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The "Americans with Disabilites Act of 1990": bringing about change now and in the future.

The "Americans With Disabilities Act of 1990": Bringing About Change Now and in the Future

On July 26, 1990, President Bush signed the Americans With Disabilities Act of 1990 (ADA). The most important civil rights legislation in nearly 25 years, this new law will dramatically affect the employment practices and operations of most American businesses.

Many businesses are subject to state and local handicap discrimination laws. Some are also subject to the Rehabilitation Act of 1973. None of these laws is superseded by the ADA. Rather, the ADA adds a new layer of governmental regulation.

The employment provisions of the ADA become effective for almost all businesses with 25 or more employees on July 26, 1992. The ADA prohibits disability-based discrimination against qualified applicants and employees. The ADA's definition of "disability" includes physical or mental impairments which "substantially limit" one or more "major life activities," as well as a record of having such an impairment and being regarded as having such an impairment. The Act applies to persons with contagious diseases or infections, but permits employers to exclude any person whose condition poses a "direct threat to the health or safety of others" which "cannot be eliminated by reasonable accommodation." Under the ADA, homosexuality, sexual behavior disorders and a variety of psychiatric disorders are excluded from the definition of disability. Current users of illegal drugs are not protected from discrimination on the basis of such use. However, former drug users who have completed or who are participating in a supervised drug rehabilitation program are protected. Alcoholism is a disability under the ADA. The ADA prohibits discrimination only against disabled persons who are "otherwise qualified", i.e., those "who, with or without reasonable accommodation, can perform the essential functions" of the job held or sought. Congressional Committee Reports state that "essential functions" are tasks that are fundamental and not marginal aspects of a job. Whether a particular function is essential must be determined on a job-by-job basis. Under the ADA, "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." Though not determinative, job descriptions will play an important role in the defense of hiring and promotion claims.

Prohibited Conduct. The ADA broadly prohibits employers from discriminating against qualified individuals with disabilities with respect to any term, condition, or privilege of employment. Both disparities in treatment and conduct having an adverse impact on people with disabilities are prohibited.

Classification, Segregation, And Contracts. The ADA outlaws segregation of employees with disabilities into specific jobs, lines of progression, work areas, or activities. Additionally, employers are prohibited from "participating in any contractual or other relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to ... discrimation ...." This means, for example, that employers may not use employment agencies or collective bargaining agreements to bypass the Act's requirements. Employers are permitted to offer insurance policies containing pre-existing condition clauses or limiting the coverage available for certain procedures, but they may not refuse to insure disabled individuals or place limites on their coverage which are not applicable to other similarly situated employees.

Standards And Tests. Employers are prohibited from using "standards, criteria or methods of administration" that have the effect of discriminating against people with disabilities, unless the standard or test is shown to be job-related and consistent with business necessity, and no reasonable accommodation would enable the candidate to perform the essential functions of the job. Congressional Committee Reports cite a driver's license requirement as a simple example of a common selection device that has an adverse impact on many candidates with disabilities.

Association Discrimination. The ADA further prohibits employers from discriminating against people who are not disabled because they have a relationship with or associate with disabled persons. This provision prohibits employers from refusing to hire the spouse or parent of a disabled person because of fear that the applicant would frequently miss work to care for the spouse or child. Employers are not required, however, to accommodate non-disabled persons.

Failure To Make Reasonable Accommodations. The ADA broadly prohibits employers from failing to make "reasonable accommodations to the know physical or mental limitations of an otherwise qualified" applicant or employee with a disability, unless the employer can prove that the accommodation would impose an undue hardship on its operations. Reasonable accommodations may include: making existing facilities accessible; job restructuring; modified or part-time work schedules; reassignment to vacant positions; acquisition or modification of equipment or devices; modification of tests, training materials or policies; provision of qualified readers or interpreters; and other similar accommodations. The term "undue hardship" is defined as "an action requiring significant difficulty or expense." Whether a particular accommodation imposes an undue hardship depends on several factors, including: the nature and cost of the needed accomodation; the employee complement and financial resources of the facility; the size, financial resources and employee complement of the employer; the nature of the employer's operations and the rela-tionship between the facility and the employer; and the impact of the accommodation on the operations of the facility. Significantly, the criteria do not include the cost of the proposed accommodation relative to the compensation value of the job. Generally, the larger the employer and the workforce at a facility, the harder it will be to establish undue hardship.

Medical Examinations And Inquiries. Employers are prohibited from asking applicants or employees about the existence or nature of any disability, unless the response is voluntary and the inquiry is for the purpose of correcting the effects of past discrimination or of conditions that limited the employment opportunities of persons with disabilities or for the purpose of taking affirmative action. Employers are permitted to inquire regarding an applicant's or employee's ability to perform job-related functions. The ADA also prohibits employers from conducting pre-employment offer medical examinations. Employers may require post-offer medical examinations, and condition employment on the results, where: (1) all employees entering the job are required to take the examination; (2) the results are kept confidential; and (3) the results are not used to screen out persons with disabilities unless they are not able to perform the essential job functions safely, even with a reasonable accommodation. Post-employment medical examinations are similarly restricted by the ADA, except as "part of an employee health program," such as a wellness program.

Permitted Actions. The ADA permits management to: prohibit employees from using or being under the influence of drugs or alcohol in the workplace; require employees to comply with the Drug-Free Workplace Act of 1988; hold alcoholics and drug users to the same standards of performance and behavior as other employees; require compliance with Department of Defense, Department of Transportation and Nuclear Regulatory Commission regulations on illegal drugs and alcohol by employees subject to such regulations; require applicants and employees to take drug tests, whether the tests are job related or not; and establish, sponsor and administer bona fide employee benefit plans based on underwriting, classifying or administering risks in accordance with law so long as the intent is not to evade the purpose of the ADA.

Enforcement. The ADA will be enforced by the Equal Employment Opportunity Commission in accordance with the procedures and remedial provisions of Title VII.

Recommendations. Management should begin preparing now to comply with the ADA. The following actions are recommended:

* Eliminate disability-related inquiries from application forms and interview checklists.

* Consider the need to read application and test questions aloud to candidates with reading-related or dexterity impairments, as well as the need for sign lan-guage interpreters to assist in testing or interviews.

* Review employee benefit plans and insurance policies for compliance with the ADA.

* Renegotiate provisions of collective bargaining agreements which incorporate discriminatory standards or limit management's ability to accommodate workers with disabilities.

* Determine whether modifications of physical facilities are necessary.

* Educate managers and personnel officers about the requirements of the law.

* Revise job descriptions to reflect the actual job requirements.

* Become familiar with sources of accommodation assistance.

* Require review by senior management of decisions affecting applicants and employees with disabilities.

* Disseminate a policy statement affirming management's commitment to hiring and accommodating qualified people with disabilities. By taking action now, management can avoid disruptions to operations when the ADA becomes effective and substantially reduce the risk of violating the ADA and state and local handicap discrimination laws.

Accessibility Issues. The ADA imposes a range of requirements on businesses that provide services to the general public. Congress designed these requirements in an attempt to afford individuals with disabilities opportunities for "full and equal enjoyment" of services provided by businesses by making these services accessible. Generally, accessibility requirements set forth in the ADA apply only to businesses that provide services directly to the general public. However, certain construction and renovation requirements potentially apply to all commercial facilities. In short, any business that plans to build or renovate a manufacturing plant, a warehouse, showroom, office building, store or other commercial facility will be required to meet physical access requirements of ADA.

New Construction. The ADA requires that commercial facilities designed and constructed for first occupancy after January 26, 1993, be "readily accessible to" and "usable by" individuals with disabilities. The Architectural and Transportation Barriers Compliance Board (the Board) will issue regulations to assist in determining what constitutes facilities that are "readily accessible to" and "usable by" individuals with disabilities. The Board's regulations will address issues such as accessibility of entrances, corridors, floors, ramps, elevators, lifts, stairways, and stairway landings.

While physical access requirements promulgated pursuant to the Rehabilitation Act of 1973 focused upon accessibility for persons confined to wheelchairs, it is important to note that the Board's regulations implementing ADA will address accessibility for a much broader range of individuals. For example, the Board will consider the needs of persons with visual impairments and hearing impairments in addition to the needs of individuals with mobility impairments.

Exceptions. The ADA would relieve a business of its obligation to meet accessible requirements set forth in the board's regulations to the extent the business shows that meeting the requirement or requirements in question is "strongly impractical."

In addition, no business will be required to install an elevator in a newly constructed building of fewer than three stories and with less than 3,000 square feet per story unless the building is a shopping mall, shopping center, or the professional office of a health care provider, or the Attorney General requires elevators in the type of building based on the usage of the building.

Renovations. If a business alters all of part of a facility in a way that affects or could affect usability of the facility or part of the facility, the ADA requires that the renovated portions of the facility be "readily accessible to" and "usable by" persons with disabilities to the "maximum extent feasible." The ADA places particular emphasis on access to bathrooms, telephones, and drinking fountains serving the renovated area.

Exceptions. A business that undertakes a renovation (an overall alteration) is not required to alter paths of travel to bathrooms, telephones, and drinking fountains so as to make those paths readily accessible if the business can demonstrate that the alterations of paths of travel would be disproportionate to the "overall alterations in terms of cost and scope."

As is the case in new construction, there is no requirements to install elevators in buildings of fewer than three stories and less than 3,000 square feet per story unless required as explained under the new construction section.

Enforcement. The physical access provisions of the ADA may be enforced either by private civil suit or by the U.S. Attorney General. The act specifically authorizes injunctive relief in cases involving physical access. In actions instituted by the Attorney General, courts may assess civil penalties of up to $50,000 for a first violation and $100,000 for subsequent violations. The ADA also authorizes the award of attorneys' fees to prevailing parties.

Effective Dates. By tying the new construction provisions to design and construction of buildings first occupied after January 26, 1993, the ADA has provided an indefinite effective date for new construction. Any building designed today for occupancy after January 26, 1993, would have to comply with the new provisions.
COPYRIGHT 1991 Institute of Industrial Engineers, Inc. (IIE)
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

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Author:Candris, Laura A.; Anderson, Anthony A.
Publication:Industrial Management
Date:May 1, 1991
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