In 1990, Congress passed the Americans With Disabilities Act (ADA) to provide equal protection under the law to disabled citizens, who are not identified in the Civil Rights Acts of 1964 or 1991 as a protected group.
The ADA covered various aspects of daily life for the disabled, which are addressed under the following titles:
- Title I: Employment
- Title II: Public Services
- Title III: Public Accommodations
- Title IV: Telecommunications
- Title V: Miscellaneous Provisions
This article considers only Title I, on employment.
Title I of the ADA was intended to strengthen the existing Rehabilitation Act (RA) of 1973 by making language more specific and by including private-sector employers under the previous umbrella of the RA. It provided standards for enforcement of the law and charged government with the responsibility for enforcement. The ADA is administered by three different agencies: the Department of Justice, for public-sector employees; the Equal Employment Opportunity Commission (EEOC), for private-sector employees; and the Department of Transportation, for nonfederal sectors affecting commerce. Although originally covering only employers with 25 or more employees, the act was amended in 1994 to apply to all businesses with 15 or more employees.
Statistics from the EEOC demonstrate that the rights of the disabled are being increasingly defended through litigation. In 1992, ADA claims represented less than 2% of all claims filed with EEOC. From 1993 through 2003, these claims have averaged approximately 20% of all claims filed with EEOC. To put this figure in context, the respective figure for claims alleging discrimination on the basis of race or color is 36%; on the basis of sex, 31%; and on the basis of age, 21%. In the year 2003 alone, ADA claims filed through EEOC resulted in total benefits to disabled claimants of $45.3 million. An ADA claim typically consists of an individual’s assertion that he or she is disabled, had the necessary qualifications for the job in question, and was denied an accommodation that would have made it possible to successfully perform the job, or at least the essential functions of that job. The issues of accommodations and essential function are discussed below.
Although race, sex, and age are relatively clear attributes allowing for a simple determination of who is covered, the disability statute is not so easily applied. Since the passage of ADA, the U.S. Supreme Court has heard 11 cases involving it, many of them dealing exactly with issues related to who is covered by the act. The determination of who is a member of the class of disabled depends on several statutory definitions. A person may be classified as disabled if (a) he or she has a current mental or physical impairment that limits a major life activity, (b) can demonstrate a history of such an impairment, or (c) can show that he or she is being treated as if he or she has, or is perceived to have, such an impairment. But for an individual’s claim to be covered by the ADA, it is not sufficient to simply demonstrate that he or she has an impairment. This impairment must be shown to substantially limit a major life activity. Major life activities include obvious categories such as self-care, walking, talking, seeing, hearing, and breathing. But often, the category is not so obvious, and the individual may claim that the limited life activity is actually that of working. When this is the case, the claimant must show not merely that he or she is unable to perform a single job but that he or she cannot perform successfully in a broad range of jobs as a result of the disability. An example from a court case provides an example of the requirement. An individual with a fear of heights is not seen as substantially limited simply because he or she cannot work on the upper floors of a building, because a wide variety of other jobs are available from other employers that do not require employees to work in high locations.
In addition to showing that they are disabled using any of the definitions above, claimants must also demonstrate that they are qualified. It is not sufficient for claimants simply to show that they possess the knowledge, skills, or abilities needed to do the job. Rather, to meet this requirement, a claimant must show that he or she has the knowledge, skills, and abilities to perform essential job functions and can successfully perform those essential functions with or without a reasonable accommodation. Both of these conditions must be met before the court will consider any claims of discrimination on the part of the employer. If the person is not considered disabled (with the added qualification that the disability substantially limits a major life activity) or does not possess the necessary qualifications to perform essential functions of the job, then the case is dismissed.
In a general sense, essential functions define why the job exists. For example, the essential functions of a bus or train driver are to guide a vehicle on a prescribed route within a fixed period of time and to pick up and discharge passengers. Essential functions of a firefighter are to suppress fires while protecting lives and property. Essential functions are usually identified through the completion of a job analysis or the examination of a job description that resulted from a job analysis. Since 1990, many job analyses have identified certain functions as essential to comply with ADA requirements. Various courts have ruled that to meet the burden of showing that one can perform the essential functions of a job, a claimant must show that he or she can perform all of the essential functions with or without an accommodation, not merely some of them. This logic also affects the very definition of what a job is. Claimants have often argued that they could perform a job if some of the essential functions were moved to other jobs. Courts have held that the employer is not required to redefine a job for purposes of accommodating a disabled applicant or employee. On the other hand, the employer cannot exclude a disabled applicant or employee from a job because the disabled individual cannot perform a nonessential function. As an example, a recent amputee who had been a former patrol officer could ask to be placed on desk duty in a police precinct. The department might argue that even desk officers may be required to respond to outside events in an emergency; however, if it could be shown that no such emergency had ever occurred, then the hypothetical essential function of the desk-duty officer to respond to outside emergencies would be seen as nonessential.
Drug and alcohol abuse occupy special status in ADA. Only rehabilitated drug abusers are protected; individuals currently using illegal substances (e.g., heroin, cocaine, marijuana) are not. The act permits drug testing of employees, including former addicts, provided these tests are reasonable. In this context, reasonable means an articulated policy that is nondiscriminatory. For example, a drug testing policy specifying that testing will occur after a workplace accident or as part of a return-to-work determination after an injury would be seen as nondiscriminatory. In contrast to those using illegal drugs, those who might be defined as current alcoholics may be covered by the ADA and may request accommodations. However, alcohol abusers are held to the same standard as any other employee with regard to not consuming alcohol at the work site and not being under the influence of alcohol when reporting to work. In these instances, alcoholism is not protected as a disability. Nevertheless, an employer may not take adverse employment action against an alcoholic employee because of the consumption of alcohol during nonwork hours unless the consumption has resulted in behavior (e.g., DUI or assault on coworkers during nonwork interactions) that would have led to dismissal or suspension for any other employee who engaged in similar activities. Appropriate accommodations for alcoholic employees might include (a) making sure the employee knows about available counseling, (b) asking the employee to make a commitment to rehabilitation, understanding that failure to honor this commitment might result in termination, (c) establishing a ladder of progressive discipline (e.g., verbal warning — written warning — suspension — termination) for those who continue to drink while in an outpatient treatment program, and (d) providing the opportunity for inpatient treatment if outpatient treatment is unsuccessful.
Those individuals diagnosed with AIDS and other infectious diseases are also protected by ADA, to the extent that the condition does not pose a direct threat to the health and safety of other individuals. As examples, an HIV-positive surgical nurse who refuses to transfer to a nonsurgical area is not protected by the ADA from involuntary reassignment or termination. In contrast, a hospital clerical worker who is HIV-positive cannot be excluded from that position as a result of some general and nonspecific fear that the disease might be transmitted to patients or coworkers. These examples help to demonstrate the more general principle of context. Diabetics and epileptics might function fine in certain job contexts (e.g., routine office work) yet be considered threats to the health and safety of others in other contexts (e.g., jobs involving the use of heavy machinery or working in sensitive positions in air traffic control or nuclear power).
The reasonable accommodation requirement of ADA is unique. It means that the employer may be required to make modifications of the application process, the work environment, and/or the way in which the job functions are performed. It is assumed that there will be a dialogue between the employer and the disabled applicant or employee that will identify what might be considered a reasonable accommodation for the disabled individual. As an example, individuals who are visually impaired may request an oral assessment or someone to read test questions and possible answers to them. Such individuals, if hired, may request a modified work environment to offer protection from moving equipment. Finally, they may request various technical devices (e.g., voice recognition equipment, high-power lighting, or magnification) to enable successful completion of essential job functions. Such accommodations must be reasonable and entail looking at various characteristics of the employing organization, including the cost of the accommodation, the financial resources available for such an accommodation, and the effect of such an accommodation on the overall capability of the organization to conduct business.
The ADA also has practical implications for the application and employment process. Individuals may not be asked to disclose information about a disability (other than a request by that individual for an accommodation in the application process) until after an offer of employment has been made. This is to prevent individuals from being unfairly discriminated against as a result of a covered disability during the employment screening process. The most obvious point at which to run afoul of this protection is the preemployment physical. Although it is permissible to give a preemployment physical to any individual (including disabled applicants), it cannot be administered before a conditional offer of employment has been given to successful applicants. A conditional offer is one that is contingent on passing a physical examination. Further, such physicals must be administered to all applicants, not simply to those who appear to be disabled or who have asked for an accommodation. Even at early stages of the application process—before a conditional offer of employment is made—an employer is permitted to ask individuals if they think that they can perform essential functions that are described to them. Asking applicants to undergo testing for illegal drug and alcohol use as part of the application process does not violate the provisions of the ADA.
- F. Cascio, in 2005, suggested several ways in which employers may embrace the spirit of ADA. These include the following:
- Making the workplace more accessible to individuals with various physical impairments by installing ramps for individuals in wheelchairs or with visual impairments and installing TTY (teletypewriter) and voice amplifiers for individuals with hearing impairments. Newly designed keyboards and computers have been developed for quadriplegics and individuals with cerebral palsy.
- Creating a position within the equal employment opportunity domain of an organization for an individual who would focus on disability issues. Such a position would include responsibility for the orientation and socialization of newly hired disabled workers. This orientation would include the supervisors and coworkers of the disabled employee.
- Educating senior managers in disability issues and gaining commitment to recruit, select, and accommodate individuals with disabilities when necessary.
- Analyzing jobs with the specific aim of identifying tasks and functions for which various disabilities are not an impediment to successful performance.
- Describing successful accommodation experiences to the employees within the organization as well as to those outside of the organization.
The ADA is a complex statute that is still evolving. It was written in a way that encouraged cooperation and dialogue between an employer and a disabled applicant or employee. The courts look favorably on evidence of good faith efforts by both parties to work out a reasonable accommodation where possible. It is best for neither the applicant/employee nor the employer to forget the importance of this dialogue in an eventual judicial decision, should such a decision become necessary.
- Cascio, W. F., & Aguinis, H. (2005). Applied psychology in human resource management. Upper Saddle River, NJ: Pearson/Prentice Hall.
- Gutman, A. (2000). EEO law and personnel practices (2nd ed.). Thousand Oaks, CA: Sage.
- Papinchock, J. M. (2005). Title I of the Americans With Disabilities Act: The short but active history of ADA enforcement and litigation. In F. Landy (Ed.), Employment discrimination litigation: Behavioral, quantitative, and legal perspectives (pp. 294-335). San Francisco: Jossey-Bass.