Employment
The application of the ADA depends on the size or number of employees of the business. Any business with more than 15 employees is covered and required to conform to ADA requirements.
The covered employer must provide reasonable accommodations for the disabled. The reasonable accommodation must permit otherwise qualified persons to perform the necessary functions of their jobs.
What is a "disability"?
Under the ADA, a disability is "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." For example, a person in a wheelchair cannot walk, so the ADA applies.
SIDEBAR: The ADA also defines disability to include a person who is regarded or perceived as having a physical or mental impairment affecting major life activities. The perceived disabled person typically has his or her major life activities limited only because of the attitudes of other people. For example, someone without the use of a hand may be regarded as disabled, but in reality no major life functions are affected.
How do I prove a disability?
The courts require that the following three factors are met:
- existence of a physical or mental impairment
- major life activity affected by the impairment
- major life activity substantially limited by the impairment
What is a "physical impairment"?
Under the ADA, it is any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine.
What is a "mental impairment"?
A mental impairment is any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities.
What is a "major life activity"?
Major life activities are defined as:
- caring for oneself
- performing manual tasks
- walking
- seeing
- hearing
- speaking
- breathing
- learning
- working
What does "substantially limited" mean?
ADA regulations describe a substantially limited person as an individual who is:
- unable to perform a major life activity that the average person in the general population can perform; or
- significantly restricted as to the condition, manner or duration in performing a particular major life activity as compared to the average person in the general.
What is a "reasonable accommodation?"
Reasonable accommodations are job and disability specific but are broadly defined as modifications and adjustments in the:
- job application process
- work environment
- job benefits and privileges
- facilities used by employees
- job restructuring
Is my employer required to modify my work schedules and assignments if I am a disabled individual?
Yes. Your employer can be required to create a part-time or flex-time schedule and reassign you to a vacant position so that you are able to perform the essential functions of your job.
SIDEBAR: Employers must also provide special equipment, training and interpreters if required.
Is pregnancy a disability?
No. However, complications due to pregnancy may be a disability if the impairment is not a normal condition of pregnancy and a major life activity is affected. For example, a woman on bed rest under orders from her physician is "disabled" under the ADA.
I have severe depression, yet have always functioned in my job. I was recently passed over for a promotion. Have I been discriminated against because of my disability?
Maybe. If your employer was aware of your condition, knew about insurance claims, suggested counseling or met with you in the past regarding your depression and questioned you about treatment, you may have been perceived to be disabled. You are protected under the ADA because your employer's perception makes you a disabled person, although you have not been actually impaired.
I unload lumber for a living. I hurt my back and have since been reassigned to a desk job with different hours. Am I being discriminated against because of my back injury?
No. A back injury is not itself a disability unless one of your major life activities has been substantially limited. You will not be able to claim discrimination by arguing that because your employer put you in a different job, you are perceived to be substantially impaired.
I am a data entry clerk and have injured my hand. My physician has limited its use for several weeks. My employer fired me because I cannot type. Is this discrimination because of my disability?
No. You are not disabled. Although you hurt your hand and are unable to use it because of your doctor's restrictions, you are not substantially impaired. You must be unable to perform major life activities to qualify as disabled under the ADA. Although it might be painful, you are not disabled if you are still able to:
- dress yourself
- apply makeup, bathe, comb hair
- make meals
- drive
- eat
If you cannot perform an essential job function, such as typing in data on a computer, and are not disabled, you may be legally terminated.
My employer says the accommodations I want are too expensive. Is this not irrelevant to the requirement that modifications must be made for a disabled worker?
No. Employers are not required to undergo undue hardship in fulfilling the "reasonable accommodations" requirement of the ADA. An undue hardship includes:
- excessive financial cost
- change in the operations of the company, such as workforce restructuring or relocation of offices
- impact on the ability of other employees to perform their duties
- impact on the facility's ability to conduct business
I am a business owner. Must I make reasonable accommodations for disabled individuals without any consideration of the cost?
No. Accommodations that cause an undue hardship on your business are not required.
I have been told that there are some things I cannot ask a prospective employee. What topics am I required to avoid in an interview?
During an employment interview, the candidate cannot be questioned as to:
- past medical history
- current illnesses
- use of prescription drugs
- drug or alcohol treatment
- possibility of future medical leave
Such inquires are considered to be questions that attempt illegally to "ferret" out disabilities. However, you can point out job attendance requirements, and ask if the prospective employee can fulfill the requirements.
TIP: The prohibited inquiries apply to the candidate who is visibly disabled, as well. For example, a person in a wheelchair cannot be questioned as to the nature or severity of his or her disability or the condition that caused it. You can talk about the job functions and ask if he or she can perform them with or without a reasonable accommodation.
I have been fired from my job, and I think it is related to my disability. Can I file a lawsuit for wrongful termination?
Yes, but if you are using discrimination under the ADA as the basis, you must first file a complaint with the EEOC or your state or local human resources agency according to strict criteria:
- You must file the initial complaint no later than 180 days from the date of the alleged discrimination.
- The complaint must be in writing, signed by you (the complainant), include your name and address and describe the alleged discriminatory action in sufficient detail to inform the agency receiving the complaint of the nature and date of the alleged violation.
Once the complaint is filed, you may request a "right to sue" letter from the EEOC at any time. The "right to sue" letter allows you to bring suit at any time in federal district court. It is not necessary for the agency to complete its investigation in order to issue the letter.
SIDEBAR: Typically, supervisors, managers and other employees may not be sued in their individual capacities for discrimination.
I have filed an ADA complaint against my employer and have been reassigned to a smaller office, excluded from department meetings and passed over for a pay increase. Do I have any recourse?
Yes. Your employer is impermissibly retaliating against you for filing a complaint.
TIP: Immediately amend your complaint to include retaliation. If you do not include it, a court cannot consider the retaliation claim if you decide to sue and it is not part of your original complaint. Remember you only have 180 days after the retaliatory act to make the amendment to your original complaint.
I am disabled and filed an ADA complaint against a former employer. Can this former employer give a bad reference to a company who is considering hiring me?
No. Giving a bad reference because you exercised your rights under the ADA is prohibited as retaliation.