EEO LAW BASICS
CHAPTER 5
AMERICANS WITH DISABILITIES ACT OF 1990 (“ADA”) 42 USC §§12101 ET. SEQ.

1) The ADA applies to the following employers:

a) Private employers “affecting” interstate commerce, employing more than 15 workers each working day is each of 20 weeks in the current or preceding calendar year.

b) Public Sector Employers:

(i) State and local governments, state agencies.

(ii) State colleges and public school districts.

c) Employment agencies.

d) Labor organizations.

e) Joint labor-management committees.

f) Covered entities in foreign countries.

2) The ADA does not apply to the following employers

a) Bona fide membership clubs.

b) Indian tribes.

c) The federal government, corporations owned by the United States recipients of federal financial assistance, and federal contractors, which are all covered by the Rehabilitation Act of 1973.

3) A qualified individual with a disability is protected under the ADA.

a) Employer and employee status is determined by the common-law “control test.” Clakamas Gastroenterology Assocs., P.C. v. Wells, 538 440 (2003).

b) “Disability” is “(A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (B) having a record of such an impairment, (C) being regarded as having such an impairment.”

c) Excluded from the definition of “disability” is the current use of illegal drugs or the use of alcohol at the workplace. But former drug users who have completed a supervised drug rehabilitation program are protected. Also excluded from “disability” are homosexuality, bisexuality, transvestitism, pedophilia, exhibitionism, voyeurism, sexual behavior disorders, compulsive gambling, kleptomania, psychiatric substance abuse disorders.

d) A “major life activity” is a function such as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Mental and emotional processes such as thinking, concentrating, and interacting with others are major life activities.

e) Determining if an individual is “substantially limited” in a major life activity turns on the nature, severity and duration of the impairment. The individual must be significantly restricted in a class or broad range of jobs. Courts must consider whether the individual can correct or “mitigate” the disability.

f) A disabled individual is “qualified” where she can, “with or without a reasonable accommodation” “perform the essential functions of the job.”

g) The “essential functions” of the job are the fundamental duties actually performed by incumbents.

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

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

1) The individual poses a “direct threat” to the health and safety of others.

Factors to be considered are the duration of the risk posed, the nature and severity of the proposed harm, and the imminence and likelihood of the harm.

2) The employer was not made aware of the need for accommodation. In many instances, almost any request by an employee related to a medical condition is sufficient, provided that it is sufficiently specific.

3) The requested accommodation poses an “undue hardship” on an employer in that it is significantly difficult or expensive, considering factors such as the nature and cost of the accommodation, the nature of the employer’s facility and operations, and the employer’s resources.

4) A reasonable accommodation was offered and refused. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

Notices describing rights under the ADA must be conspicuous and accessible to employees and applicants. American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

1) Equal Employment Opportunity Commission

2) Individual suit

3) Representative/Class actions American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006

1) Back pay

2) Front pay

3) Reinstatement, promotion, hiring

4) Compensatory damages

5) Punitive damages

6) Injunctive relief

7) Attorneys fees and costs American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006