James R. Balmforth: Disability Discrimination And The Law

Congress passed the Americans with Disabilities Act (ADA) in 1990. The purpose of the ADA is to prevent discrimination against people with disabilities in the workforce — as well as in most businesses and other places open to the public — by requiring that “reasonable accommodations” be made for many types of disability. The law surrounding disability discrimination can be confusing.

The following discussion should help provide a general understanding of the law under the ADA.

When Does the ADA Apply?

The ADA applies to all employers who employ fifteen or more people for a minimum of at least twenty weeks. It specifically provides that covered employers cannot discriminate against otherwise qualified individuals with a disability in:

• The application process;
• Hiring;
• Training;
• Promotion;
• Pay and benefits;
• Discharge and termination; or
• Any other condition of employment.

Prohibited discrimination includes classifying disabled employees so that their job opportunities are more limited than the job opportunities of non-disabled employees, or setting standards that make it harder for disabled employees to compete. To inform employees of their rights under the ADA, employers are required to post in the workplace a notice outlining the rights guaranteed by the ADA.

“Disability” Under the ADA

The ADA only applies to persons who meet the definition of “disabled” under the Act. A person is considered disabled, and so protected under the ADA, if he or she either actually has, or is thought to have, a physical or mental impairment that substantially limits what the ADA calls a “major life activity.” Major life activities include walking, talking, seeing, and learning.

Although the determination of whether a worker is disabled is made on a case-by-case basis, common examples of disabilities include:
• Confinement to a wheelchair,
• Blindness;
• Deafness;
• Learning disabilities;
• Certain kinds of mental illness.
Alcoholism and drug abuse are specifically mentioned in the ADA and employees are not protected by the ADA, nor are employees who currently use illegal drugs, but an alcoholic who can perform the duties of his or her job despite his or her addiction is protected, as is a recovered alcohol or drug abuser.

Substantially Limited by Disability

Finally, to be substantially limited by a disability, the disability must render the employee unable to work in a broad range of jobs. A disability that only affects the employee’s ability to perform a few specific jobs is not covered by the ADA. For example, if a woman seeks a commercial pilot’s license but is too nearsighted to qualify, she may not be disabled if her nearsightedness only disqualifies her from a job as a pilot, but does not limit her ability to perform a broad range of other jobs.

What is “Reasonable Accommodation”?

An employer has a responsibility to make “reasonable accommodations” for the employee’s disability. Such accommodations often consist of physical changes to the workplace to aid the disabled employee, i.e. installing ramps for an employee who uses a wheelchair. Other accommodations may include:

• Restructuring the job or its duties to allow the disabled employee to perform the work;
• Allowing the employee to take additional unpaid leave for medical reasons or to use vacation for medical leave;
• Moving the employee to a vacant position or to a temporary light-duty position;
• Installing special equipment to help the employee perform his or her duties, or assigning “non-essential” duties of the employee’s job, such as those that only occupy a few minutes a day, to another employee;
• Modifying the work schedule to accommodate the disability; or
• Providing the employee with a qualified reader or interpreter.
Exceptions to the “Reasonable Accommodation” Requirement
The ADA does allow employers limited latitude in refusing to accommodate the disabled in the workplace. If the practical aspects of a certain business are such that a job applicant with a particular disability could not perform the job even if the employer made reasonable accommodations, the employer may refuse to hire the applicant. For instance, if a blind person applied for the position of airline pilot. Despite “reasonable accommodations,” a pilot needs to be able to see, and sight is a job requirement consistent with the pilot’s ability to fly safely. Hence, the airline could refuse to hire an otherwise qualified blind applicant.

What Is Undue Hardship Under the ADA?

An employer may also refuse to accommodate a disabled person if the accommodation that would allow him or her to perform the job is not “reasonable.” The ADA recognizes that, even if accommodation of a particular disability is theoretically possible, the expense or difficulty may render the accommodation extremely impractical. If the employer can show that the necessary accommodation constitutes an undue hardship, the ADA does not require the employer to make the accommodation. An accommodation becomes an undue hardship when it is extremely difficult to put into place, or very expensive to implement — based on the financial costs and practicality of the accommodation required, and the employer’s financial resources, both at the workplace and overall.

Disability and ADA Business Attorney Free Consultation

When your business has been sued for a disiability discrimination or ADA compliance matter, please call Ascent Law LLC for your free ADA and business law consultation (801) 676-5506. We want to help you.