Prior to 1990, people with disabilities had little recourse if they were discriminated against in obtaining or keeping a job. Now, the Americans with Disabilities Act of 1990 (ADA) requires that, when needed, on-the-job accommodations be made so that employees with disabilities have opportunities equal to those of their non-disabled peers.
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The ADA states that "no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity of a public entity."
When President George Bush signed the ADA into law on July 26, 1990, people displayed strong reactions on both sides of the issue. On one hand, some advocates felt that the ADA would bring an end to discrimination against people with disabilities in the workplace and in public facilities. On the other hand, many business organizations thought that compliance with the ADA would require unreasonable modifications to employment practices and procedures, and would cost the employer and the American public large sums of money. In reality, the ADA may not have deserved such swift and emotional public reactions. When the dust settled it appeared that the requirements of the ADA would not bankrupt businesses. It was also clear, unfortunately, that the ADA would not immediately end discrimination against people with disabilities.
The ADA is the first comprehensive federal civil rights statute protecting people with disabilities from discrimination in employment, public services, transportation, public accommodations, and telecommunications. It affects almost every employer and public service provider and all transportation and housing providers in the United States.
Prior to the ADA, federal laws protecting people with disabilities from discrimination were limited to those recipients of funds or contracts from the federal government. The ADA applies to all private employers, including state and local government agencies, with 15 or more employees. Title I prohibits private employers, 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.
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Knowledge of legal issues that affect the employment of people with disabilities is critical to the success of students with disabilities as they transition from school to work. Let's look at some of the terminology employed by the ADA. First of all, we will address who is considered to be a "person with a disability." The ADA states that a person with a disability is someone who:
- has a physical or mental impairment that substantially limits one or more major life activities, including walking, seeing, hearing, speaking, breathing, learning, and working;
- has a record of such an impairment; or
- is regarded as having such an impairment.
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Note that the ADA uses a functional rather than a medical definition. In other words, the ADA is not concerned with a particular diagnosis. The law looks at disability only as it relates to the performance of specific tasks. Some of the types of disabilities that may be included under the ADA's sweeping legislative coverage include, but are not limited to, spinal cord injuries, loss of limbs, Multiple Sclerosis, Muscular Dystrophy, Cerebral Palsy, hearing impairments, visual impairments, speech impairments, specific learning disabilities, head injuries, psychiatric disorders, Diabetes, Cancer, and AIDS. These specific categories of disabilities are conditions which may limit the ability of people to perform certain tasks. Some of these conditions are readily apparent and some are not visible.
People who have the same named condition or diagnostic label may have very different skills and abilities when it comes to performing specific job-related tasks. For example, one person who has Cerebral Palsy may have difficulty walking. For another person, Cerebral Palsy may result in no functional use of her hands. For a third individual, Cerebral Palsy may primarily affect his ability to speak. A person who has a disability requires an accommodation on the job only when the disability has an affect related to the specific job and work environment.
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Now let's consider who is a "qualified" applicant or employee with a disability. The ADA identifies a qualified person with a disability as an individual who, with or without a reasonable accommodation, can perform the essential functions of the job in question.
Now, let's look at examples of "reasonable" accommodations.
- A modification or adjustment to the application process that would allow a qualified applicant with a disability to be considered for a specific position.
- A modification or adjustment to the physical layout of the worksite that would make it possible for a qualified individual with a disability to perform the essential functions of the job.
- Purchasing equipment that will allow an employee with a disability perform the tasks required on the job, such as an amplification device for a telephone for someone with a hearing impairment, a raised desk that allows access by a person using a wheelchair, or creating files with large print identification or Braille for a person with a visual impairment.
- Restructuring job duties, modifying work schedules or reassignment to a vacant position.
Employers are not required to lower the standard quality of their product or their rate of production to make an accommodation. Nor are they obligated to provide personally prescribed devices such as wheelchairs, personal care attendants, glasses or hearing aids.
Employers are only required to make an accommodation for a qualified applicant or employee with a known disability if it would not impose an "undue hardship" on the operation of the employer's business. An undue hardship is defined as an action that requires significant difficulty or expense in relation to the size of the employer, the resources available, and the nature of the operation. When employers attempt to make the determination regarding whether a request for an accommodation is reasonable, they must consider the size of their business, their financial resources, the effect of the accommodation on other workers, and the nature and structure of their business operation. Rarely is an accommodation for an employee so costly that undue hardship can be claimed.
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The intern or employee is required to make the request for a reasonable accommodation. The employer is not required to guess or to initiate the conversation regarding the provision of accommodations. In fact, a pre-employment inquiry about a disability or medical condition may not be made by the employer prior to a job offer. This includes asking a question about accommodations on a pre-employment questionnaire or written application form. An employer may only ask questions regarding the applicant's ability to perform specific job-related functions.
Frequently, when a qualified individual with a disability requests an accommodation, the appropriate accommodation is obvious. The request may be based upon his own life or work experiences. However, when the appropriate accommodation is not readily apparent, the employer must make a reasonable effort to identify one. The best way to do this is to consult with the applicant or employee who has a disability regarding potential accommodations that would allow him to perform the essential functions of the job.
If the employee or intern and the employer are not able to identify an appropriate accommodation, then the employer or employee with a disability may wish to consult the Equal Employment Opportunity Commission (EEOC). This organization provides a resource for information about ADA requirements affecting employment. State or local vocational rehabilitation agencies, or state or local organizations representing or providing services to individuals with disabilities may also be sources of useful information. Another resource is the Job Accommodation Network (JAN). JAN is a free consultant service that helps businesses and employees determine effective worksite accommodations. Contact information for EEOC and JAN can be found in the Resources section of this notebook.
In most cases, these methods are effective in determining appropriate accommodations. If disagreements cannot be resolved between the employer and the employee regarding what accommodation is reasonable, a complaint can be filed by the employee with the Department of Justice (DOJ). DOJ is the federal agency designated to investigate complaints based on noncompliance of the ADA. The Department of Justice has achieved greater access for individuals with disabilities in hundreds of cases. However, under general rules governing lawsuits brought by the federal government, the Department of Justice may not sue a party unless negotiations to settle the dispute have failed. In addition, the Department of Justice may file lawsuits in Federal court to enforce the ADA, and courts may order compensatory damages and back pay to remedy discrimination if the Department prevails. Further information about legal issues and reasonable accommodation can be obtained from the Office of Equal Employment Opportunity. Contact information can be found in the Resources section of this notebook.
Misconceptions about people with disabilities generally come from a lack of knowledge about a specific disability. When people without disabilities interact with people with disabilities they tend to have more positive attitudes about working together. Further, employers and co-workers who are familiar with a variety of on-the-job accommodation strategies are better prepared to make appropriate accommodations and to fully include people with disabilities in work environments. Specific strategies for accommodating and working with individuals with disabilities are covered in later sections of this notebook.