The Americans with Disabilities Act

Americans Act (ADA): The act requiring employers to make reasonable accommodation for disabled employees; it prohibits discrimination against disabled persons.

The Americans with Disabilities Act (ADA) of 1990 prohibits employment discrimination against qualified disabled individuals. It prohibits employers with 15 or more workers from discriminating against qualified individuals with disabilities, with regard to applications, hiring, discharge, compensation, advancement, training, or other terms, conditions, or privileges of employment. It also says employers must make reasonable accommodation for physical or limitations unless doing so imposes an undue hardship on the business.

ADA does not list specific disabilities, EEOC guidelines say someone is disabled when he or she has a physical or mental impairment that substantially limits one or more major life activities. Impairments include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems, or any mental or psychological disorder. The act specifies conditions that are not to be regarded as disabilities, including homosexuality, bisexuality, voyeurism, compulsive gambling, pyromania, and certain disorders resulting from the current illegal use of drugs.

AIDS: The EEOC’s position is that the ADA prohibits discriminating against people with HIV / AIDS and numerous laws also shield such people. Similarly, the Labor Department’s Office of Federal Contract Compliance Programs requires treating AIDS – type diseases under the Vocational Rehabilitation Act. The bottom line for most employers is that discriminating against people with AIDS is generally unlawful.

The corollary is that employers should encourage managers to persuade employees to work with HIV / AIDS infected employees, and perhaps discipline those who will not. But in reality, many managers do so. One study surveyed 194 managers in various organizations. In many cases, the managers would not discipline employees for refusing to work with the AIDS infected co-worker. This was usually because of a fear of AIDS or because of the possibility that the employee would share health information about the infected co-worker with other employees. Efforts to get employees to work with infected co-workers would therefore benefit from education and support.

Qualified individuals: Under ADA, those who can carry out the essential functions of the job.

Qualified Individuals: Simply being disabled doesn’t qualify someone for a job, of course. Instead the act prohibit discrimination against qualified individuals – those who, with (or without) a reasonable accommodation, can carry out the essential functions of the job. The individual must have the requisite skills, educational background, and experience to dot his job. A job function is essential when, for instance, it is reason the position exists, or it is so highly specialized that the person is hired for his or her expertise or ability to perform that particular function.

Reasonable Accommodation: If the individual can’t perform the job as currently structured, the employer must make a reasonable accommodation unless doing so would present an “undue hardship”. Reasonable accommodation might include redesigning the job, modifying or acquiring equipment or other devices (such as voice recognition software) to assist the person.

Attorneys, employers and the courts are still working through the question of what “reasonable accommodation” means. An employee with a bad back who worked as a door greeter in a Wal-Mart store asked Wal-Mart if she could sit on a stool while on duty. The store said no. She sued. The federal district court agreed with Wal-Mart that door greeters must act in an “aggressively hospital manner”, which can’t be done sitting on a stool. Standing was an essential job function.

Employer Defenses: Many employers have successfully defended themselves. In one case, a social worker threatened to throw her co-worker out a window and to “kick her [butt]” and continued her tirade after returning from a 10 day suspension. After transfer to another job, she was diagnosed as paranoid. After telling her suoervisor several times she was “ready to kill her”, she was fired. She sued under ADA. The court dismissed her case because, although she had a debilitating mental illness, ADA does not require retention of employees who make threats. In another case, the Court held that the employer did not discriminate against a blind bartender by requiring her to transfer to another job because she was unable to spot underage or intoxicated customers. On the other hand, one US circuit court held that punctuality was not an essential job function of a laboratory assistant who was habitually late due to medical treatments. The court decided he could perform seven and a half hours of data entry even if he arrived late. The employer could have made reasonable accommodations.