An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Major life activities are activities that an average person can perform with little or no difficulty, such as walking, breathing, seeing, hearing, speaking, learning, and working.
Additionally, to be qualified, an employee or applicant must be able to prove that they can perform the essential functions of the job with or without reasonable accommodations. Excluded from coverage by the ADA are those individuals who pose a direct threat to themselves or to others.
Now, if you haven't already picked out a number of "problem words or statements" in the above, you aren't watching enough episodes of Law & Order or Court TV. Right from the start, we have the word "qualified."
Recently the Supreme Court in the U.S. ruled that a person with poor eyesight that is mitigated by using glasses is not "qualified" under the ADA. How "mitigation" legally impacts other disabilities will be seen in the years to come.
Next we come to "substantially limits." This is viewed as when the condition, manner, and duration of performance are different than for a non disabled person.
A "major life activity" could include learning, working, breathing, seeing, hearing, walking, or speaking.
"Essential functions" should be defined beforehand and should be a part of the written job description. This means that if there are two people in shipping and receiving who can refill the bottled water dispenser, it can't be considered "essential" that the receptionist, bookkeeper, or computer operator be able to do it.
A reasonable accommodation (referred to as a "reasonable modification" under Title II) may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; 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. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids. These accommodations need not cause an undue hardship on the employer.
And, going into the bonus round of legal jargon, "undue hardship" means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size and financial resources, and the nature and structure of its operation. (So whereas a corner florist with fourteen delivery people on the payroll might not be obligated under the law to provide an employee with a delivery van equipped with a wheelchair lift at a cost of $40,000, General Motors would be obligated to provide that equipment if it were providing company vehicles for its other employees in the same job category because of the size of the company.)
Finally, there are four factors impacting whether or not someone is considered to be a "direct threat." These include:
- The duration of the potential for harm
- The potential for lethality or the severity of the harm
- The likelihood that the harm will occur
- The imminence of the harm
Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job 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 the same job category. Medical examinations of employees must be job related and consistent with business necessity.
Discrimination under the ADA also includes:
- Hiring and firing
- Compensation, assignment, or classification of employees
- Transfer, promotion, layoff, or recall
- Job advertisements
- Use of company facilities
- Training and apprenticeship programs
- Fringe benefits
- Pay, retirement plans, and disability leave
- Other terms and conditions of employment
- Harassment on the basis of race, color, religion, sex, national origin, disability, or age.
- Retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices.
- Employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities.
- Denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.
What to Do If You Think You Have Been Discriminated Against
If you feel that you have been discriminated against, document everything that you can. Write down what encounters you have had, and with whom. Reconstruct, to the best of your abilities, any event that you can recall, leading up to an interview. Document the questions that were asked in the interview, as well as your responses to those questions. Chronicle the demeanor of the interviewer, along with the words that were used. Include information about what you were led to expect that the following steps would be.
You then need to gather any other information that you can about the rest of the hiring process. Was someone hired? What were the qualifications of that person? Were they asked the same kind of questions that you were (were the hiring practices applied uniformly)?
You can also bolster your case if you can collect any information about the company's past practices as they relate to interviewing or hiring people with disabilities. This information can help determine whether your experience was an isolated one or part of a pattern of discrimination.