Americans with Disabilities Act

posted by Neil Klingshirn | Jun 20, 2009 07:38 AM [EST] | applies to Ohio

The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with disabilities. 42 USC 12101 et seq. A qualified individual with a disability is an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the job. The term "discrimination" under the ADA includes not making a reasonable accommodation, unless the accommodation would impose an undue hardship on the employer.

When enacted in 1990 and signed into law by President George H. W. Bush, Congress found that 43 million Americans, or about one in six, had one or more physical or mental disabilities. Over the next 18 years, however, U.S. Supreme Court decisions limited the reach of the ADA. The ADA Amendments Act, passed in 2008, restores the original scope of the ADA. This article describes the ADA as amended by the ADAAA.

Covered Employers

The ADA borrows the definition of "employer from Title VII of the Civil Rights Act of 1964, which requires 15 or more employees. An employee includes those who work each day in each of 20 or more calendar weeks in the current or preceding year.

The United States and private 501(c)(3) clubs are excluded from the definition of "employer."

Covered Employees

The ADA protects "Qualified individuals." The qualifier, "with a disability," was dropped with the amendments contained in the ADAAA.

A qualified individual means:

an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

Reasonable accommodation may include:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Undue hardship, in general, means:

an action requiring significant difficulty or expense, when considered in light of the following factors:

(i) the nature and cost of the accommodation needed under this Act;

(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

42 USC 12111.

Prohibition Against Discrimination

The ADA states that a covered employer shall not:

discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 USCS § 12112(a)(emphasis added).

"Discriminate" includes:

(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or

(B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant;

42 USCS § 12112(b)(5)(emphasis added).

Definition of Disability

The term "disability" means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

Major life activities.

The ADAAA amendments modify the definition of Major Life Activities and by expand the definition of "regarded as disabled," discussed below.

Major life activities now include, but are not limited to:

(A) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and

(B) the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Substantially Limited

The ADA does not define the term "substantially limits." Rather, the EEOC does so in section 1630.2(f) of its regulations. 29 CFR Part 1630. The ADAAA, however, directs the EEOC to revise its definition of "substantially limits" in accordance with the following directions:

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as-

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(i) the term "ordinary eyeglasses or contact lenses" means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term "low-vision devices" means devices that magnify, enhance, or otherwise augment a visual image.

The term "substantially limits" shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.
An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Regarded as Disabled

The ADA, as amended by the ADAAA, now states that an individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. In other words, the employer does not have to regard the impairment as subtantially limiting. As long as the employee proves that the employer discriminated against him or her because of an impairment, real or imagined, the employer has discriminated against the employee on the basis of a disability. However, this shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Supervisor and Individual Liability Under the ADA

Supervisors and individuals are not liable under the ADA, unless they otherwise meet the statutory definition requiring employment of 15 employees.

External Links

Links to external sites with additional information about this topic.

posted by Neil Klingshirn | Jun 20, 2009 07:38 AM [EST] | applies to Ohio

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Neil Klingshirn
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