Legal Minute: ADA Basics for Employers

by Teresa Schiller, Beard Kultgen Brophy Bostwick & Dickson, PLLC

With limited resources in a constricted economy, business leaders are relying more on internal teamwork to get the job done. On any team, there is diversity -- a variety of strengths, weaknesses, viewpoints, tolerance levels, and levels of internal influence. This diversity may make good financial sense. It may help a business to develop goods and services that are more attractive to a variety of consumers, and to develop them more efficiently.

To promote diversity, certain federal laws – including the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008 (together, the “ADA”) – protect certain workers and impose requirements on certain employers. Here is some basic information about the ADA as it relates to private employers’ responsibilities toward their employees with regard to non-discrimination, non-retaliation, and non-coercion.

1. What is the ADA?

The ADA -- along with myriad judicial and agency opinions interpreting it -- is broad and complex. The ADA, as written, is divided into five parts, or titles. Title I prohibits employment discrimination. Title II covers public services. Title III addresses public accommodations. Title IV covers telecommunications. Title V discusses retaliation, coercion, and miscellaneous requirements.

Titles I and V are most relevant to private employers, as outlined below.

2. What private employers are subject to the ADA’s non-discrimination, non-retaliation, and non-coercion requirements?

In general, the following private employers are subject to these requirements: (a) employers with 15 or more employees; (b) employment agencies; (c) labor unions; (d) certain federal contractors and subcontractors; and (e) certain employers who receive federal assistance.

3. What discrimination does the ADA prohibit?

The ADA requires private employers not to discriminate against any employee or job applicant (collectively, “employee”) because of any of the following: (a) the employee has a disability; (b) the employee has a record of disability; (c) the employee is regarded as having a disability that is not minor, and that lasts or is expected to last more than six months (even if he does not actually have such a disability); or (d) the employee has an association with a person known to have a disability.

Discrimination can occur as early as the job application process, and throughout employment. During the job application process, discriminatory practices can relate, for example, to (a) written job descriptions, (b) the selection of interviewees, (c) interview questions, and (d) pre-employment testing. During employment, discriminatory practices can relate, for example, to (a) hiring, (b) training, (c) testing, (d) manner and method of work, (e) compensation, (f) benefits, (g) advancement, and (h) termination.

Actions that may constitute disability discrimination are often grouped as follows: (a) “unfavorable treatment,” and (b) failure to accommodate.

First, the ADA helps to protect employees with disabilities from being treated unfavorably at work. Unfavorable treatment may occur when an employee is treated unfavorably because of his disability. Examples of unfavorable treatment include (i) adverse employment decisions, and (ii) harassment so frequent or severe that it creates a hostile work environment. An employer can be liable for unfavorable treatment by supervisors and coworkers, as well as third parties, such as customers and vendors.

Second, the ADA helps to protect employees with disabilities by requiring their employers to provide “reasonable accommodations” under certain circumstances so that they can perform their work duties. Reasonable accommodations may include, for example, (i) accessibility to work sites, (ii) restructured job duties, (iii) acquisitions or modifications of equipment, (iv) modifications of work schedules, (v) adjustment of training requirements, and (vi) reassignments to vacant positions.

Generally, an employee with a disability must ask his employer for an accommodation. The employee is expected to engage in an “interactive process” with his employer, if required, to discuss his disability and to help the employer determine what reasonable accommodation, if any, is appropriate under the circumstances so that the employee can perform the necessary work. An accommodation is not reasonable if it would pose an “undue hardship” on the employer. Undue hardship is determined on a case-by-case basis, and relevant factors include expense and the effect on a facility’s operation. This is an example of a situation where it is helpful for employers to have written job descriptions describing duties and required attributes for all positions.

4. What is a “disability”?

A “disability” is (a) a physical or mental impairment that (b) substantially limits one or more (c) major life activities.

An “impairment” is a condition, disorder, or illness. “Physical” impairments include blindness, diabetes, and missing limbs. “Mental” impairments include mental illnesses like depression, memory loss, Down’s Syndrome, and certain learning disabilities.

“Major life activities” include (i) activities such as standing, walking, thinking, and working, and (ii) the operation of major bodily functions.

Whether an impairment is “substantially limiting” can depend on a number of factors, including (i) how the impairment affects a person’s ability to perform a major life activity, as compared with most people in the general population, and (ii) whether federal regulations relating to the ADA identify a particular impairment as one that should easily be concluded to be a disability, such as a mobility impairment requiring the use of a wheelchair.

5. Are all employees with disabilities eligible for ADA protection?

No. Employees with disabilities must be “qualified individuals” to be eligible for ADA protection. A qualified individual (a) meets a job’s general requirements, and (b) can perform the essential functions of the job, with or without a reasonable accommodation.

The “general requirements” of a job may include certain (i) physical or mental abilities, and (ii) health or safety requirements, to the extent actually required by the job to be done. “Physical abilities” can include the ability to lift a certain amount of weight. “Mental abilities” include the ability to type or use good judgment. “Health and safety requirements” are intended to prevent an employee with a disability from harming himself or others.

“Essential functions” are fundamental job duties. For instance, an essential function of a computer programmer is to write computer programs. For ADA purposes, a computer programmer must be able to write computer programs, with or without reasonable accommodation.

Regarding non-retaliation, the ADA requires private employers not to discriminate against any employee (with or without a disability) for complaining about an act that is unlawful under the ADA. Regarding non-coercion, the ADA requires private employers not to threaten or interfere with any employee’s exercise or enjoyment of his rights under the ADA.

In conclusion, this overview of ADA requirements regarding non-discrimination, non-retaliation, and noncoercion may help private employers to be more mindful of their treatment of employees with disabilities – a group that adds valuable diversity to business teams. Please note that this is a complicated and nuanced topic which changes regularly and often offers no clear answers. Further consultation and thought on any specific instance often is advisable.