This blog is an excerpt from our book An Employer's Guide to FMLA and ADA, authored by Nancy Van der Veer Holt at Ford Harrison LLP. For more state specific leave information, go to the Products tab above and subscribe to the Human Resources Manual for your state.
The Americans with Disabilities Act (ADA) was signed by President George H. W. Bush in 1990. It became effective July 26, 1992. It was most recently amended in 2008 with proposed regulations issued in September 2009 as to these amendments.
The ADA’s purpose was to address and prohibit discrimination against persons with disabilities in matters relating to employment, housing, public accommodations, education, transportation, communication, recreation, health services, voting, institutionalization, and access to public services. According to initial Congressional findings, approximately 43 million Americans are disabled, either physically or mentally. This number will increase as the population becomes older and as the ADA Amendments go into effect. For more information, see Chapter 15, The ADA Amendments Act of 2008.
The ADA consists of five titles or sections:
• Title I covers employment
• Title II deals with public services and transportation
• Title III relates to public accommodations
• Title IV relates to telecommunication
• Title V contains miscellaneous provisions, such as enforcement.
The chapters in this guide will focus on Titles I and V of the ADA.
Title I states that:
“No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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.”
Thus, Title I prohibits discrimination against qualified individuals with a disability who can perform the essential functions of the job with or without reasonable accommodation in all aspects of employment, including, but not limited to, hiring, training, compensation, benefits, promotions, discipline, terminations and social activities. Employers are also required to reasonably accommodate persons with known disabilities unless the employer can show that the accommodation would impose an undue hardship (see page 176, Requirements for reasonable accommodation). Title I of the ADA is enforced by the Equal Employment Opportunity Commission (EEOC). From 1992 through the fiscal year 2010, over 319,000 ADA charges were received by the EEOC. The EEOC, as part of its enforcement efforts, investigates complaints filed under the ADA and may also file lawsuits against alleged violators.
In fiscal year 2010, the EEOC reported that 25,165 charges of disability discrimination were filed, an approximately 15% increase from the previous year. Employers paid $76.1 million in fiscal year 2010 to resolve disability discrimination charges before the EEOC.
Title V contains miscellaneous provisions. Some of these provisions, as they may relate to the employment setting, are as follows:
- the ADA does not invalidate or limit the remedies or rights of any federal, state or local law which provides greater or equal protection to the disabled than those which are afforded by the ADA
- the ADA does not restrict smoking in buildings
- employers (and other covered entities) shall not retaliate against, coerce, threaten, intimidate or interfere with persons who oppose any act made unlawful by the ADA (whether by way of filing a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the ADA)
- the prevailing party in litigation may be awarded attorneys’ fees
- current illegal drug use is not a disability
- certain conditions (transvestism, voyeurism, pedophilia, and others) are excluded from the definition of disability
- the ADA does not require disabled persons to accept an aide, accommodation, service or benefit which he chooses not to accept.
Discrimination under the ADA
Discrimination under the ADA may take various forms. According to the ADA, forms of employer discrimination include, but are not limited to, the following:
- limiting the duties of an individual with a disability based on the presumption about what is best for the person or based on a presumption about that individual’s ability to perform certain tasks
- denying employment to an applicant based on generalized fears about the safety of the applicant or higher rates of absenteeism
- denying a job, promotion or benefits to a qualified person because he has a relationship or association with a disabled person
- denying employment opportunities to a qualified job applicant or employee based on the need to make reasonable accommodation
- failing to make reasonable accommodations for the known physical or mental limitations of a qualified individual with a disability whether that person is an applicant or an employee, unless the employer can demonstrate that the accommodations would impose undue hardship on the operation of the business
- entering into a contractual relationship with another entity (temporary agencies, labor unions, groups which provide training or benefits) which has the effect of subjecting a covered entity’s employee or applicant to discrimination
- utilizing qualification standards, employment tests or other selection criteria which screen out or tend to screen out persons with disabilities unless the standards, tests or criteria are job-related to the job at issue and are consistent with business necessity
- allowing an employee to be harassed based on his disability (in 2001, the United States Court of Appeals for the Fourth Circuit held that disability-based harassment such as harassing an employee about his back condition is a violation of the ADA).