Presenters from US EEOC Charlotte District Rachael SteenberghTideswell Senior Trial Attorney Christina Dodd Lead Systemic Investigator A Brief Introduction to Title I of the Americans with Disabilities Act of ID: 933504
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Overview of Selected Pre-Employment and Employment ADA Topics
Presenters from U.S. EEOC Charlotte District:Rachael Steenbergh-Tideswell, Senior Trial AttorneyChristina Dodd, Lead Systemic Investigator
Slide2A Brief Introduction to Title I of the Americans with Disabilities Act of 1990 (“ADA”)
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Slide3Title I of the ADAProhibits private employers with 15 or more employees, State and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.Amended by the ADA Amendments Act of 2008 (“ADAAA”), which made it easier for
an individual to establish that s/he is “disabled”3
Slide4Who is a “qualified individual with a disability”?A person will meet the “disability” prong if s/he:Has a physical or mental impairment that substantially limits one or more major life activities;Has a record of such an impairment; orIs regarded as having such an impairment
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Slide5Who is a “qualified individual with a disability”?A person will meet the “qualified” prong if s/he:Satisfies the requisite skills, education, experience, and other job-related requirements of the employment position that the individual holds or desires, andCan perform the essential functions of such position with or without reasonable accommodation
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Slide6ADA’s Confidentiality RequirementsThe ADA requires employers to treat any medical information obtained from employees as a confidential medical record. This includes information obtained from:A disability-related inquiry or medical examinationVoluntary health or wellness
programsVoluntarily disclosed by an employeeThe interactive process 6
Slide7Pre-Employment Topics7
Slide8ADA Protections for ApplicantsADA offers protections during the hiring process, including: Prohibiting discrimination based on disability, and Requiring reasonable accommodation during the hiring process8
Slide9What Can Employers Do and Not Do During the Hiring Process? Deny hire to an applicant who is unable to perform all essential functions of the job, even with reasonable accommodation Deny hire to an applicant who is unable to perform
minor duties that are not essential to the job Deny hire to an applicant whose disability poses a significant risk of substantial harm to applicant or others, only after conducting a thorough assessment of the level of risk and the nature of the harm Deny hire to an applicant based on a slightly increased risk of harm, speculation about future risk, or generalizations about applicant’s disability9
Slide10What Can Employers Do and Not Do During the Hiring Process?Ask whether an applicant needs a reasonable accommodation for the hiring process Ask all applicants whether they would need reasonable accommodation to perform the job
Where an employer knows an applicant has a disability, ask whether the disability might pose difficulties for the individual in performing a specific job task. THEN employer may ask whether applicant needs reasonable accommodation to perform that task. If employer believes applicant with an obvious disability will need a reasonable accommodation, employer may ask applicant to describe or demonstrate how s/he would perform the job with or without reasonable accommodation10
Slide11Medical Inquiries and Examinations Under the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer pre-employment (applicant)post-offer pre-employment (job offer)e
mployment (first day or after)
Slide12Medical Inquiries and Examinations Pre-Offer:Prior to an offer of employment, the ADA prohibits all disability-related inquiries and
medical examinations. What is a disability-related question?Any question that is likely to elicit information about a disability.
Slide13Pre-Offer QuestionsAre these questions likely to elicit information about a disability?“
Can you do this job with __ without __ reasonable accommodation? (Check One)”Answer: Yes“Do you currently use illegal drugs?”Answer: No“What medications are you currently taking?”Answer: Yes“Have you ever filed for Workers’ Compensation?”Answer: Yes
Slide14Pre-Offer QuestionsAre these questions likely to elicit information about a disability?“Can you perform the essential functions of this job with or without a reasonable accommodation?”
Answer: No“How did you break your leg?”Answer: No“Have you ever been treated for drug addiction?”Answer: YesHave you ever been arrested for DUI?”Answer: No
Slide15Medical Inquiries and Examinations Post-Offer Pre-Employment:An employer may ask disability-related questions and perform medical examinations only after a contingent job offer
is made, and prior to the start of employment (post-offer pre-employment) if:all entering employees in the same job category are also subjected to the same inquiry and/or examination, regardless of disability; and medical information obtained is kept confidential.
Slide16If an individual is screened out because of disability, the employer must show that the exclusionary criterion is job-related and consistent with business necessity.A disability-related inquiry or medical examination may
be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. Post-Offer Pre-Employment
Slide17Medical Inquiries and Examinations Employment:An employer may not conduct medical inquiries or examinations on employees, unless the inquiries and/or examinations are job-related and consistent with business necessity.
The ADA's restrictions on medical inquiries and examinations apply to all employees, not just those with disabilities. Any employee may challenge disability-related inquiries and/or medical examinations that are not job-related and consistent with business necessity.
Slide18Once an employee begins the first day of work, including orientation, all disability-related medical inquiries and examinations are prohibited unless the employer can show such inquires/examinations are job-related and consistent with business necessity.
Current Employees
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A current employee applying internally or externally for another job at his/her employer must be treated as an applicant. The employer is prohibited from making disability-related inquiries/examinations prior to a conditional job offer. A current employee’s supervisor may not disclose disability-related information to the interviewing and/or hiring manager. Current Employees Applying
Slide20Employment Topics20
Slide21Harassment Based on DisabilityADA protects against harassment based on disability Employee must show S/he is disabled within the meaning of the ADA; S/he was subjected to conduct or comments that either (a) are sufficiently severe or pervasive to alter the conditions of employment (hostile work environment), or (b) results in a tangible employment action There is a basis for holding the employer liable
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Slide22Reasonable AccommodationADA requires an employer to provide reasonable accommodation to an employee with a disability, unless doing so would cause an undue hardship
Reasonable accommodation = any change in the work environment (or in the way things are usually done) to help a person with a disability perform the essential duties of a job or enjoy the benefits and privileges of employment22
Slide23Reasonable AccommodationExamples: Making existing facilities accessibleJob restructuringPart-time or modified work schedulesAcquiring or modifying equipmentChanging tests, training materials, or policiesProviding
qualified readers or interpretersReassignment to a vacant position23
Slide24Reasonable AccommodationAn employer does NOT need to:Eliminate an essential function (i.e., a fundamental duty) of the positionProvide the employee’s preferred accommodation Lower production standards that uniformly apply to all employees
Provide personal use items that the employee would require for accomplishing daily life activities off the job, such as a wheelchair or glassesProvide personal amenities that are not provided to all employees (e.g., refrigerator)24
Slide25The Reasonable Accommodation Process25
Slide26What Can an Employer Do During The Interactive Process?Ask relevant question to ensure the employer understands the request Ask relevant questions and request specific documents regarding the nature, extent, and duration of the disability and employee's functional limitations, if not obviousRequest documents from a treating physician confirming that employee needs time off
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Slide27EEOC’s Systemic Program and Strategic Enforcement Plan27
Slide28Systemic InvestigationsSystemic cases are pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.
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Slide29ADA Systemic IssuesNo-fault attendance policy
No leave granted outside FMLA leave Maximum leave policy100% healed policyApply and compete for reassignment Unlawful medical inquiry/examination Qualification standards29
Slide30Strategic Enforcement Plan Under Emerging and Developing Issues, EEOC is focusing on qualification standards and inflexible leave policies under the Americans with Disabilities Act.30
Slide31EEOC’s Charge Process31
Slide32If You Believe Your ADA Rights Have Been Violated. . . File a charge with EEOC, even if you are unsure a violation has occurredIn South Carolina, you have 300 days after the date of the harm to file – do not wait!If you do not timely file with EEOC, you cannot take your ADA case to court
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Slide33How To File A ChargeUse the EEOC Public Portal to Submit an Inquiry, Schedule an Appointment, and File a ChargeWalk-in to an EEOC office File with South Carolina Human Affairs Commission Send signed letter via mail33
Slide34What to Do If A Charge is Filed Against Your BusinessWhen a charge is filed against an organization, the EEOC will notify the organization within 10 days. The notification will provide a URL for the Respondent to log into the EEOC's Respondent Portal to access the charge and receive messages about the charge investigation. Use the Respondent Portal to: View ChargeUpload Position Statement Update contact information
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Slide35Electronic Notice of ChargeEmail notice replaces EEOC FORM 131 (Notice of Charge)View/download Charge of Discrimination at EEOC Respondent Portal via link and unique temporary password:1. Access EEOC’s secure online system:
https://nxg.eeoc.gov/rsp/login.jsf2. Enter this EEOC Charge No.: 436-2018-XXXXX3. Enter this temporary password: pw7777ab35
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Respondent Portal
Slide37QUESTIONS?37
Slide38Additional Resources EEOC’s website: https://www.eeoc.gov/ EEOC’s Disability Discrimination website EEOC Efforts for Veterans with DisabilitiesInter-Agency Toolkit for Recruiting, Hiring, Retaining, and Promoting People with DisabilitiesThe Americans with Disabilities Act: A Primer for Small
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