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Preparing for ADA Title I.

By now, everyone in real estate has heard of the Americans with Disabilities Act, or ADA. In January 1992, Title III of ADA required the removal of physical barriers that prevented the disabled from accessing public accommodations.

On July 26, ADA Title I became another leap forward for people with disabilities by mandating equal employment opportunity. Title I prohibits discrimination against people with disabilities in hiring and employment and requires employers to accommodate qualified job candidates or employees who happen to have a disability.

This requirement means that employers must evaluate job candidates only on the basis of whether or not they can perform the essential functions of a job, as defined by the tasks actually necessary to do the job and actually performed in the workplace. The same goes for evaluating the performance of current employees for promotion, compensation, and other conditions or privileges of employment.

It also means that while employers do not have to lower performance standards for any job, they must make reasonable accommodations for people with disabilities, such as altering office facilities for accessibility or modifying equipment, schedules, or policies.

An accommodation for a disabled employee might be as simple as a volume amplifier added to a telephone for someone with a hearing impairment or computer software that enlarges the print on the screen for someone with a visual impairment. The ADA does not require accommodations that present "undue hardship" to the employer or that result in significant expense in light of resources.

Title I became effective July 26, 1992, for employers with 25 or more employee, and will become effective on July 26, 1994, for employers with 15 to 24 employees. The Equal Employment Opportunity Commission (EEOC) will handle complaints; remedies are the same as those under Title VII of the Civil Rights Act of 1964. The same procedures now applicable to discrimination cases on the basis of race, sex, national origin, and religion will apply.

What constitutes a disability

Individuals in the United States with some kind of disability, as defined in the legislation, currently number an estimated 43 million people. The ADA defines disabilities as physical or mental impairments that substantially limit a major life activity (such as walking, seeing, hearing, or manual dexterity); a history of an impairment that limits a major life activity; or the perception that someone has such an impairment.

Examples of specific conditions that are disabilities include cerebral palsy, epilepsy, or arthritis; diseases such as heart disease, cancer, AIDS, or infection with the HIV virus; mental impairments or learning disorders such as dyslexia; emotional or mental illness; the completion of or participation in a drug treatment program; nicotine withdrawal; significant disfigurement; and sleep disorders.

Obviously, almost everyone, at some point in life, will fall into one of these categories, whether they break a leg or simply develop arthritis or cataracts as they grow older. Many disabilities are largely unnoticeable to anyone except the person with the disability.

To comply with the law and implement nondiscriminatory hiring and employment practices, your firm will probably need to change some of its current policies. Many common hiring and employment practices, such as questions about a job applicant's health or tests that are not job related and tend to screen people out of jobs, are discriminatory, and thus illegal. Some of the major steps you should take are outlined below.

Defining essential job functions

The ADA prohibits employment discrimination against "a qualified individual with a disability." The statute goes on to define the term "qualified" as someone who can, with or without reasonable accommodations, perform the essential functions of the employment position.

The determination of what is an essential job function depends partly on the employer's judgement, with statements in written job descriptions and advertisements considered to be evidence of that judgment. It also depends on the business necessity of the task, its importance, and how much time employees spend doing it.

Paul Scher, CRC, rehabilitation services consultant at Sears, states that essential job functions, as defined by the law, are "the functions that are really important to doing the job, as opposed to marginal functions, which may not be important. If a person is there to do that specific job and you can't substitute someone else to do it, that is an example of an essential job function.

Functions that are performed only on occasion are usually not essential functions; if there are other people in the work place who could perform the occasional task, it is definitely not an essential job function.

In the regulations published by the EEOC, seven items constitute evidence of the essential functions of a job: the employer's judgment, the job description, the amount of time spent performing the job function, the consequences of not requiring the incumbent to perform the function, the terms of a collective bargaining agreement, the work experience of past incumbents in the job, and/or the current work experience of incumbents in similar jobs.

Richard Block, attorney at Stroock & Stroock & Lavan, cites an example of the importance of a job function as a determinant of whether or not it is essential: "Firefighters may have to carry something or someone heavy out of a building to rescue them from flames. They may spend only 1 percent of their time performing that job, but it is still an essential function to be able to lift that kind of weight because it's important; it could save a life."

While the evidence provided by a job description is of prime importance, so is the evidence provided by activities at the work site. Gregory Schroedter, attorney at Bell Boyd & Lloyd, explains: "If people currently performing the job do not in fact perform the function, or perform it very infrequently, then when the EEOC takes a look at the actual work that's being performed, that's going to be more relevant than the job description."

For this reason, the first step in complying with Title 1 of the ADA is to evaluate positions and rewrite job descriptions not only to correct any illegal or discriminatory statements, but also to ensure that the descriptions accurately reflect the work that is required and why it is important.

"Many companies have job descriptions that were written ten years ago," says Block, "and those jobs have fundamentally changed, because of automation or other reasons, so that they don't accurately reflect what the job is."

In addition to reviewing job descriptions, he also recommends that you review job ads and delete references to non-essential job functions. If someone states that they did not apply for a job because they could not perform one of the tasks listed and the EEOC determines that this is a non-essential job function, you have discriminated against that person by discouraging him or her from applying. "The ad really has to list only the essential job functions," cautions Block.

The job description, however, should list both the essential and non-essential functions and categorize them as such. Many employers include a phrase such as "other duties as required" so that employees cannot refuse to perform certain tasks when requested to do so. But this phrase, notes Schroedter, should be placed clearly in the category of non-essential functions.

Shelley Sandow, director of programs at Access Living, a social service agency that is a Center for Independent Living in Illinois, provides an example: "In a social service agency like ours, it is common to ask all employees to share the duties of making coffee and keeping the kitchen clean. But we could not refuse to hire someone because they could not perform those duties."

She adds that disqualifying someone because they could not drive, when driving is only needed once or twice a year, also is discriminatory. Driving, in this case, would clearly represent a non-essential job function.

To define the essential job functions in the job description, Schroedter recommends focusing on the purpose of the function identified, rather than the manner in which the task is performed. "The ability to lift 100 pounds would be a description of the manner; the purpose might be, 'must be able to transfer 100 pounds from point A to point B.' That's how you would put it down in an actual job description."

Another example is the ability to access, retrieve, and input information in a data processing system; a job description should not state that it is necessary for someone to enter the information manually or read the information visually, only that the information be entered and read. Adaptive devices allow people with visual or manual impairments to perform the same functions without the use of their eyes or hands.

Scher concurs about the need to focus on goals rather than methods: "The EEOC is not going to try to second-guess the employer; if you have a description you issued before you advertised the position, they will assume that those functions are essential. But if it's contested, they're going to ask, 'Why is the work done? Could it be done in any other way? Is there anyone else around here who could perform these two functions?'"

Descriptions such as "the ability to change the washers in a faucet" or "the ability to master the information obtained in technical manuals," on the other hand, would meet the requirements of the ADA because these descriptions talk about purpose rather than method.

A person with a visual impairment might listen to an audio recording of the information in the manual, for example, rather than read the printed pages. Similarly, someone could conceivably change the washers in a faucet without sight or hearing or with a special tool, if necessary. As long as the individual accomplishes the goal, the method does not matter.

Scher also cautions against stating specific educational requirements for a job, unless such requirements are mandated by law. He suggests that it is often better to state "knowledge of" and list the subjects requiring expertise. You might get into trouble turning someone down for a job simply because they do not have a high school diploma, for example, when they have received all the training and knowledge required in some other way.

Also, for a job such as sweeping floors, you should not make high school or other degrees mandatory. "This effectively screens people out," states Scher. "Some disabled people never got to school because they were somewhat closeted all their lives."

Allene Alexander of Grubb & Ellis in San Francisco cautions property managers to include all of the essential functions in the job description. She cites a situation in which a company needed a receptionist who could not only answer the phone and take messages, but also keep a careful guard of who went in and out of the two lobby doors to the reception area.

Schroedter offers a word of advice on the language you would use to describe this function: "You should use the words 'monitor the doors' rather than 'visually check the doors,' because one way a visually impaired person could perform this task would be to use an electronic eye and a sound system." Excluding someone who could actually perform the essential functions of a job with a reasonable accommodation, such as readily available device, would constitute a discriminatory practice.

John N. Gallagher, CPM,[R] of Shannon & Luchs Company in Bethesda, Maryland, says that his company has made some changes to comply with Title I of the ADA. Where job descriptions only listed broad responsibilities in the past, they now list specific requirements. "Where we used to say, 'responsible for plumbing maintenance,'" states Gallagher, "now we say, 'responsible for changing faucet washers, bow rings, and so on.'"

Similarly, a job description for a resident manager would state that the manager must spend a specified number of hours on the property and must inspect its cleanliness and safety thoroughly on a specified schedule.

In addition to reviewing jobs ads and job descriptions, employers should review employment applications for possible discriminatory statements. "Managers should review their employment application forms and any other hiring material," advises Block. "Most application forms ask, 'Do you have an impairment that would prevent you from performing job functions?' Get that off."

Questions now expressly prohibited by the EEOC, and to be deleted from applications and clearly avoided in interviews, include any questions involving mental or physical health or disability.

Interviewing and evaluating candidates

According to many attorneys, violations of the ADA that occur during the interview process will probably be the most frequent cause of lawsuits. Many of the questions you cannot legally ask are listed in Figure 1.

The questions you can ask include those about past job experience and about the candidate's ability to perform specific job functions.

You cannot bring up someone's apparent disability unless that person talks about it first. For example, if someone is blind and applies for the position of switchboard operator, you would not say to them, "You're blind; how are you going to do this job?" But according to Rosa Villarreal, director of support systems at Access Living, you could say, "This is how the system works; it involves flashing lights; how would you handle it?"

According to Scher, a question such as, "Are you able to lift a 30-pound box from the floor of a truck, carry it to a stack of shelves six feet high, and place the box on the top shelf?" would also be appropriate (assuming this is an essential function of the job for which the individual is applying).

It is also acceptable to attach the job description, with the list of essential job functions, to the application, and ask the candidate if he or she can perform those functions. If the candidate says "no" to any one of them, he or she might very well know of an accommodation that would allow them to perform the task.

If the candidate mentions that he or she cannot perform a specific function because of a disability, you should ask, "Is there any accommodation we might be able to make that would be reasonable?" Using the example above, Scher suggests that the candidate might very well say, "I did this for XYZ Company for two years using a portable jack that I was able to wheel wherever I needed, and then lift the weight to the height of the jack platform and place it on the shelf." The candidate might even own the equipment necessary to perform the job.

Sandow adds that the candidate may know more than the interviewer about a possible accommodation. And if an interviewer rejects someone for a job position because the interviewer does not know about an available accommodation, the company could be liable. On the other hand, it is up to the job candidate to inform the interviewer of any disability. The interviewer is not liable if he or she had no knowledge that a disability exists.

"Consider the case of someone with a hearing impairment who applied for a position as a receptionist," says Sandow. "If they did not get a call back and had reason to think it was only because of the impairment, but they did the same job for ten years using a volume amplifier at another company, they might want to pursue some remedies."

Questions about a candidate's expertise and experience are also acceptable. For a leasing agent's position, for example, you might ask, "Explain your closing ratio over the past five years," or "Explain your cold call techniques to me"

It is also acceptable to ask a candidate to demonstrate that they can perform a task, as long as you ask all candidates to do so. For example, there is nothing wrong with a typing test for a clerical position as long as everyone applying for the job has to take it--and as long as typing is an essential job function.

But keep in mind that you may need to provide appropriate accommodations for people with disabilities when they take tests. For example, a test with small print would tend to screen out candidates with visual impairments, unless that test were also provided in large print or on a recording, when necessary.

In most cases, a description of the process by which the candidate would perform a task, rather than an explicit demonstration, will be sufficient. States Gallagher: "If we were talking about the position of a general maintenance manager, I would not have candidates demonstrate specific functions. However, if we were talking about operating large pieces of mechanical equipment such as boilers and chillers, I would ask the chief engineer to test the kills of all the job candidates as part of the interview process."

Finally, you should make sure that all interviewers not only know how to ask non-discriminatory questions, but that they also have awareness and sensitivity in interviewing people who are disabled.

Myrna Cohen, a CPM in Milwaukee who uses a wheelchair, stresses that you should not make assumptions about the kinds of assistance a person with a disability might need. For example, if you know that the person has a specific disability (such as a hearing impairment) and might need an accommodation (such as an interpreter), you should be comfortable asking questions such as, "How can I help you to make our meeting more productive?" But because many people who have hearing impairments do not need the services of an interpreter, you should not just assume that the job candidate will need one.

Scher cautions people not to get involved in personal discussions about disabilities. "I wouldn't go around telling people, 'If I were in your shoes...' or 'I think you do so wonderfully,'" he says. Not only is this inappropriate, but you might actually give someone the impression that they are qualified for a job when you have not actually determined that this is the case.

Finally, the question, "May I be of assistance?" is probably appropriate with any disability. The individual then has the option of saying "No, thank you," or specifying a specific need, such as help turning a wheelchair.

Making accommodations

The final step in complying with Title I of the ADA is to make specific accommodations for job candidates who are qualified for employment positions.

Examples of the types of accommodations envisioned by the EEOC include: making facilities accessible and usable; job restructuring; modifying work schedules; instituting flexible leave policies; reassigning workers to a vacant position; acquiring or modifying equipment and devices; adjusting and modifying examinations, training materials, and policies; providing qualified readers; and providing qualified interpreters.

Block adds that the only two reasons for not providing an accommodation for a qualified candidate would be that there is no reasonable accommodation that will allow the individual to perform the job or that the employer would undergo undue hardship. The case-by-case determination of undue hardship will depend on the nature and cost of the modification, but only after tax deductions and the possibilities of outside funding are taken into consideration.

Most accommodations for people with disabilities are not expensive--and many people with disabilities do not actually need accommodations. Scher reports that at Sears he conducted a company-wide survey from 1987 to 1992 in which he found that 56 percent of the employees who stated they had a disability did not require any accommodation. For the 44 percent who did need some kind of accommodation, the average cost was $385.

Cohen, a shopping center leasing agent with 20 years of professional experience, describes the accommodations she would need to be a leasing agent who uses a wheelchair. "Because I am able to go to different projects," she says, "the only thing I might need would be someone to push the wheelchair."

She also describes how she was able to do leasing even when she was confined to her home: "I didn't want to lose touch with the community. It was a profession I loved. I remember getting on the telephone and saying, 'I don't know how long I will not be able to leave my home, but I can still use the telephone and I have lots of time during the day'. Some people were very responsive and brought over leasing plans and said, 'Go lease it.' I was probably even more enthusiastic and effective because I didn't have a lot of other distractions."

Scher describes an accommodation that works well for workers with learning disabilities or limited learning capacities in maintenance or janitorial positions at the company. "I've had several telephone calls from across the country in which people say they just can't spend all their time supervising Mary or George or whomever. Maybe the employee will do one task, but then they just stand there rather than going on to the next task."

The accommodation he recommends is tape-recording the day's work instructions. Every time the employee finishes a task, they turn on the recorder and follow the instructions. "And yes," says Scher, "they do the job."

Other accommodations might involve a change of schedule or a change of position. If someone has experienced emotional illness, they might need to avoid stressful situations. They might very well be happy to change from a commission sales or leasing position to an in-house position involving less tension.

"If there's a medical reason for their being unable to do their job and they know a lot about the company, it's probably worth finding out if there's something they can do where they can use their experience," Scher explains.

Villarreal describes an accommodation at the agency that involved job restructuring. Under a government contract the agency has for the position of case counselor, the employee holding the position must go to see clients in their homes. But the directors of the program also felt it was important to have disabled people in the position to provide peer support for the clients, who are also disabled.

Even though some of the requirements of the job involved entering non-elevator buildings and driving all over the city, the agency was able to hire a person who uses a wheelchair. This employee does all in-house work required, such as phone contact, referrals, and maintaining records, while other counselors conduct the on-site visits for that employee's contract.

Accommodations involving flexible scheduling might be necessary for someone who is a recovering alcoholic. "The ADA specifically allows you to make sure that a work place is free from illegal use of drugs and use of alcohol at work," Block says. "However, a person who is an alcoholic would be a person with a disability under the ADA. A rehabilitated drug addict would be an individual with a disability."

There is no set rule, he states, about what a reasonable accommodation for such an employee would be, but altering a work schedule so that the individual could attend treatment sessions might be an example. Also, any employee should be required to meet the same standards of performance required of all other employees.

Finally, for a good resource on accommodations that meet the needs of specific disabilities, contact the Job Accommodation Network, P.O. Box 6123, 809 Allen Hall, WVU, Morgantown, WV 26506-6123; (800) 232-9675. The Network will tell you what equipment people use with different disabilities to do work that is comparable to the position you describe. If the accommodation is available commercially, they can also provide cost information.

Also contact your state Department of Rehabilitation or Center for Independent Living. These agencies provide excellent information at little or no cost.


Title I of the ADA took effect July 26, 1992, for employers with 25 or more employees. This means that pre-employment questions about health or disability are illegal. Other illegal actions include rejecting job applicants because of the need to provide a reasonable accommodation that would allow them to do jobs for which they are qualified. If you do not know about reasonable accommodations for specific disabilities, you should definitely find out.

Obviously, the rules of the employment game have changed significantly. To find out how to play fairly--and not be disqualified for making moves you thought were sanctioned by the rulemakers--you should definitely know as much as you can about the provisions of Title I of the Americans with Disabilities Act.

[Dorothy Walton is a freelance writer based in Chicago. She was previously a developmental book editor for the Institute of Real Estate Management. She has also designed and taught courses in English as a Foreign Language in Madrid.]
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Title Annotation:Americans with Disabilities Act of 1990
Author:Walton, Dorothy
Publication:Journal of Property Management
Date:Sep 1, 1992
Previous Article:Exploring new sources of business.
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