5-B | WHAT IS PROHIBITED UNDER THE ADA?

1) Discrimination prohibited under the ADA includes:

a) Limiting, segregating, or classifying an applicant or employee in a way that adversely affects their opportunities or status because of disability;

b) Participating in a contractual or other arrangement or relationship that subjects a qualified applicant or employee to disability discrimination;

c) Utilizing standards, criteria, or methods of administration that perpetuate or have the effect of discrimination on the basis of disability; or

d) Denying equal jobs or benefits to a qualified individual because an individual who has a relationship to or association with a qualified individual has a known disability;

e) Not making reasonable accommodations for a qualified applicant or employee the known physical or mental disability, unless the accommodation would impose an undue hardship on the operation of the business of such covered entity;

f) Using tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless job-related and consistent with business necessity; and

g) Failing to select and administer employment tests in the most effective manner to so that the test results accurately reflect the skills, aptitude, or whatever is being tested for, and not an employee or applicant’s impaired sensory, manual, or speaking skills.

2) A “reasonable accommodation” can include measures such as making existing facilities readily accessible to and usable by individuals with disabilities; and restructuring a job or work schedules, reassigning the employee to a vacant position, acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters.

3) Pre-employment inquiries and medical exams are permitted in certain circumstances:

a) Employers are permitted to ask an applicant whether he/she is able to perform job-related activities with or without a reasonable accommodation. An employer cannot ask whether the applicant is disabled or has any physical or mental impairment that may prevent the applicant from performing the job; about the nature of severity of the applicant’s disability; how often the applicant will require leave because of the disability or for treatment; or about the applicant’s workers’ compensation history.

b) Pre-employment medical exams, other than drug tests, are generally not permitted. Offers of employment contingent on confidential medical exams, so long as they are required of all incoming employees, are permitted provided that, if the exams screen out persons with disabilities, the criteria used are job-related, the criteria used are consistent with medical necessity, and there is no reasonable accommodation that would allow the individual to perform the job.

c) Medical exams and inquiries of current employees are permitted only where they are job-related and consistent with business necessity, or where they are necessary to making a reasonable accommodation.

American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006