1. Chapter 12 Disability Discrimination Employment Law for BUSINESSsixth edition Dawn D. BENNETT-ALEXANDER and Laura P. HARTMAN McGraw-Hill/Irwin Copyright © 2009 by The McGraw-Hill Companies, Inc. All rights reserved.

2. Statutory Basis Americans with Disabilities Act of 1990, ¶602, §102 No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 12 – 2

3. Removing Old Barriers Groups with disabilities continue to face the frustration of physical and attitudinal employment barriers Almost one in five Americans have one or more physical or mental disabilities Research has shown that the performance of a disabled worker, when properly placed, equals that of an able-bodied coworker Employers should be “disability-blind” 12 – 3

4. ADA Overview Prohibits employers from discriminating against a “qualified individual with a disability” with respect to any employment decision Requires employers to take proactive steps to make their workplaces amenable to the impaired worker Enforceable against employers with 15 or more employees. 12 – 4

5. The Prima Facie Case for Disability Discrimination To make a claim an employee must prove: That she or he is disabled That she or he is otherwise qualified for the position If an accommodation is required, that the accommodation sought is reasonable That she or he suffered an adverse employment decision, such as a termination or demotion, as a result of the disability. 12 – 5

6. Definition of Disability A person is disabled and therefore protected under the ADA if he or she: Has a physical or mental impairment that substantially limits one or more major life activities – working is considered a major life activity. Has a record of such impairment (e.g., prior history of drug or alcohol abuse, former cancer patient) Is regarded or perceived as having such an impairment. An individual can have no disability or impairment but can be covered under the ADA if a supervisor believes a particular disabling condition exists! (perhaps due to appearance, speech, misread medical records) ADA coverage turns solely on the employer’s perception, not on any actual medical evidence (e.g., rumor that an employee has AIDS). Disability A physical or mental impairment that substantially limits one or more of the major life activities of an individual; a record of such impairment; or being regarded as having such an impairment. 12 – 6

7. Examples of Physical & Mental Disabilities under the ADA: Mental and psychological disorders Epilepsy (even if controlled by medication) Hearing Loss (even if corrected with a hearing aid) AIDS or HIV + Cancer Diabetes Alcoholism Etc… 12 – 7

8. Conditionsnot Considered “Disabilities” under the ADA: Physical Characteristics (e.g., blue eyes, left-handedness, red hair) Age (protected under ADEA) Obesity (unless it results from a physiological disorder, like a glandular disorder) Environmental, cultural and economic disadvantages Homosexuality Compulsive gambling Kleptomania Etc… 12 – 8

9. Illiteracy is not an impairment, unless the inability to read is due to dyslexia or other learning disabilities. A person suffering from general stress because of job or personal problems will not be covered by the law. But if diagnosed by a psychiatrist as having an identifiable stress disorder, the law may apply. Current users of illegal drugs are not considered “disabled” under ADA but former users may be protected, e.g., individuals who currently are not using but are participating in a rehab program, or have a record of successfully completing a rehab program, or individuals who are erroneously regarded as having engaged in drug use. Is Illiteracy, Stress, or Drug Use a Disability under ADA?

10. Who is a “Qualified Individual with a Disability”? A person with a “disability” (as defined under ADA) who satisfies the requisite skill, experience, education, and other job-related requirements of the position AND can perform the essential functions of the job at issue, with or without reasonable accommodation. An employer may not consider the possibility that an employee or applicant will become disabled or unqualified for the position in the future Was the applicant or employee qualified at the time the adverse employment action was taken? 12 – 10

11. Essential Functions Essential functions refers to those tasks that are fundamental, and not marginal or unnecessary, to fulfillment of the position objectives Would removing the function fundamentally change the job? 12 – 11

12. What is a “Reasonable Accommodation”? Any change is the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. The removal of unnecessary restrictions or barriers, provided it does not place an undue burden on the employer. Examples: adapting a workspace to the use of a wheelchair; making hours flexible so rest periods can be taken; etc. 12 – 12

13. Reasonable Accommodation - Continued An accommodation does not have to be the best possible solution. Reasonable accommodation does not mean that the employer must hire a new person to “help” the disabled person or ‘check” his/her work; nor modify a full time position in order to create a part time position; nor modify the essential functions of the job by reassigning or reallocating essential job functions. An accommodation that would require other workers to work harder or longer is unreasonable under the ADA. 12 – 13

14. Accommodation of “Known” Disabilities ADA requires an employer to reasonably accommodate the known physical or mental limitations of a “qualified individual with a disability” unless it would result in an undue hardship for the employer. Employers are not required to accommodate disabilities they do not know about! An employee must notify the employer that he/she has a disability and is requesting an accommodation. Once the need for an accommodation is raised, the employer may request documentation showing the employees ADA disability, functional limitations and need for a reasonable accommodation. Employees who refuse to supply this information are NOT entitled to reasonable accommodation. 12 – 14

15. Undue Hardship Undue hardship exists if an accommodation requires significant expense – the more financially secure the employer is, the more difficult to establish undue hardship based on expense. Undue hardship exists if it would be unduly costly, extensive, substantial or disruptive to the employer’s business. Undue hardship exists if an accommodation would fundamentally alter the nature or operation of the business, or lower the standards of performance. Undue hardship exists if an accommodation modifying an individuals schedule prevents others from performing their jobs. 12 – 15

16. Can you reject an applicant on the basis of a disability? An employer may reject an applicant on the basis of a disability if: The applicant is unable to perform the essential functions of the job with or without reasonable accommodation (e.g., may deny a warehouse inventory job to a person who cannot lift over 5 lbs. because of a back injury). Any necessary accommodation would impose an undue hardship on the employer (expensive does not always equal hardship!) The applicant would pose a direct threat to the health and safety of themselves or others (an epileptic school bus driver). 12 – 16

17. Management Tips to Avoid Liability under the ADA Employer’s focus should be on whether a person is qualified to perform the job in question. Employer’s should base employment decisions on the abilities of the particular person, not on a generalized notion of the sort of person who usually performs the job (teenage mail deliverer vs. wheelchair bound > 40 year old). Avoid stereotyping – often we have misconceptions about people who have disabilities. Requests for accommodations and an employer’s responses should be an interactive process – while the employee must inform his employer of a disability and that an accommodation is needed, the employer should be receptive and responsive in finding a reasonable accommodation. Be creative when considering accommodations. 12 – 17

18. Summary Statutory protections against disability discrimination in employment strike a balance between the right of individuals with disabilities to have job opportunities and the need of employers to have an “able” workforce. Not every impairment will lead to protection as a disability. However, those who have a record of such an impairment or have been perceived as having such an impairment are also protected. The balance between employees’ rights and employers’ needs is further maintained by the concept of reasonable accommodation. Employers are well advised to ensure that they fairly and equitably analyze these issues in addressing all disability-related situations arising in the workplace. 12 – 18