TITLE I OF THE AMERICANS WITH DISABILITIES ACT

42 U.S.C 12101 et seq. (1990)

Overview of the ADA

The Americans with Disabilities Act (the ADA or the Act) became law on July 26, 1990. The Act prohibits discrimination in:

                1) employment,
                2) public services and transportation,
                3) public accommodations, and
                4) telecommunications services

against qualified individuals with disabilities.

The ADA is divided into five Titles, one for with each of these areas, plus one covering miscellaneous items. Title I of the Act dealing with employment became effective on July 26, 1992, for employers with 25 or more workers. The Act became effective on July 26, 1994, for employers with 15 to 24 workers. The Equal Opportunity Employment Commission (the EEOC) is responsible for promulgating regulations to implement Title I of the Act.

A. BASIC RULE OF TITLE I OF THE ADA

Title I of the ADA prohibits covered employers from discriminating against a qualified individual with a disability regarding:

    Ø job applications,
    Ø hiring,
    Ø advancement,
    Ø discharge,
    Ø compensation,
    Ø training, or
    Ø other terms, conditions, or privileges of employment.

Employers must make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability unless it would impose an undue hardship.

The Act prohibits the use of qualification standards, employment tests, or selection criteria that tend to screen out individuals with disabilities unless they are job-related.

Employers, Employment agencies, labor organizations, joint labor-management committees, and the states are covered by the statute. Federal government and government-owned corporations, Indian tribes, and bona fide tax exempt private membership clubs are excluded.

B. WHAT IS A DISABILITY UNDER THE ADA?

Under the ADA a person with a disability is someone who:

                    1) has a physical or mental impairment that substantially limits one or more major life activities,
                    2) has record of such impairment, or
                    3) is regarded as having such an impairment.

This is similar to the definition contained in the Rehabilitation Act of 1973. The EEOC has determined that disability includes psychological disorders such as mental illness, retardation, or learning disabilities.

Certain conditions or lifestyles are not considered impairments and are not disabilities under the ADA. Specifically, the Act excludes homosexuals, bisexuals, transvestites, transsexuals, pedophiles, exhibitionist, voyeurs, persons with gender identity disorders not resulting from physical impairments and persons with other sexual behavior disorders from its definition of disabled individuals.

The ADA specifically excludes compulsive gamblers, kleptomaniacs, pyromaniacs and those who are currently engaged in the use of illegal drugs from coverage.

Also, the act provides that employers may hold alcoholics to the same qualifications and job performance standards as other employees, even if unsatisfactory performance is related to alcoholism.

C. WHICH JOB CANDIDATES ARE QUALIFIED UNDER THE ADA?
The determination of whether an individual with a disability is qualified requires a two-step analysis:

Ø Does the individual satisfy the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, and other job related requirements? If so,
Ø Can the individual perform the essential functions of the position if a reasonable accommodation is made. The EEOC has indicated that the family members and associates of disabled persons may come under the definition of qualified individuals such that employers may not discriminate against a person because that person's family members or associates are disabled.

The inquiry into if a particular function is essential focuses on;

Ø Does the employer actually require employees in the position to perform the functions that the employer asserts are essential, and if so,
Ø Will removing the function fundamentally alter that position? The determination of whether or not a particular function is essential will also include some of the following factors: Ø whether the reason the position exists is to perform that function;
Ø the number of other employees available to perform that job function or among whom the performance of that job function can be otherwise distributed; and
Ø the degree of expertise or skill required to perform the function. Whether a particular function is essential will be made on a case-by-case basis. In determining whether a particular function is essential, all relevant evidence will be considered. The regulations list various types of other relevant evidence, such as the employer's judgement as to which functions are essential, an established job description, the time spent performing that function, the consequences of failing to require the employee to perform the function, the work experience of past employees in the job, and the current work experience of employees in similar jobs.

D. WHAT IS A REASONABLE ACCOMMODATION?

If a person with a disability can perform the essential functions of the position with a reasonable accommodation, the employer must accommodate the person at its expense.

The ADA states that a reasonable accommodation for an individual with a disability may include such things as:

Ø making existing facilities readily accessible,
Ø job restructuring,
Ø modifying work schedules,
Ø reassignments to vacant positions,
Ø acquiring or modifying equipment or devices,
Ø adjusting or modifying examinations, training materials, or policies and
Ø providing readers or interpreters. A reasonable accommodation need not be made if it would impose an undue hardship on the employer's business. To determine whether an accommodation would impose an undue hardship, the following factors will be considered: Ø the nature and net cost of the accommodation;
Ø the overall financial resources of the specific facility where the accommodation would have to be made, the number of employees at the facility and the effect on expenses and resources;
Ø the overall financial resources of the employer, or its business, the number of its employees and number, type and location of its facilities:
Ø the employer's type of operation, including the composition, structure, and functions of its workforce, and the geographic separateness and administrative or fiscal relationship between the specific facility and the employer; and
Ø the impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business. E. PRE-EMPLOYMENT HEALTH QUESTIONS AND MEDICAL EXAMINATIONS.

It is unlawful:

Ø to ask a candidate whether he or she is disabled or about the nature or severity of a disability, or
Ø to require a candidate to take a medical examination before a job offer is made. The ADA allows employers to ask job candidates if they can perform the duties of the job for which they are being considered. ("Can you climb a ladder?")

After a job offer is made, but still prior to the beginning of job duties, an employer may require that a candidate take a medical exam if everyone who will be working in that job category must also take the exam. An employer may condition the job offer on the results of the medical exam. However, if the individual is not hired because a medical exam reveals the existence of a disability, the employer must be able to show that the reason for exclusion are job related and necessary for the conduct of the employers business. The employer should also be able to show that the there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions without the threat of imminent, substantial harm.

Once an applicant has been hired, an employer cannot require a medical examination or ask an employee questions about disability unless the employer can show that these requirements are job related and are necessary for the conduct of the employer's business. Employers may conduct purely voluntary medical examinations that are a part of an employee health program.

Consider the following before disqualifying a person for health related reason following a medical examinations which was job-related and consistent with business necessity:

Ø a person can be disqualified from a job for a health related reason only if it has a direct impact on the ability of the person to do their actual job duties, after reasonable accommodation, without imminent, substantial threat of harm.
Ø any determination that there is a high probability of substantial harm must be strictly and rigorously based on valid medical analyses;
Ø a determination made by a company physician is not conclusive and can be challenged by evidence from the complainant's physician; Disqualification must not be based on paternalistic views about what is best for a person with disability or on generalized fears about risks from the employment environment, such as exacerbation of the disability caused by stress.

An employer may wish to institute the following policies regarding pre-employment inquiries and testing:

(1) Do not ask job applicants any question related disabilities or health matters on job applications or in oral interviews,
(2) If it is necessary to give candidates for a particular job a medical examination, inform all job applicants that any offer of employment is contingent on passing a medical exam and/or answering medical questions.
(3) Store all health related information, especially information concerning disabilities and accommodations in medical files apart from general personnel files.
(4) Use health, medical and disability information only to make reasonable accommodations, or to disqualify a person only if the individual cannot perform the essential tasks of the job after the accommodations are made.
(5) Treat all information concerning disabilities and accom-modations as a confidential medical record. Supervisors and managers can be told about any accommodations or work restrictions required. First aid and safety personnel can be informed if necessary for the purpose of providing possible future emergency aid and government officials investigating compliance with ADA also can be given the information on request. F. DRUG TESTING.

Employers may test for the use of illegal drugs. These tests are not be considered medical examinations under the ADA.

Employers may prohibit the use of illegal drugs and alcohol in the workplace, may require that employee not be under the influence of alcohol or illegal drugs at the workplace, and may require that all employees conform with the requirements of the Drug-Free Workplace Act of 1988.

Former illegal drug users and alcoholics who have been rehabili-tated, who are participating in a supervised rehabilitation program and are not currently using drugs, or those who are erroneously regarded as engaging in the use of illegal drugs are covered by the Act.

G. NOTICES AND ENFORCEMENT.

As with Title VII of the Civil Rights Act of 1964, employers will be required by the ADA to post notices summarizing the Act's pertinent provisions in a conspicuous place. Failure to post the notice will be one of the most common violations of the Act.

The ADA adopts all of the powers, remedies and procedures set forth in Title VII of the Civil Rights Act of 1964.

The remedies available are designed to make the individual or class "whole" and to prevent the employer from engaging in future discrimination. Relief can include hiring or reinstatement with or without back pay and reasonable attorney's fees and costs. A party who prevails in a suit filed by the federal government may also recover its attorneys' fees and costs. As with Title VII, entities covered by the ADA may not retaliate against complainants or those who assist in the investigation of a complaint.

In late 1991 the remedial provisions of Title VII of the Civil Rights Act of 1964 were amended to allow jury trials and compensatory and punitive damage awards in certain instances. Therefore, these same remedies are now available under the ADA.