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Understanding the ADA.

Understanding the ADA

The Americans With Disabilities Act (ADA) - the most significant federal civil rights legislation affecting private employers since the passage of Title VII of the Civil Rights Act of 1964 - was signed by President Bush July 26, 1990. For employers with 25 or more employees, the ADA will take effect July 26, 1992; for employers with 15-24 employees, July 26, 1994.

In simplest terms, the ADA will prohibit discrimination - in employment and in access to public services - based upon disability, much as Title VII forbids discrimination based upon race, color, religion, sex, and national origin. While state and local statutes in most jurisdictions already protect disabled individuals against such discrimination, passage of the ADA will undoubtedly focus much greater attention on workers and job applicants who have physical or mental disabilities. Therefore, it is important for employers to understand the law and all of its ramifications.

ADA regulations will require employers of 15 or more individuals to eliminate existing barriers that keep those with disabilities from taking on positions for which they are qualified. In an age in which skilled and dependable employees are increasingly difficult to find, the ADA alerts employers to highly qualified workers, and it promotes those individuals' entry into jobs for which they are well-suited.

In this first of three related articles, we offer questions and answers about the ADA. Two subsequent articles look into removing behavioral barriers and removing physical barriers.

Facts about the ADA

Does the ADA apply to you? What do you need to do in your workplace to comply? And when do you need to do it? Here are the basics:

Who is an "employer" under the ADA?

An employer is an entity with 15 or more employees for each working day in each of 20 or more calendar weeks for at least 20 hours per week in the preceding or current calendar year. An association's subsidiary with fewer than 15 employees may be exempt if the subsidiary is treated as a separate employer for other purposes (e.g., federal and state tax withholding, unemployment, and workers' compensation).

Who is considered a "disabled" person under the ADA?

As defined in the law, a person with a disability is one who (a) has a physical or mental impairment that substantially limits one or more of the individual's major life activities; (b) has a record of such an impairment; or (c) is regarded as having such an impairment. For example, a person who currently has heart disease might qualify under subsection (a), because heart disease can substantially limit a major life activity, such as moving or breathing. A person who once had heart disease but no longer does might fall under subsection (b). And a person who is perceived by himself or herself and others as having heart disease would be protected under subsection (c). That perception - actually, that misperception - might take either of two forms. It might be a misperception that someone has heart disease, when in fact the person does not. Or it might be a misperception that a person's heart disease substantially limits activity, when in fact the disease might not create such a limitation.

The definition of disability is, in our view, the single most important concept under the ADA. Employers often have their own definition of disability. However, the term is broadly applied under the ADA, and if employers are not aware of the act's definitions, they are more likely to inadvertently discriminate.

What constitutes an "impairment"?

Although there is no comprehensive list of impairments, familiar examples include speech and hearing defects, cerebral palsy, muscular dystrophy, multiple sclerosis, HIV positivity, AIDS, cancer, heart disease, diabetes, mental retardation, and emotional illness.

Expressly excluded are homosexuality, bisexuality, pedophilia, kleptomania, and transvestism.

What does the ADA prohibit?

The ADA prohibits discrimination, an act negatively affecting a term or condition of employment, * against a qualified individual with a disability (the disabled person must be able to perform the job); * because of the disability (the discriminatory conduct is aimed at the disability); * against someone who can perform the essential functions of the job (as opposed to marginal aspects of the job); and * with or without reasonable accommodation (a disabled person who requires a reasonable accommodation to perform a job is qualified for that job).

What does the ADA require an employer to do for a disabled employee or applicant?

The ADA will require private employers to make "reasonable accommodations" to the known physical or mental limitations of a qualified applicant or employee unless the employer can demonstrate that the accommodation would impose an "undue hardship" on the employer's business.

What are some examples of "reasonable accommodations"?

Reasonable accommodations may include * making existing facilities used by employees readily accessible to and usable by the disabled (for example, widening access areas or providing ramps and handrails); * restructuring or modifying jobs or work schedules (for example, modifying or eliminating nonessential job functions); * acquiring or modifying equipment for the disabled, such as telephone headset amplifiers or talking calculators; and * providing qualified readers or interpreters.

Are all employers required to make all of these accommodations?

No. Under the ADA, an association or a company must determine what a reasonable accommodation is, based upon the particular circumstances of its own business and of the person with a disability. No accommodation is required if it would imposed an undue hardship upon the employer.

What constitutes an "undue hardship"?

Generally, an accommodation will be deemed an undue hardship if it imposes significant difficulty or expense for the business. Undue hardship also will be determined on a case-by-case basis. Factors to be considered include * the size of the business; * the nature and cost of the accommodation; and * the type of operations maintained by the employer.

Thus, some kinds of equipment or structural alterations that might be required of a large employer would constitute an undue hardship upon a 15-employee organization.

Can employers require job applicants and incoming employees to submit to a medical examination?

Yes, but only if all applicants and new employees are required to be examined, regardless of disability, and if the results of the examination are kept confidential. Employers can make pre-employment inquiries to determine if an applicant can perform job-related functions. The restrictions on medical examinations do not apply to drug testing.

Are current illegal drug users considered disabled under the ADA?

No. But a person who is participating in or has completed a supervised drug rehabilitation program and is no longer using illegal drugs is considered disabled.

How does an applicant or employee file suit under the ADA?

A person with a complaint must file it with the Equal Employment Opportunity Commission, Washington, D.C., which investigates it and issues a recommendation about further legal action.

What types of damages can be awarded against an employer under the ADA?

The ADA, like Title VII, entitles prevailing employees to recover back pay and attorney's fees as well as reinstatement. Punitive damages are not available under the ADA. However, should a new Civil Rights Act pass that grants punitive damage availability, people with disabilities may sue for them under its protection.

What nonemployment matters are addressed by the ADA?

The ADA also prohibits discrimination against people with disabilities in public accommodations and public transit. For example: * Public accommodations, including restaurants, hotels, and theaters, cannot refuse to serve people with disabilities. * Public accommodations must remove barriers at existing facilities if such removal can be done without significant difficulty or expense. * Subway and commuter rail systems purchasing new vehicles must buy vehicles that are accessible to people with disabilities.

Preparing for the ADA

Although the requirements of the ADA will not take effect for two (or, for smaller employers, four) years, employers should begin thinking about how their policies and practices may need to be modified. You should consider. * tailoring job descriptions to essential functions of the job, not attributes of the people you think could perform the job (a job description that refers unnecessarily to physical attributes likely will be plaintiff's Exhibit A against you in court); * documenting carefully your nondiscriminatory bases for personnel decisions that negatively affect employees and applicants with disabilities; * asking employees and applicants with disabilities for their ideas about reasonable accommodations; and * defining what accommodations are reasonable, under the law's definition, for your association. A judge or jury will be more sympathetic to an employer who has attempted to define reasonable accommodations for itself than to an employer who passively protests that the concept is vague.

For most employers, the ADA will not create significant costs, and under its auspices employers may find themselves looking closer at valuable members of today's work force: individuals with disabilities.
COPYRIGHT 1991 American Society of Association Executives
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Article Details
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Title Annotation:Americans with Disabilities Act
Author:Schuster, Eric S.
Publication:Association Management
Date:Apr 1, 1991
Previous Article:Frank talk.
Next Article:The deed makes the difference: when people possess the skills you want, accommodating their needs is a smart investment.

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