Americans with Disabilities Act (ADA)
The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
What is a disability?
Under the ADA, an individual with a disability is a person who:
-Has a physical or mental impairment that substantially limits one or more major life activities
-Has a record of such impairment
-Is regarded as having such an impairment
Who is covered?
There is no definitive list of "disabilities" that are covered by the ADA but the scope of the ADA's definition of protected disabilities extends to persons who:
-Have mental disabilities that substantially limit their relations with others
-Have a history of a disability
-Are perceived as having a disability, even though the impairment is not substantially limiting
-Are recovering or former drug addicts.
-Are infected with AIDS or HIV virus.
-Are able to control their disability through mitigating measures, such as medication but are still substantially limited in a major life activity
-Hidden disabilities - AIDS, HIV, Kidney failure, TB
The following conditions are not protected disabilities:
-Sexual disorders
-Compulsive gambling
-Current illegal use of drugs
-Environmental, cultural, or economic disadvantages
-Stress/depression - may or may not be covered
-Temporary impairments -may or may not be covered
Definition of Impairment
Impairment is a "disability" only if it substantially limits one or more major life activities by:
-Its nature and severity
-How long it will last or is expected to last
-Its permanent or long term impact or expected impact
Major Life Activities- (a non-exhaustive list)
-Walking
-Seeing
-Hearing
-Speaking
-Breathing
-Learning
-Caring for oneself
-Reading
-Bending
-Communicating
-Major bodily functions i.e., immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, etc.
Individuals with disabilities are protected under the ADA if:
-The person meets the legitimate skill, experience, education, licensing or other requirements for the position
-The person has the ability to perform the "essential functions" of the job
What defines an essential job function?
-Whether employees in the position actually are required to perform the function
-Whether removing the function would fundamentally change the job
Essential Job Functions include:
-The position exists to perform the function
-There are a limited number of other employees available to perform the functions
-A function is highly specialized and the person is hired for special expertise or ability to perform
-Employee spends most of his/her time performing the function
-There would be consequences if the function were not carried out
Examples of Reasonable Accommodations
-Making changes to the workplace such as ramps and elevators to accommodate wheelchairs, having accessible rest room facilities and parking spaces.
-Making changes to the work schedule such as allowing time off for treatment, making up time, unpaid leave, taking breaks, adjusting start and end times
-Making changes to the job structure such as restructuring or redistributing duties that are not essential functions
-Equipment modifications such as: raising or lowering a desk or chair, telephone amplifiers, braille machine.
A reasonable accommodation must:
-Be effective -Provide an opportunity to achieve the same level of performance or enjoy the same benefits or privileges as other employees in this position -Be necessary -Be employment-related, reducing barriers to a disabled person's ability to perform
Determining the best way to identify a reasonable accommodation:
-Consult with the person
-A reasonable accommodation may go beyond the ADA's requirements
Interviewing Individuals with Disabilities
Do:
-Be aware of your own "attitudinal barriers"
-Have information about specific disabilities and understand the accommodation process.
-Make the interview accessible:
-Have a sign interpreter if needed. When using and interpreter, remember to look directly at applicant and speak directly to the applicant.
-Ask all questions in a straightforward, matter of fact manner
Don't:
-Assume applicant needs assistance
-Avoid asking questions necessary to make an informed decision
-Tell applicant you admire his/her courage
-Avoid certain questions for fear of sensitivity
-Terminate the interview prematurely
-Conclude the applicant would not "fit in" or assume potential coworkers would feel the same
What Can I ask in the Interview?
-Ask whether the person knows of any reason he/she cannot perform the essential functions of the job
-Ask questions about an applicant's ability to perform job-related functions
-Describe or demonstrate a job function and ask all applicants whether they can perform the function with or without reasonable accommodations
Performance Issues
-If an employee cannot perform the essential functions of the job, he/she is no longer a qualified person.
-Supervisors should focus on three components of each employee's suitability fpr employment: CAP = Conduct, Attendance and Performance. If the disabled employee can comply, the person is qualified.
