ADA will be enforced in the same manner as that federal antidiscrimination statute. Charges of discrimination may be filed with the EEOC and court cases may be brought by an aggrieved individual or the EEOC.

An employer found in violation of the ADA may be held liable not only for back pay but also for compensatory and punitive damages, with payment for the latter two capped at $50,000 for firms with 16 to 100 employees, $100,000 for firms with 101 to 200 employees, $200,000 for firms with 202 to 500 employees, and $300,000 for firms with more than 500 employees.

Thus, although the ADA establishes substantial employer obligations, it also provides significant penalties for those who neglect their antidiscrimination duties. Still, there is a general desire by the disabled community and relevant governmental agencies that the act be enforced in a reasonable manner and that its purposes be accomplished with minimal costs and litigation. •