Disability Discrimination and the ADA

The Americans with Disabilities Act (ADA) became law in 1990. The ADA Amendments Act of 2008 expanded many of the protections. The ADA prevents small business owners from discriminating against employees based on actual or perceived disabilities.

If a person can perform the essential job functions of the positions with or without reasonable accommodations, employers must consider them during the hiring process.

The Equal Employment Opportunity Commission (EEOC) oversees disability discrimination law. State and local governments may have other regulations that expand on federal laws.

This article reviews the basic requirements of the ADA and the employer's duties to their workers.

When Does the ADA Apply?

The ADA applies to all companies that employ 15 or more people. Covered employers cannot discriminate against otherwise qualified people in:

• Applying and hiring. An employer may not ask otherwise qualified employees if they need accommodations before a conditional job offer. After an offer, the employer may only ask for the same medical information from a disabled employee they request from other workers.
• Pay and benefits. Disabled employees must get the same wages and benefits as all other workers. This includes health insurance, travel, training, and job-sponsored social events.
• Discipline and termination. Employers must base all job decisions on the employee's job performance and not on the disability or perception of disability. If the employee's condition affects their job performance, the employer may discuss possible accommodations.
• Any other condition of employment.

Discrimination in employment can mean:

• Limiting the job opportunities for disabled workers
• Setting standards that are more difficult for disabled employees to meet
• Having separate sets of work standards for disabled and "able-bodied" workers
• Allowing bullying or harassment to continue once made aware it exists

Employers must display a poster outlining ADA rights in a prominent location in the workplace.

'Disability' Under the ADA

The ADA defines a person with a disability as someone who has or is perceived to have a mental or physical impairment that substantially limits a major life activity. Note that the person does not have to be "disabled" for an employer to discriminate against them.

Employers are usually not the final arbiters of an employee's disability. Common examples of disabilities include:

• Paraplegia or quadriplegia
• Visual impairment
• Hearing impairment
• Learning disabilities

The ADA does not protect current illegal drug use. But the ADA classifies alcoholism and drug addiction as disabilities. The ADA may protect them under the following circumstances:

• Someone recovering from Opioid Use Dependency (OUD) who is being treated for the dependency
• A former alcoholic or drug addict who is in recovery
• Someone who has been using illegal drugs and wishes to enter recovery
• Someone who is currently drinking or using legal drugs (for which they have a prescription) but who can still perform their job duties

Business owners with concerns about a job candidate or a current employee should seek legal advice before taking action.

'Perceived as Having a Disability'

"Regarding someone as disabled" sounds confusing. A business owner would not think an employee had a disability unless they did. This example may help clarify.

A woman had a job that required her to check the underside of trucks. When she tore her ACL, she requested a long-handled mirror so she would not have to kneel. Her employer provided the mirror but fired her because "she could not do her job because of her injured knee." The Sixth Circuit held that since the employer knew of the accommodation and knew of the injury, she had gotten fired due to the perception of her disability.

In general, employers must base hiring, firing, or other job decisions on job performance, not the anticipation of failure. It should never be because a specific injury or accommodation prevents them from carrying out a certain task.

Substantially Limited by Disability

A substantial limitation in the job setting means that the applicant or worker can't perform one or more "essential job functions" with or without reasonable accommodation. The ADA requires employers to list all essential functions of the job on a job posting or in the employee handbook.

Some jobs may have lengthy lists of essential functions (such as a surgeon), and others may have only a few. There may be other tasks that an employer would like a worker to perform, but for ADA purposes, the essential ones are the only ones that matter.

For instance, suppose a job requires workers to stand at a counter five hours a day assembling widgets. An applicant arrives who has only one leg. They can't stand for five hours but can sit on a properly adjusted stool without affecting their assembly ability. The ability to assemble widgets is essential. The ability to stand is not. Although you might prefer to have all your workers standing, the one-legged widget assembler is not limited.

What is 'Reasonable Accommodation'?

An employer must make "reasonable accommodations" when an employee requests them. Reasonable accommodations are any changes to the workplace or the job that enable the worker to perform essential job functions. Workers returning from medical leave must include reasonable accommodations in their return to work plan.

Most buildings already have public accommodations, such as external ramps and automatic doors. Federal and state laws require businesses to allow service animals in most public buildings. ADA compliance in the business place can include:

• Restructuring nonessential job duties to enable the disabled employee to perform the work
• Allowing the employee to use Family and Medical Leave (FMLA) or other unpaid leave for health care purposes
• Moving the employee to a vacant or temporary light-duty position when needed
• Installing special equipment to help the employee perform their duties, such as a TTY or voice-to-text device
• Re-assigning "nonessential" duties to another employee
• Modifying the employee's work schedule to accommodate the disability, such as allowing a worker to arrive later or leave earlier if necessary

Exceptions to the 'Reasonable Accommodation' Rule

An employer is not required to alter the essential functions of the job to accommodate an employee's disability. For instance, the ability to see is an essential function of piloting an aircraft. Someone unable to see can't fly a commercial airplane, and airlines are not required to accommodate this disability.

In court, the burden is on the employer to establish the "essential functions" of the position. The employee must show that they can perform the essential functions or that the functions are unreasonable.

Employers do not have to alter production standards or output to accommodate disabled workers. Employers also don't have to provide accommodations on and off the job. For example, a business owner does not need to provide prosthetic devices or technical assistance equipment in the employee's home.

The exception may be when the employee is working remotely. If the job accommodation allows the employee to work from home, ADA compliance may mean the employer must provide internet access, a computer or laptop, and other hardware.

The accommodation process is interactive and ongoing. The employer must work with the employee regularly to improve and update the accommodations.

'Undue Hardship' Under the ADA

According to the EEOC, an employer does not have to provide accommodations that would present an "undue hardship" to the employer. But, the employer may also not rely on assumptions or general conclusions. Factors may include:

• The resources available to the employer
• The type of accommodation and the cost of implementing it
• The cost to other co-workers
• The nature of the business and the impact of the accommodation on business operations

Employers may not consider customer perceptions or co-worker morale when assessing "undue hardship." But, they may consider the impact of the accommodation on other workers' ability to carry out their own tasks.

For instance, suppose a worker asks to come in one hour later so they can get chemotherapy treatments. This worker is part of a four-person team that needs all four members to function. Rescheduling the other three workers is not possible. This accommodation meets the definition of "undue hardship."

The legislation and case law surrounding the ADA clarify that Congress intended employers and employees to seek out all funding sources when assessing the cost of reasonable accommodations. Simply because a job-related accommodation is costly should not prevent an employer from considering it. Tax incentives and funding through state disability offices may exist.

If there are two possible accommodations, and one will cause undue hardship but the other will not, the employer must accept the second accommodation. Reasonable accommodation is an interactive process. All parties must work to find an acceptable compromise.

For Employers — Legal Help with an ADA Claim

If your business faces a potential claim under the ADA in the employment context, contact an employment law attorney to discuss your options and protect your business.