It’s been 30 years since President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law. ADA does more than just add “persons with a disability” to the list of groups protected against discrimination by Title VII of the Civil Rights Act of 1964 (based on race, sex, etc.). It is designed not just to protect these individuals’ employment opportunities, but also to ensure their access to public services and accommodation. The ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions that had interpreted ADA narrowly, and clarified related issues highlighted by rulemakings and litigation up to that time.
ADA imposes a broad set of requirements on private employers and public agencies, including the following:
Title I—forbids employment discrimination based on disability, and requires “reasonable accommodations” by employers to the special needs of disabled employees and job applicants;
Title II—forbids public agencies from excluding qualified people with disabilities from participation in and benefits from public programs;
Title III—forbids discrimination in commercial facilities and public accommodations based on disability, and requires “reasonable accommodations” to the special needs of disabled people.
ADA assigns the Equal Employment Opportunity Commission (EEOC) to develop and apply employer standards. In addition, the U.S. Department of Justice (DOJ) develops and applies standards covering public agencies, and commercial facilities and public accommodations.
The remainder of this note discusses one important ADA feature, which is the duty for employers to consider reasonable accommodations in order to enable the successful employment of a “qualified individual with a disability” to perform a job.
What is considered a disability?
ADA defines having a disability as any of the following:
a physical or mental impairment that substantially limits one or more of a person’s major life activities
a record of such an impairment
"being regarded as having such an impairment” by the covered entity (employer, agency, etc.)
These terms are defined in the statute, EEOC regulations and guidance, and in decades of court decision. Their evolving applications require employers and agencies to continue to review their own policies, in order to treat employees fairly and in compliance with legal requirements.
How do employers determine if a disabled individual is qualified for the job?
ADA clearly splits the hiring process into two stages. First, the potential employer determines if the applicant is qualified for a job – since this depends on how that job is defined and structured, employers have been encouraged to sort out job duties to eliminate unnecessarily burdensome aspects (failure to do so can be disability discrimination). An employer may not ask a potential employee disability-related questions at this stage, although these issues will arise if an applicant requires accommodation to be able to participate in the application process (such as wheelchair access to interview locations, or Braille copies or a reader for application materials). This stage can include determining whether an applicant meets relevant physical qualifications for a job (such as ability to climb ladders), possesses non-medical qualifications (such as education and employment experience), and/or can describe or demonstrate how he or she would perform job tasks.
Second, after deciding that a potential employee is qualified, and making a conditional offer of employment, the employer may ask disability-related questions or conduct medical examinations. These inquiries can allow the employer to seek to determine if the applicant is a “qualified individual with a disability.” A person meets this standard if he or she can perform the “essential functions” of a job. Essential functions are those responsibilities that the incumbent in a position must be able to perform without the assistance of another employee, or with the assistance of a “reasonable accommodation” (such as a listening device or a special chair; see below). Essential functions are usually limited to the purpose of the job, although in smaller workforces employees may also be expected to perform additional functions that typically would be distributed to other employees in a larger workforce (such as a practical requirement that everyone in a small office be able to answer the telephone and take messages).
What accommodations are reasonable?
When requested by an employee with a disability, employers must provide reasonable accommodations that allow the disabled employee to perform the essential functions of the job. The employer does not have to provide accommodations that, in effect, perform the essential functions of the job on behalf of the disabled employee.
Generally, the individual with a disability must inform the employer that an accommodation is needed. This triggers an employer’s duty to participate in an “informal, interactive process” to reach an agreement about accommodations. Employers must also provide reasonable accommodations to allow disabled employees access to the “benefits and privileges of employment” provided to non-disabled employees, including information postings (bulletin boards, etc.), employee training programs, employee services, and social events. Reasonable accommodations can include:
making existing facilities accessible;
allowing part-time or modified work schedules;
acquiring or modifying equipment;
changing tests, training materials, or policies;
providing qualified readers or interpreters; and
reassigning the employee to a vacant position.
How are employers’ obligations limited?
ADA allows employers to limit accommodations to those that are reasonable in the particular workplace.
First, employers are not required to provide accommodations that will place undue hardship on the business. “Undue hardship” includes significant expense or other difficulty in providing the accommodation, including undue disruptions to business operation. EEOC regulations provide an example of a visually impaired person who cannot see in dim light who applies to be a nightclub waiter, and requests the owner to provide bright lighting as a reasonable accommodation. Because bright lighting would ruin the nightclub’s ambiance, EEOC would consider this an undue hardship. Similarly, accommodations that require the employer to violate a bona fide seniority system are generally not reasonable.
Second, employers need not subject their workplace to a “direct threat to health or safety.” ADA’s direct threat provision expressly covers a disabled potential employee who might pose a threat to other individuals in the workplace. One example of a direct threat would be an individual who suffers frequent seizures who is applying for a job with an essential function of driving or operating heavy machinery. This year, EEOC has determined that COVID-19 poses a direct threat to workplace health and safety, so the pandemic can be relevant to ADA considerations.
Employers and other organizations throughout the U.S. are celebrating the accomplishments and continuing vitality of ADA. Millions of people are potential beneficiaries of its protections. For example, the U.S. Census Bureau applied data from the 2010 census to report that 56.7 million people (19% of the population) had a disability, and in 2015 the Centers for Disease Control and Prevention (CDC) estimated that 22% of all adults in the U.S. have one. In addition to these generalized efforts, organizations should take the opportunity to review hiring and employment practices to evaluate the degree to which they meet the ADA’s letter and spirit.
Has the organization reviewed its job descriptions to ensure that required job elements are all necessary for job, and restructured jobs to eliminate any unnecessary or superfluous requirements?
Does the organization ensure that job descriptions and job announcements reflect availability to qualified persons with disabilities?
Do reviews of job applicants include at least one initial phase in which the applicant’s qualifications are considered, without raising questions about possible disabilities?
Once the organization makes a conditional offer of employment, do its employment practices include the opportunity for the candidate to raise issues relating to disabilities and to discuss reasonable accommodations?
Does the organization maintain statistics about the operation of its efforts to prevent disability discrimination?
Where can I go for more information?
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: email@example.com