ADA Employment Rights for People with Disabilities - PowerPoint Presentation

1. ADA Employment Rights for People with Disabilities Kenneth ShiotaniNational Disability Rights NetworkCynthia ElliottKentucky Client Assistance ProgramAmy SchererNational Disability Rights Network

2. TopicsOverview of ADA and coverageDefinition of DisabilityGeneral Prohibitions Against DiscriminationDisability Related InquiriesReasonable AccommodationsResources 2

3. Americans with Disabilities Act (ADA) signed into law in 1990 Promises equal opportunity for qualified individuals with disabilities Title I – EmploymentTitle II – State and Local GovernmentsTitle III – Private Entities Operating Public AccommodationsTitle IV – TelecommunicationsTitle V – Miscellaneous Provisions 3

4. Who is Protected Under the ADA?An individual whoHas a disabilityHas a record or history of disability orIs regarded as having a disability 4

5. What are “Covered Entities” under Title I of the ADA?Employers who are engaged in commerce with 15 or more employees for 20 or more weeks a yearEmployment AgenciesLabor UnionsJoint Labor Management Committees5

6. Entities not covered under Title IFederal government (covered under Section 501 of the Rehabilitation Act)Native American tribesEmployers with fewer than 15 employeesNote that some state anti-discrimination laws may cover employers with fewer than 15 employees6

7. Original ADA, as interpreted by the courtsBy 2006, over 90% of plaintiffs lost ADA employment discrimination casesADA failed in its objective of providing a “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” in the area of employment7

8. Passage of the ADA Amendments Act (ADAAA)8Signed into law September 26, 2008Effective January 1, 2009Congressional FindingsPeople with disabilities encounter discrimination including outright exclusion, the discriminatory effects of architectural, transportation and communication barriers, overprotective rules or attitudes, segregation and relegation to lesser services and opportunities. Supreme Court decisions and EEOC regulations narrowed the broad scope of protection intended by Congress

9. Purpose of the ADAAACarry out ADA’s objectives of providing a mandate to end discriminationReject Supreme Court decisions requiring strict definition of disabilityTell courts that the primary purpose in ADA cases is whether the covered entities have complied with the ADATell courts that the question of disability should not require extensive analysis 9

10. Definition of Disability: First Part or Prong An individual who:Has a physical or mental impairment that substantially limits a major life activity10

11. Examples of Major Life Activities caring for oneselfperforming manual tasksseeinghearingeatingsleepingwalkingstandingliftingbendingspeakingbreathinglearningreadingconcentratingthinkingcommunicatingworking11

12. Major Life ActivitiesAlso includes Major Bodily FunctionsFunctions of the immune systemNormal cell growthDigestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions12

13. Substantial Limitation of a Major Life ActivityIs the major life activity substantially limiting?Compare to “most people”Should not require extensive analysisBroad coverage intended by CongressNeed not severely restrict or significantly restrict a major life activity but must be more than a temporary, non-chronic impairment with little or no residual effects13

14. Mitigating Measures Not ConsideredMust not evaluate condition with mitigating measures, e.g., medications, hearing aids, prosthesis, mobility devicesExcludes ordinary glasses and contact lenses14

15. Case Example 1Sam has muscular dystrophy.It takes him about two hours to walk a mile.He is able to walk with no pain.Does Sam have a disability under the ADAAA?15

16. Case Example 2Lisa has a bad back.Does Lisa have a disability under the ADAAA?16

17. Case Example 3Scott has epilepsy.He has seizures once a week, which are brief but cause him to be unaware of his surroundings. His condition also interferes with sleep and memory.Does Scott have a disability under the ADAAA?17

18. Case Example 4Earle has been diagnosed with bipolar disorder.He is fine for a few months but a few times a year he becomes severely depressed and has difficulty sleeping and taking care of himself. The depression usually lasts about a week.Does Earle have a disability under the ADAAA?18

19. Definition of Disability: Second Part or ProngAn individual who:Has a record of a physical or mental impairment that substantially limits a major life activity19

20. Case ExampleDan has alcoholism. He has not had a drink in 7 years and is fully functioning. When he was actively drinking, he was unable to care for himself.Does Dan have a disability under the ADAAA?20

21. Definition of Disability: Third Part or ProngAn individual who: is “regarded as” having a physical or mental impairment 21

22. “Regarded As” DisabledIndividual is covered under third part of definition if employer takes an adverse employment action based on a real or perceived physical or mental impairmentIt is not necessary to show that the employer perceived the impairment to be “substantially limiting”“Regarded as” disabled does not apply to impairments that are transitory and minor Transitory impairment is an impairment with an actual or expected duration of six months or less22

23. Case Example 5Amanda has high blood pressure which does not limit her work activities. Her manager finds out Amanda has high blood pressure and reassigns her to a less stressful and lower paying job because of concerns that she would suffer a heart attack if she continues in her job. Is Amanda protected under the ADAAA? 23

24. Not a DisabilityTemporary, non-chronic impairments of short duration with little or no residual effects usually will not be considered disabilities.Examples include a broken leg expected to heal normally, seasonal influenza, a common cold. 24

25. Not a Disability (specific exclusions named in statute)TransvestismExhibitionismCompulsive GamblingPedophiliaKleptomaniaCurrent use of illegal drugsNote: this is in contrast to the criteria related to VR eligibility surrounding current use of illegal drugs.25

26. General ADA Protections An employer shall not discriminate against a qualified individual on the basis of disability  26

27. Discrimination is prohibited inJob application proceduresHiringCompensation/pay and benefitsAdvancement/promotionTrainingDischargeOther terms, conditions, privileges of employment27

28. Who is a Qualified Individual?A “qualified individual with a disability” means: an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual seeks or holds. 28

29. A Qualified IndividualMust meet objective job requirements, e.g.,education (e.g., a bachelor’s degree) training (e.g., years of experience) licensure or certification for specific jobs requiring such license or certification (Commercial Drivers License, Cosmetology License, Food Safety Certification, teaching certification, etc.)29

30. What are Essential Job Functions?Essential functions are the “fundamental job duties of the position”Factors to determine if duties are essential may include: employer’s judgment; written description, time spent performing the function; consequences of not performing the function; terms of collective bargaining agreement; the work of others in same or similar jobs30

31. What makes a Job Function “Essential?”Factors to consider:Was the person hired to perform the task?Number of employees available who could do the task?Amount of time it takes to do the task?How often is the task is performed?Consequences of person not doing the task?31

32. Other Examples of DiscriminationFailure to hireTermination because of disabilityDenial of reasonable accommodation32

33. Failure to Hire “Your disability may be a problem for you and us during our crazy opening process…. Call back in December after the dust has settled.”33

34. Termination Because of DisabilitySteve, a veteran of the war in Afghanistan, is hired as an accountant in January. On February 1, he informs his supervisor that he has post traumatic stress disorder as a result of his service. On February 2, his employer terminates his position, saying that there is no longer enough work for him. 34

35. Disability-Related Inquiries and Medical Exams

36. Different Rules for Three Stages of Employment Pre-Offer – Recruitment and HiringPost-Offer – After job offer is madeDuring Employment36

37. First Stage: Pre-Offer/Recruitment and Hiring37Disability related questions are prohibited:On application formsIn job interviewsIn background reference checksEmployer may not ask about:Nature or severity of disabilityCondition causing disabilityPrognosisTreatment

38. Interview Questions/InquiriesCan interviewer ask whether applicant can perform job functions with or without reasonable accommodations?Answer: Yes Can interviewer ask a particular applicant to describe or demonstrate how she would perform a function?It dependsPermissible if employer could reasonably believe that applicant will not be able to perform a job function because of an obvious disability38

39. What is a "disability-related inquiry?”A "disability-related inquiry" is a question (or series of questions) that is likely to elicit information about a disability. Do you have a disability?How did you become disabled? What is the nature of your disability/how severe is it? What is your workers' compensation history?39

40. Second Stage:Post-Offer, Pre-EmploymentEmployer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category. 40

41. Third Stage: During EmploymentAt the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. 41

42. What is a “Medical Examination?” A "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments or health. Examples:blood pressure screening and cholesterol testing; vision tests conducted and analyzed by an ophthalmologist or optometrist;diagnostic procedures such as X-rays, Computerized Axial Tomography (CAT) scans, and Magnetic Resonance Imaging (MRI) 42

43. What is NOT a “Medical Examination?” tests to determine the current use of illegal drugs;physical agility tests, which measure an employee's ability to perform actual or simulated job tasksphysical fitness tests, which measure an employee's performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure); polygraph examinations 43

44. When is a Disability Inquiry or Medical Exam Permitted?Even if an employer’s request constitutes a disability-related inquiry or a medical examination, it may be permissible if it is “job related and consistent with business necessity.” If 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." 44

45. Discrimination Also Includes “limiting, segregating, or classifying [an] … employee in a way that adversely affects the opportunities or status of such … employee because of the disability of such … employee.” Individuals with disabilities are steered to certain jobs or are not allowed to apply for certain jobs because of their disability. 45

46. Discrimination also Includes: Denying a Reasonable Accommodation Discrimination includes “not making reasonable accommodations to the known physical or mental limitations of” an employee with a disability 46

47. Reasonable Accommodations

48. What is a Reasonable Accommodation?Any modification or adjustment to a job, the work environment, or the way things are done that enables a qualified individual with a disability to enjoy equal employment opportunityRemoves barriers for people with disabilities in the workplace48

49. Examples of Reasonable AccommodationsMake facilities accessibleModify policies or practicesReassign marginal job functionsPart-time or modified work schedulesLeave – paid or unpaidReassignment to vacant or lower position (if does not violate Collective Bargaining Agreement and/or of no Reasonable Accommodation exists)49

50. Reasonable Accommodations Need not be the “best,” the “ideal,” or the individual’s first choiceBut must be effective50

51. Example: Modification to Hiring ProcessSara, who is deaf, applies for a job as a telemarketer. She requests to have a sign language interpreter for the interview.Is providing a sign language interpreter the employer’s responsibility?51

52. Example: Modification to Employment PolicyJoan has difficulty with standing for prolonged periods due to her multiple sclerosis. The hotel has a policy that front desk clerks stand while on duty. She requests the use of a stool because sitting reduces the fatigue.Is allowing a stool for Joan to sit on a reasonable accommodation? 52

53. Example: Modification to Policy Rhonda is employed as a mover in a package delivery company in which lifting up to 75 pounds is a required and frequent function of the job. Rhonda sustains injury to her back and requests accommodation to restrict lifting up to 10 pounds. Is this request reasonable?53

54. Denial of a Reasonable Accommodation George, who is blind, works on the phone as a customer service representative. Every morning, his employer posts messages on the office wall with important information for the day. George asks that these messages be read to him when he arrives at work so that he can get the information. His employer refuses to read the messages to him.54

55. Leave as a Reasonable AccommodationCynthia needs two months leave for treatment and recuperation after surgery for breast cancer. Company grants the request. A week before the end of the two months, Cynthia contacts the employer and requests another month off. What is the company’s obligation?55

56. Requesting a Reasonable Accommodation56Employee can use “plain English”No “magic words”, does not have to mention ADA or “reasonable accommodation”Does have to identify disability* if not obviousDoes not have to be in writing**Another person can ask on behalf of individual*Not necessarily the diagnosis but connection between the disability and the accommodation need**Good idea to make requests in writing

57. Example of an Accommodation RequestJim tells his supervisor that he would like a new chair because his present one is “uncomfortable.” Has Jim provided enough information that he is requesting a reasonable accommodation?57

58. When May an Employee Request a Reasonable Accommodation?Any timeDuring application processFor employment testingDuring probationary periodDuring employment58

59. Interactive ProcessSupervisors and Human Resources (HR) staff need to recognize Reasonable Accommodation (RA) requestsEmployers must respond expeditiouslyParties must engage in informal, interactive processPurpose of RA is to support the person with the disability to do the job59

60. Is Documentation Required for a Reasonable Accommodation?Employer may request medical documentation if:The disability is not obvious and/orThe need for accommodation is not obvious60

61. Choice of AccommodationsExample:An attorney with a severe visual disability requests a reader. The law firm provides magnifying glass instead. The magnifying glass is not effective, as attorney can read but with great difficulty. Firm can choose an accommodation, but may not choose an ineffective accommodation. Absent undue hardship, the firm must provide a reader.61

62. Reasonable Accommodation DefensesEmployer need not provide accommodation if:It results in an “undue hardship”It poses a “direct threat” to the health or safety of the employee or othersIt results in a “fundamental alteration” of the position62

63. Undue Hardship“Undue hardship” is an action that is Unduly costlyExtensiveSubstantial DisruptiveFundamentally alters the nature or operation of the business (42 U.S.C. §12111(10(B))Analysis must focus on resources of the particular employer63

64. Direct ThreatA significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. (42 U.S.C. 12111(3))Employer must consider whether a direct threat can be reduced or eliminated through reasonable accommodation64

65. Authorized CAP Activities65Based upon the federal regulations, CAPs have a legitimate role in providing information about Title I of the ADA to their clients. Under 34 CFR § 370.1(c), information about the ADA can be provided to any individuals with disabilities in the state without the need for a direct connection to VR services or other services under the Act.In contrast, ADA-related legal counsel/advice under CAP would need to be restricted to issues or concerns with a direct connection to VR or Independent Living Center (ILC) questions rather than general Title I ADA discrimination claims.

66. Authorized CAP Activities (continued)What would be an example of a “direct connection” to VR or an Independent Living Center? A direct connection would exist if the individual experienced discrimination from an employer or a VR vendor if VR placed that client with that employer or with that vendor and the vendor is violating Title I of the ADA. But, in that case, the person would still need to be a VR client or applicant at the time of the discrimination. 66

67. Specific CAP ExampleA VR client, who happened to be an amputee, was participating in a Trial Work Experience (TWE). By all accounts, the job was progressing well. The feedback received from his supervisor was positive throughout the duration of the trial.However, at the conclusion of the trial work experience, the employer said that they would be unable to hire him due to previously unexpressed “safety concerns”. The client contacted CAP for assistance.67

68. What Are Not Reasonable Accommodations?68Assignment of new supervisorLowering of quality standardsPersonal services for personal, not job, needs of employeeContrary to legitimate quality requirementsTolerance of violent or abusive behaviorFundamental alteration of the job

69. Job PerformanceEmployer is not required to eliminate essential job functionsEmployer generally not required to lower quality or production standards because of an employee’s disabilityHowever, employer may be required to provide reasonable accommodation to enable employee to meet standards 69

70. Additional ADA Protections: ConfidentialityEmployers must treat medical information obtained from a disability-related inquiry or medical examination, as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Exception: May share information in limited circumstances with supervisors, managers, safety personnel when relevant to safety issues (such as evacuation plans), and with investigators for compliance with the ADA.70

71. Enforcement of Disability Discrimination in EmploymentAny person who believes he or she has been subjected to unlawful discrimination may file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC)Charge must be filed within 300 or 180 days of the date of discrimination, depending on the stateIf employer will not mediate and EEOC does not chose to enforce, individual may bring suit71

72. ResourcesJob Accommodation Network, 800 526 7234 (voice & TTY); https://askjan.orgU.S. Equal Employment Opportunity Commission; 800 669 4000 (v), 800 800 3302 (tty); 800 666 EEOC (for publications) https://eeoc.govEEOC Enforcement Guidance: Reasonable Accommodations and Undue Hardship: https://www.eeoc.gov/policy/docs/accommodation.html72

73. Thank you!73 Kenneth Shiotani National Disability Rights Network Kenneth.Shiotani@ndrn.org Cynthia Elliott Kentucky Client Assistance Program cynthia.elliott@ky.gov Amy Scherer National Disability Rights Network Amy.Scherer@ndrn.org