AN OVERVIEW OF THE EMPLOYMENT PROTECTIONS OF THE

AMERICANS WITH DISABILITIES ACT

Co-Ad, Inc.
Comprehensive Advocacy, Incorporated
Idaho's Protection and Advocacy System Since 1977
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Acknowledgement: This publication utilizes materials originally developed by the Arizona Center for Disability Law. Used with permission.

TABLE OF CONTENTS

A.  Introduction of the Americans with Disabilities Act (ADA) and this Guide 
What the ADA Covers 
How Co-Ad, Inc. Assists People with Disabilities 
This Guide is NOT a Substitute for Legal Advice 
Why the ADA Includes Employment Protections 

B.  When the ADA Employment Protections Apply 

C.  Employers Covered by the ADA 

D.  Applicants or Employees With a Disability
Definition 
Impairment 
Major Life Activity 
Substantial Limitation 
Effect of Medication & Devices 
Case by Case Decision 
Four Ways a Person Without a Disability May be Protected by the ADA 
Conditions Excluded from Protection by the ADA 

E.  Being Qualified Under the ADA 
Skills, Experience, and Education 
Ability to do the Job With or Without Reasonable Accommodations 

F.  Employment Discrimination on the Basis of Disability 

A.  Introduction to the Americans with Disabilities Act (ADA) and this Guide

What the ADA covers

On July 26, 1990 the ADA was passed by Congress. The ADA provides major civil rights protection to individuals with disabilities. The intent of this federal law is to reduce barriers to persons with disabilities and provide equal opportunity in employment, public accommodations, public services, transportation, and telecommunications. The various titles of the ADA affect many aspects of the lives of people with disabilities.

• Title I makes it unlawful to discriminate against qualified people with disabilities in employment.
• Title II makes it unlawful for state and local governments and their agencies to discriminate in programs and services, including public transportation.
• Title III prohibits discrimination in access to and employment in public commercial facilities, such as hotels, motels, restaurants, professional offices, lawyer's offices, convention centers, stores, banks, museums, parks, parks, schools, and recreation facilities.
• Title IV requires accessibility of telecommunication services to hearing impaired persons and other individuals with disabilities.

How Co-Ad, Inc. Assists People with Disabilities

If you believe you have been discriminated against on the basis of a disability in employment or access to public services, public accommodation, public transportation or telecommunication services, staff at Co-Ad, Inc. can provide you with information about the ADA and enforcing your rights under the ADA. Co-Ad, Inc. is a non-profit, public interest law firm providing free advocacy, information and referral services, legal research, community legal education, and in selected cases, legal representation to individuals with disabilities. Co-Ad, Inc. is the designated protection and advocacy (P&A) system providing services for Idahoans with a wide range of physical and mental disabilities.

Information about the eligibility requirements and priorities are available from Co-Ad, Inc. upon request. Assistance is provided for disability related issues according to program eligibility requirements, priorities and staff availability.

This Guide is not a Substitute for Legal Advice

Co-Ad, Inc. recommends that persons obtain professional legal advice to resolve a legal dispute regarding discrimination on the basis of a disability. This guide is not a substitute for legal assistance. This guide is meant to provide people with disabilities with information and examples about employment protections under the ADA.

Why the ADA Includes Employment Protections

Oftentimes, people with disabilities do not have an equal opportunity to work or advance in their employment. People with disabilities are often restricted in employment opportunities by many different kinds of barriers. Some face physical barriers that either make it difficult or impossible to get into and around a workplace or to use work equipment at the site. Some are excluded because they communicate differently than their co-workers. Still others are excluded because of rigid work schedules which do not permit flexibility for people with special needs because of a disability.

In other cases, people are not denied opportunities because of actual barriers, but because of prejudice. These are the barriers in other people's minds: fears, stereotypes, presumptions, and misconception about job performance, safety, absenteeism, costs, or lack of acceptance by co-workers and customers.

Congress enacted the ADA to eliminate these barriers to equal opportunity in employment. The ADA makes it unlawful for an employer covered by the law to discriminate against applicants and employees with disabilities. The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing this law. People with disabilities also have the right to bring private lawsuits against employers who discriminate against them if they first file a charge of discrimination with the EEOC within the time limits set out by the ADA. See Co-Ad's guide on Enforcement of the ADA for more information about the requirements for filing a charge.

This guide will provide the user with information about when the ADA applies to an employment situation. Other guides available through Co-Ad on employment include:

• The ADA and the Job Applicant
• The ADA and Reasonable Accommodations
• The ADA and Medical Examinations
• The ADA and Drug Testing
• The ADA and Discrimination in Employment

B.  When the Employment Protections of the ADA Apply

The ADA does not cover every employment situation between an applicant and an employer or an employee and an employer. For the ADA to apply to an employment arrangement each of the following has to be true:

• the employer is a covered employer;
• the employee or applicant has a disability according to the ADA;
• the employee or applicant is qualified to perform the job; and
• the employer discriminates against an applicant or employee on the basis of disability.

More information about each of these requirements follows in the next four sections (C, D, E, and F)

C.  Employers Covered By the Employment Protections of the ADA

The ADA applies to private employers with 15 or more employees.

• Includes employment agencies and labor unions.
• Includes a location or facility of a business with less than 15 employees whose total number of employees for the company in all locations and facilities combined equal 15 or more.

Other laws may apply to persons with disabilities who are employed by smaller businesses. For more information, contact Co-Ad, Inc. or a private attorney.

The ADA applies to state and local governments.

Includes all state and local governmental agencies, departments and entities regardless of their size or number of employees.

Examples of state and local employers include: public schools, public universities, police and fire departments, public libraries, museums, public parks and recreation facilities, and social welfare offices.

The ADA does NOT apply to the federal government.

The ADA does apply to employees of the U.S. Senate. However, generally if a person with a disability works or applies for a job with the federal government, a federal agency, or a fully owned U.S. Government corporation, the ADA does not apply. However, the Rehabilitation Act of 1973 is another anti-discrimination law that offers employment protections. For more information about the law, contact Co-Ad, Inc., an EEO officer of the applicable federal agency, or a private attorney.

Title I (Employment) of the ADA does NOT apply to Indian Tribes which are employers.

Tribes may have their own affirmative action or anti-discrimination laws.

D.  Applicant or Employees With a Disability

To be protected by the ADA, a person must have a disability. The term "disability" has a special meaning under the ADA. Just because the applicant or employee has a disability according to some other program or benefit does not necessarily mean they have a disability according to the ADA.

Definition

Disability under the ADA means a physical or mental impairment that substantially limits one or more major life activities.

Impairment

Physical Impairment is "Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

• neurological 
• digestive
• musculoskeletal 
• genito-urinary
• special sense organs 
• hematic and lymphatic
• cardiovascular 
• skin
• reproductive 
• endocrine
• respiratory (including speech organs)

For example, persons with AIDS, epilepsy, diabetes, paralysis, or a substantial hearing or visual impairment have physical impairments because the condition affects one of these major body systems under the ADA.

Mental Impairment is "Any mental or physical disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." Includes an inability to perform functions such as "thinking, concentrating and interacting with other people."

For example, persons with mental retardation, severe depression, or dyslexia have a mental impairment because the condition affects mental or psychological functions.

Major Life Activities

Major life activities are the activities that people do throughout the day. Only one major life activity has to be substantially limited. Major life activities include:

• seeing 
• standing
• hearing 
• learning
• speaking 
• performing manual tasks
• walking 
• caring for oneself
• breathing 
• working
• lifting 
• maintaining normal social relationships

Because it is more difficult to determine whether the activity of work is substantially limited, use this as a last resort. If another major life activity is substantially limited by the physical or mental impairment, the person has a disability. There is no need to also be substantially limited in working.

If no other major life activity except working is affected by the disability, there is a special definition about working. Generally, to be substantially limited in the ability to work means that the individual is significantly restricted in the ability to perform a broad group or class of jobs rather than a single job. The individual with the disability is compared to an average person with similar experience, education, and skills.

Substantial Limitation

A substantial limitation means that an individual is unable to perform, or is significantly limited in the ability to perform, an activity compared to an average person in the general population.

In determining whether a person's impairment substantially limits a major life activity look at the following:

• the nature and severity of the impairment;
• how long the impairment will last or is expected to last; and
• the permanent or long-term impact, or expected impact of the impairment.

Keep in mind that it is the "effect" an impairment has on the person's ability to do major life activities, not the name of a condition, that determines whether a person is protected by the ADA. For some impairments such as blindness, deafness, or mental retardation, it is obvious that the conditions are substantially limiting in one major life activity. However, many other impairments may be disabling for some individuals but not for others, depending on the factors listed above.

Joan has very mild CP (cerebral palsy). The CP only slightly interferes with her ability to speak. The CP does not have any significant impact on other major life activities such as walking and performing manual tasks. She is probably not an "individual with a disability" under the ADA definition. John also had cerebral palsy. However, he is unable to walk and uses a wheelchair because of the severity of CP. He also has great difficulty talking and uses an augmentative speech device to help him communicate. John would qualify as an individual with a disability.

Effect of Corrective Devices

Sometimes, medication, corrective devices, such as hearing aides or adaptive equipment may reduce the limits imposed by a physical or mental impairment. A person with diabetes may have the condition controlled by taking insulin daily. The EEOC's position is that whether the impairment is a disability should be decided without considering the effect of the devices or medication. The U.S. Supreme Court, however, has determined that persons are not disabled when their impairment is controlled by medication or corrective devices. For more information, contact Co-Ad, Inc. or a private attorney.

Case by Case Decision

Whether a person meets the ADA definition of "disability" is made in each situation by looking at the entire facts and circumstances surrounding an impairment and how the impairment limits the person.

For example, a person with a mild hearing impairment may not be covered under the ADA, while another person with a severe hearing loss would meet the eligibility requirements of "disability" and be covered under the ADA.

Four ways a Person Without a Disability May be Protected by the ADA

Sometimes a person does not have a physical or mental impairment that substantially limits a major life activity but is still protected by the ADA. There are four other ways that a person might be protected from discrimination in employment on the basis of disability. A person is also protected if s/he is:

A qualified individual who has a record of a disability or impairment. A person who has a history of a disability may be discriminated against even though the condition no longer causes a substantial limitation.

Philip works for a computer software company providing training to people who buy software. Philip's supervisor overhears Philip tell a co-worker that he was once hospitalized for depression. Philip's supervisor stops giving him important work assignments because he is afraid Philip can't handle the pressure. Philip is protected by the ADA even though he does not currently have a disability.

A qualified individual who is regarded as having such an impairment. A person may not actually have a disability or impairment, although the employer mistakenly thinks s/he does have the disability or impairment.

Joe applies as an electrician with a repair company. The employer mistakenly believes that Joe has AIDS. The applicant does not have AIDS, but the employer does not hire him even though he is the most qualified. The ADA protects Joe even though he does not have a disability.

An individual who has a known relationship or association with an individual with a disability. Sometimes ADA protections are given to persons who are discriminated against in employment because of their relationships with a family member, friend or business associate who is an individual with a disability recognized under the ADA.

Sarah is an applicant for a teaching job. She is denied the job solely because her son has cancer. The principal fears the insurance rates will increase if her son is covered during open enrollment. The school district violated the ADA.

An individual who has

• opposed an act or practice of an employer that violates the ADA
• made a charge of discrimination under the ADA
• testified, assisted or participated in an investigation, proceeding or hearing about discrimination under the ADA.

Carol is a worker who is not disabled. She works with Elena who is deaf. Elena was not sent to a necessary training located out of town because the company did not want to pay for a sign language interpreter. Elena files a charge of discrimination with the EEOC. Elena lists Carol as a witness to the discrimination. The investigator from EEOC interviews Carol as part of the investigation. Their employer fires Carol for cooperating with the investigation. Carol is protected by the ADA.

Conditions Excluded from the Protections of the ADA

Although generally whether an individual is protected by the ADA because of disability depends on looking at the facts of that case, Congress specifically excluded certain conditions or factors from protections under the ADA. Examples of exclusions follow.

• A person who currently illegally uses drugs is NOT protected by the ADA. Persons who use illegal drugs are excluded from protection as a qualified individual with a disability when the employer takes action against the applicant or employee on the basis of drug use. This includes illegal use of controlled substances, such as marijuana and cocaine, as well as prescription drugs. However, people who are taking prescription medication under the supervisor of a licensed physician are included as qualified individuals with a disability. Persons who are former drug abusers but who do not currently illegally use drugs or who are currently in a drug rehabilitation program would be protected as a person with a history of a disability.
• The ADA does not prohibit discrimination in employment on the basis of sexual preference.
• The ADA does not include sexual conditions or disorders as disabilities.
• A person is not protected by the ADA because of certain behavioral disorders; such as compulsive gambling, kleptomania or pyromania.
• A person is not disabled under the ADA because of differences in personality traits and environmental, cultural or economic disadvantages; such as lack of education or a prison record.
• A person with a temporary impairment is not disabled.  A minor or non-chronic condition of short duration is not included in the ADA. Examples of conditions that are not disabilities under the ADA include pregnancy, a broken limb, strained or pulled muscle, sprained ligament, concussion, common colds, infection, short temper, and poor judgment. Keep in mind there are other laws that provide protections to pregnant women and to people injured on the job.
• The ADA only prohibits discrimination on the basis of disability and not other factors, such as race, gender, national origin, religion or sexual preference. Other federal, state, and local laws do provide protections against discrimination on the basis of most of these factors.

E.  Being Qualified Under the ADA

Skills, Experience and Education

A person with a disability must meet the non-medical minimum qualifications for the job. Non-medical qualifications include the education, experience, skills, licenses, or credentials necessary for a job.

Chris has diabetes. He applies for a nursing position that requires that all applicants have a RN degree. He has a LPN and not a RN degree. Therefore, he is not qualified for this position.

Natalie uses a wheelchair because of paraplegia. She applies for a position as a science teacher at a high school. She has a bachelor's degree in education, a current AZ teaching certificate and experience teaching in another school district. She would be a qualified applicant.

Ability to Perform the Job With or Without Reasonable Accommodations

Not only must an individual meet the minimum qualifications, s/he must also be able to perform the essential functions of the job with or without reasonable accommodation(s).

Essential functions are important and necessary job duties of the position.

Look to the following to determine what the essential functions of a job are:

• written job descriptions;
• employer's opinion;
• duties other people in the same position perform;
• duties other people performed who held the same position;
• duties other people perform in similar positions; and
• the terms of a collective bargaining agreement.

Marginal functions are tasks that are NOT essential to the position. Often times, they are the duties that are included in a job description as "other duties as assigned."

Linda applies for a position as an office assistant. She can type, file, and perform receptionist duties. She has the necessary education, experience, and skills required for the job. However, occasionally the office assistant must deliver a report. Linda is unable to drive because of a seizure disorder. Driving, in this case, is probably a marginal job duty and Linda would be qualified because she can perform the essential functions of the job and has the necessary qualifications.

A person does not have to be able to perform the essential functions without accommodations. If a person can perform the essential functions with an accommodation, s/he is still qualified.

A reasonable accommodation is an adjustment to a job, the workplace, or the way things usually are done that allows a qualified individual with a disability to enjoy an equal employment opportunity.

Examples of reasonable accommodations include, but are not limited to:

• making facilities accessible to and useable by people with disabilities;
• restructuring a job by changing marginal job duties with co-workers;
• changing when or how an essential job function is performed;
• offering a part-time or modified work schedule;
• obtaining adaptive equipment or devices;
• modifying office policies;
• allowing use of accrued paid leave or unpaid leave for treatment; and
• reassignment to a vacant position.

There may be other reasonable accommodations. This list is as long as the imagination of the worker, the employer, and outside resources. For more information about reasonable accommodations, request Co-Ad, Inc.'s guide on the ADA and Reasonable Accommodations.

Bettina has a hearing impairment. She works as a cashier at a hardware store. She applies for a promotion as a bookkeeper. She possesses the minimum qualifications and can perform all of the duties in the job description, except answering the phone. The bookkeeper must also answer the phones in the office as part of the duties. Bettina would be able to answer the telephone with an amplification device. The device costs about $70.00. She is qualified because she can perform all of the duties with a reasonable accommodation.

F.  Employment Discrimination on the Basis of Disability

If a person is a qualified individual with a disability and works for a covered employer, the ADA prohibits an employer from discriminating on the basis of disability. The ADA makes job discrimination practices unlawful against qualified individuals with disabilities in the following areas:

• application procedures recruitment hiring
• advertising assignments testing
• evaluation disciplinary actions tenure
• promotion medical examinations leave
• examinations benefits training
• layoff/recall termination compensation
• other terms, conditions and privileges of employment.

The ADA requires employers to act upon the needs of an individual rather than acting upon generalizations made about the capabilities of persons with disabilities. Some types of actions which are unlawful under the ADA include:

(1) Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects employment opportunities for the applicant or employee because of his or her disability.

John is a sales clerk with depression. He is consistently passed over for an assistant manager position by the owner because of the perception that his depression might limit his ability to perform the job, despite that John is interested in the position, is fully qualified for the job, and has performed well in his present job. This action is unlawful since the sales clerk is interested in and qualified for the job. Speculating that his disability might affect his job performance is discriminatory.

(2) Participating in a contractual or other arrangement or relationship that subjects an employer's qualified applicant or employee with a disability to discrimination.

A telemarketing firm hires its executives from a personnel agency. The firm has a verbal agreement with the agency to not refer people with disabilities. Jim, a qualified person who is visually impaired, applies for one of the supervisor positions. Jim is not referred because the company knows the computer adaptive equipment Jim would need would increase operating expenses. This action is unlawful since Jim is not hired because of the agreement between the two businesses.

(3) Denying an employment opportunity to a qualified individual because s/he has a relationship or association with a person with a disability.

Dean is a construction worker who applies for an open foreman position with a construction company. Dean is qualified for the position but is not hired by the owners for fear of negative reaction from other workers if it was discovered that his partner was recently diagnosed with AIDS. It is unlawful to refuse to hire Dean solely because of his relationship with a person with a disability. Instead, the construction company could provide awareness and sensitivity training for its employees regarding a variety of disabilities and its employment requirements under the ADA.

(4) Refusing to make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the accommodation would pose an undue hardship on the business.

Teresa is a waitress who is diagnosed with cancer. She undergoes radiation and chemotherapy treatments. She asks her employer for three weeks of unpaid leave beyond the sick leave she has used. Even though other workers have offered to work the extra hours temporarily, the restaurant owner decides not to modify its leave policy to allow the waitress to have time-off without pay and keep her job while receiving treatment. After the waitress uses up all of her paid leave for her treatments, she is terminated for excessive absenteeism. Not modifying the leave policy probably violates the ADA and may also violate the Family Medical Leave Act.

(5) Using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability unless they are job-related and necessary for the business.

Alex uses a wheelchair because he has muscular dystrophy. He applies for a position as an aide in a classroom for children with learning disabilities to provide tutoring in basic skills. The school district requires all aides and tutors to be able to lift 75 pounds. This lifting requirement tends to screen out people with certain disabilities. Although it may be a legitimate job function in classes where children are not ambulatory and may need physical assistance, it is not required of aides in classes where the children do not need to be lifted. The criteria uniformly applied to all aide positions probably violates the ADA.

(6) Failing to use employment tests in the most effective manner to measure actual abilities. Tests must accurately reflect the skills, aptitude, or other factors being measured, and not the impaired sensory, manual, or speaking skills of an employee or applicant with a disability (unless those are skills the test is designed to measure).

Michelle has a mental illness that affects her concentration. She is required to take a pre-employment test with many other people. Because applicants come and go during the test period, she is unable to concentrate. She requests being able to take the test in a quiet room because of her disability, but the company refuses. Michelle does poorly on this test not because of her work skills but because of how the disruptions affected her test-taking ability. Allowing her to take the test in a quiet room with a proctor would have been a better test of her abilities.

(7) Discriminating against an individual because s/he opposed an employment practice of the employer or filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing to enforce provisions of the ADA.

Joseph is a supervisor of the custodians at his company. He applies for an available electrician position with his company. Although he is a licensed electrician and fully qualified, he is not hired because he filed a grievance complaint with the personnel department on behalf of a co-worker with a disability who did not receive an accommodation after requesting one. The action of not promoting Joseph solely based on his past opposition to the company's failure to accommodate a fellow worker is unlawful.

Printing of this document was funded by grants administered by the Department of Education, Rehabilitation Services Administration, Administration on Developmental Disabilities, and National Institute of Mental Health.

The legal information contained in this guide does not necessarily reflect the views of Comprehensive Advocacy, Inc.'s funding sources. The information is also subject to changes in the laws and the reader should research current laws before acting upon the information. Reprinted 7/99