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A manager's guide: Americans with Disabilities Act of 1990.

Discrimination of many types has been a high profile subject for years. In 1964, the landmark Civil Rights Act was passed, outlawing discrimination on the basis of race, religion, sex, and national origin. Age discrimination in employment was banned in 1967, and the Rehabilitation Act of 1973 prohibited discrimination against disabled people by government-funded carriers.

Civil rights groups have campaigned against discrimination toward the disabled, the subject of a 1986 report to Congress. The Americans With Disabilities Act (ADA), signed by President Bush in 1990, may be regarded as the outcome of these and other efforts.

On July 29, 1992, the Americans With Disabilities Act of 1990 became effective for many companies. This act forbids discrimination against the physically and mentally disabled in employment, public services, transportation, public accommodations, and telecommunications. Perhaps the most important civil rights legislation in almost 25 years, this new law will have a dramatic effect on employment practices and operations. Therefore, managers need to be aware of changes that will be required of them when the Act is completely phased-in.

The Act resembles the Vocational Rehabilitation Act of 1973, which supplements local and state laws in outlawing discrimination against the disabled by federal contractors, recipients of federal assistance, and federal agencies.

This paper is an introduction to the Act and mainly concerns Title 1, the part that addresses regulation of employment methods which might affect a disabled person. The Act first covers all employers with 25 or more employees per work day for 20 or more weeks; on July 26, 1994, it will be extended to employers with 15 to 24 employees.(1)

The Act applies to all employers involved in interstate business and is enforced by the U.S. Equal Employment Opportunity Commission. Employers must post a notice telling employees of their rights under ADA.

Basically, discrimination against qualified, disabled people in hiring, compensation, promotion, termination, and job opportunities is not allowed. The Act defines disability as a physical or mental impairment which substantially limits one or more "life activities" of an individual; or an individual's being regarded as having such an impairment.(2)

Implications for Managers

The term "life activities" is certain to be a contentious subject leading to numerous lawsuits. What are "life activities?" Obviously they include breathing, seeing, and walking. Some disabilities are obvious, such as loss of an arm or leg; but other examples of impairments include heart disease, learning disorders, psychoses, and other forms of mental and emotional disabilities. Specifically excluded from the Act are behavior patterns such as homosexuality, kleptomania, and disorders resulting from current drug use. Included as disabilities or impairments are alcoholism, non-current drug abuse, being HIV positive, and obvious physical disabilities.(3)

Medical exams may be given, but only after a job offer has been made and only if all employees are given the same exam.(4) Even medical examinations or inquiries may give rise to lawsuits unless conducted with a full understanding of the Act.(5) Presumably, a medical exam will include a psychiatric exam. Brown believes that psychological disabilities will be the most difficult to evaluate and, therefore, the most contentious. She reasons that a person with post-Vietnam stress syndrome may be capable of doing a job, but only if not pressured, and therefore may have a reason to question an employer's decision not to hire him or her.(6)

The job offer cannot be withdrawn unless the results show that the individual cannot do the job after reasonable accommodation to do the job has been made. If a person has been offered a job in a mail room and, after a physical and mental examination, is diagnosed with post-Vietnam syndrome, the company may decide to rearrange the layout of the mail room, break the job into smaller, less stressful parts, or otherwise try to accommodate the employee.

People with AIDS are regarded as disabled, and this can be a cause of worry to employers in the food handling business and professions requiring social contact such as teachers, dental technicians, and social workers. Since AIDS is believed not to be transmitted by food or social contact, employees with AIDS may not be rejected from these jobs, which could lead to public relations problems. Due to a public outcry, a teacher with AIDS might be transferred from the classroom into an administrative position. Perhaps the teacher could obtain additional training and qualify for a different kind of job. The school system should, in this case, try to accommodate the teacher. At other times, a transfer may be difficult or even impossible. The Secretary of Health and Human Services will distribute a list of diseases transmitted by food handling. If the person has an infectious or communicable disease on the list which cannot be avoided by reasonable accommodation, the employee may be refused that job.(7)

Drug usage also comes under scrutiny in the Act as well. Someone currently using illegal drugs is not protected from discrimination; however, a person is protected if he or she is no longer using illegal drugs, has completed, or is in a supervised drug program. An alcoholic is considered disabled and may not be discriminated against in hiring and promotion policies and practice.

Employers can, however, prohibit the use of illegal drugs or alcohol on the job and can insist that employees under the influence of drugs not be on the job. Employees who have used drugs or are alcoholics must meet the same job performance standards as other workers. Employers may enforce drug testing regulations of federal agencies such as the Department of Transportation to assure themselves that their employees are drug free.(8)

The onus is on the employer to disregard disabilities when making a job offer. This is true whether disabilities are obvious or not. Questions about physical or mental condition are not allowed in interviews or on application forms. The employer can only ask about the ability to do a job.

The prospective employee is not required to volunteer information about a disability that is not detected by a medical exam. Indeed, disabilities covered under the Act are regarded as irrelevant to the job offer. Multiple sclerosis, for example, is not easily detected in the early stages but can become completely disabling. Like epilepsy and many other disorders, it is one of the invisible diseases covered under the Act. The capability of qualified individuals with disabilities must be determined on a case-by-case basis.(9)

An understanding of what constitutes "reasonable accommodation" will be another source of difficulty. Examples include making the work place physically accessible to a disabled person, changing the job method, changing the equipment, adjusting the work place, and providing training or counseling. If an employee is restricted to a wheelchair, the employer could widen a space in his work area to accommodate a wheelchair. A person with only one arm might be trained to operate modified equipment with one hand and one foot. Training or counseling is an option in the case of an employee who is temporarily or permanently disabled as a result of a stroke. Obviously "reasonable accommodation" is not without cost; but benefits derived may outweigh those costs. The handicapped worker may be more loyal or trustworthy than a more "ablebodied" counterpart.

Accommodation is not considered reasonable if it causes "undue hardship" to the employer, who has the burden of proving his case.(10) Hardship factors include cost, feasibility, and resources of the employer. There is no specific rule, and a judgment will be based upon the specific case. It would be quite inappropriate to hire someone to help direct a partially blind hoist operator. It would be similarly inappropriate to hire a blind movie reviewer; but, with new technology, the blind could be employed as computer or telephone operators if the equipment they use is adapted, sometimes at minimal cost.

Types of practices regarded as discriminatory are classified in the Act. Apart from "reasonable accommodations," attention is also given to selection criteria for a job.(11) It would be regarded as discrimination to have a standard of hearing for a teacher.

Other categories address the harassment of anyone who brings a charge under ADA, and the consequences of denying jobs or benefits to a person who associates with a disabled person, such as the spouse of someone with AIDS.(12) These are some of numerous categories, all of which should be studied with care as they may have legal implications.

Employers who spend money to remove physical or transportation barriers for the disabled, such as stairways, may deduct up to $15,000 per year for income tax purposes. Small businesses with gross receipts under $1 million or with 30 or fewer full-time employees may be eligible for a tax credit. A credit of up to $5,000 may be available to offset as much as 50% of the cost of yearly eligible access expenditures between $250 and $10,250.(13)

Other resources are available in the form of tax credits, reimbursement for job training costs, and limitations on wages for some disabled persons.(14)

The overall effect on group insurance rates is not clear since disabled workers may not be denied insurance or given different terms due to their disability. For example, people with diabetes cannot be refused insurance if it is available to others nor can they be charged higher premiums. Presumably, hiring more people who are physically and mentally unhealthy will be more expensive for a company in terms of health insurance. This is certainly something the manager must at least consider.

Recommendations

What can the employer do for protection against charges of discrimination? A good first step is to read the Act carefully. Make sure job descriptions properly cover the job, although admittedly it is not easy to be specific without a lot of detail. Make sure jobs do not appear to discriminate against any disability.

Application forms and interview checklists should be reviewed to remove any questions relating to disabilities. Employers should train interviewers to ask questions concerning only functions essential to the job such as the ability to read and write.

Another important consideration is implementing an internal, systematic method for dealing with potential complaints of discrimination. The employer needs, more than ever, a well defined plan to deal with employee grievances. The grievance plan could be posted near the notice telling employees of their rights. The manager should deal with employees within the firm before they seek outside assistance with perceived or real discrimination.

The employee manual or handbook should also be revised to remove any references that would tend to discriminate against disabled individuals. Promotions must not be tied to physical or mental disabilities.

An inspection should be conducted to locate any possible physical barriers to access to the job site and to determine if the equipment used on the job or its controls can be sensibly modified to meet the needs of a handicapped person.

The collective bargaining agreement should be studied. If it includes provisions that might be construed as being discriminatory, it should be discussed with the union.

Make sure any physical requirements are really essential. Even with present technology you might not hire a completely deaf person as a telephone operator, but could you reject a blind person with good hearing?

It may become increasingly important to hire the handicapped. What has been a slogan for a few companies will become a reality for all companies by July 26, 1994, when even small employers must comply with the Act. One of the benefits to be derived from the legislation is that people formerly on welfare, but basically willing workers, will have an opportunity to become productive members of society. As the American population ages, hiring the disabled will give the country a virtually untapped source of workers. Although disabled workers, who have had little chance of obtaining employment in the past, may require a little extra consideration, they could prove to be some of the most hard working and loyal employees.

Conclusions

The intentional vagueness of the Act may be troubling to many businesses who may expect suits and challenges based on believed violations. ADA relies on the courts for enforcement. As Nancy Fulco says,

Leaving reasonableness to the discretion of the courts is scary, and it's a mistake to think it's not going to cause litigation. We're going to see litigation all over the place. It's a certainty, a given.(15)

The Federal Job Accommodation Network offers free advice to those wishing to hire disabled people. Call 1-800-526-7234.

END NOTES

1. Appendix, Section 12111 (5).

2. Appendix, Section 12112 (b) (1-7).

3. Appendix, Section 12114.

4. Appendix, Section 12112 (c) (3) (B) (a).

5. Perkins, Nancy L., "What You Need to Know About the Americans with Disabilities Act," Supervisory Management, (March 1991), p. 4.

6. Brown, Barbara Berish, "Washington Scene," Employment Relations Today, (Autumn 1990), pp. 243-248.

7. Appendix, Section 12113 (d).

8. Appendix, Section 12102 (2).

9. Perkins, Nancy L., "What You Need to Know About the Americans with Disabilities Act," Supervisory Management, (March 1991), p. 4.

10. Appendix, Section 12111 (10).

11. Appendix, Section 12111 (9) (B).

12. ADA, Title III, Section 12182 (b) (1) (E).

13. Farrington, Brian, "American Disabilities Act," paper presented at 1991 CPE Exposition, Houston: December 10, 1991. Texas Society of Certified Public Accountants, CPE Foundation, Inc.

14. Martinez, Michelle Neely, "Creative Ways to Employ People with Disabilities," HRMagazine, (November 1990), pp. 40-45.

15. Fulco, Nancy, "Bill For Disabled Might Handicap Business," Employee Benefit Plan Review, (November 1989), pp. 50.

REFERENCES

Brown, Barbara Berish, "Washington Scene," Employment Relations Today, (Autumn 1990), pp. 243-248.

Farrington, Brian, "American Disabilities Act," paper presented at 1991 CPE Exposition, Houston: December 10, 1991. Texas Society of Certified Public Accountants, CPE Foundation, Inc.

Fulco, Nancy, "Bill for Disabled Might Handicap Business," Employee Benefit Plan Review, (November 1989), pp. 50-52.

Martinez, Michelle Neely, "Creative Ways to Employ People with Disabilities," HRMagazine, (November 1990), pp. 40-45.

Perkins, Nancy L., "What You Need to Know About the Americans With Disabilities Act," Supervisory Management, (March 1991), p. 4.

Drs. Hein and VanZante have published numerous articles and participate regularly in conferences and symposia.
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Author:Hein, Cheryl D.; VanZante, Neal R.
Publication:SAM Advanced Management Journal
Date:Jan 1, 1993
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