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Putting the ADA to work.

On the 26th of this month, the Equal Employment Opportunity Commission (EEOC) begins enforcing the employment provisions of the Americans With Disabilities Act. Many associations have organized conferences or provided information on the new law for their members. Associations are employers too, however, and should be paying attention to their own new obligations.

Under the Americans With Disabilities Act (ADA), it is illegal to discriminate against qualified individuals with disabilities. Employers have an obligation to make reasonable accommodations to the known physical or mental limitations of an individual with a disability unless the accommodation would impose an undue hardship. The law is not more specific about what constitutes reasonable accommodation than to say that undue hardship imposes "significant difficulty or expense." (See sidebar for how to obtain EEOC'S interpretive guidelines.)

The law applies now to employers with 25 or more employees. It phases in for employers with 15 or more employees in two years (on July 26, 1994); if you employ fewer than 15 people, you are not subject to the present law.

Here are 10 steps associations can take to ensure that they're ready for their new obligations.

1. Train your interviewers

It is critical that the person responsible for hiring in an association become familiar with how EEOC defines qualified individual with a disability: It is someone who, with or without reasonable accommodation, is able to perform the essential functions of the job.

While the ADA employment requirements will be felt most keenly by the association staffer primarily responsible for recruiting and interviewing applicants, remember they apply to anyone involved in the selection process. If candidates must go through a series of interviews with a variety of people, be sure everyone involved is familiar with the law.

For example, the ADA prohibits employers from asking a job applicant before making an offer whether he or she is an individual with a disability or about the nature or severity of a disability. Interviewers should be seeking information on a person's ability to perform the functions of the job, not asking questions like "What happened to your arm?" or "Have you ever had a back problem?' Other examples of prohibited interview questions are

* Please tell me any conditions or diseases for which you have been treated.

* Have you ever been hospitalized?

* Have you ever been treated for any mental condition?

* Do you have a history of alcohol or drug abuse?

* Do you have any disabilities or impairments that may affect your performance in this position?

* Have you ever filed for workers' compensation insurance?

* What's the prognosis or expectation regarding your condition or disability?

* Will you need treatment or special leave because of the disability?

On the other hand, interviewers may seek information regarding a person's ability to perform the essential functions of a job. These are examples of acceptable pre-employment inquiries:

* Based on the job description you have been provided or the one I have given, are you able to perform these tasks with or without an accommodation?

* How would you perform the tasks, and with what accommodation?

* Based on what you have been told regarding our work hours and leave policies, are you able to meet these requirements?

Interviewers also need training on subjects they should avoid during an interview. The law creates a cause of action for a person who believes he or she was discriminated against because of a known association with a person with a known disability. In other words, an applicant could complain that the real reason he or she was denied a position was that the employer knew the applicant had a child with Downs Syndrome and assumed the applicant would continually be called away from work to care for the child. To preclude such charges, interviewers should avoid discussing friends and family during the application process. This information has no bearing on a person's qualifications for a job anyway.

2. Sanitize applications and


Pre-employment inquiries about whether a person is disabled, during the interview or on an application form, are not permitted under the ADA. Review your applications to ensure questions like those above do not appear.

Keep in mind that after a conditional job offer, you may make inquiries or require a physical examination to get additional information you believe is relevant to the candidate's ability to perform a job (see 6, below).

3. Don't make medical


Don't reject an applicant with a readily apparent disability because you believe he or she is unable to do the job. The ADA requires a determination of whether the applicant is able to perform the "essential functions" of the job, and the applicant with a disability should be permitted to demonstrate or explain how he or she would perform those functions.

For example, if the applicant has a known disability - such as missing an arm - that would seem to limit his or her ability to perform an essential job function such as sorting mail, ask the applicant to explain or demonstrate how he or she would do it.

4. Revise job descriptions

As noted, a person with a disability is deemed to be qualified for a position if he or she is able to perform the "essential functions" of a job. Essential functions are those the individual must be able to perform unaided and with the assistance of reasonable accommodation. The definition does not include marginal functions of a position.

To determine whether a function is truly essential, EEOC will examine a number of factors, such as whether the position exists to perform that function; whether the function can be performed by a limited pool of employees; and whether the function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability. For evidence, the courts and EEOC will look at the employer's judgment; the amount of time spent performing the function; the consequences of not performing the function; the work experience of past incumbents; and the current work experience of incumbents in similar jobs.

Written job descriptions are one form of evidence of the essential functions of a job if prepared prior to the job advertisement or any interviews.

Take a careful look at your job descriptions and determine whether the descriptions include tasks that are essential to do the job or simply a laundry list of what an individual might be called upon to do. The job description should include the intellectual and physical - able to read and to shelve books in a library, for example - as well as qualitative and quantitative requirements. Note that the job requires typing and the number of words per minute, in other words.

Take care that job descriptions do not simply recount the abilities of a current incumbent; you might inadvertently exclude someone with a disability who could perform the job differently. For example, don't assume that the ability to see applicants is essential just because the person who currently conducts interviews can watch candidates' facial expressions. The job description shouldn't reflect a single way to do a job; the focus should be on what is to be accomplished, not how.

While an accurate, written job description can show what the employer judges to be the essential functions of the job, don't rely on that exclusively as a defense to a charge of employment discrimination based on disability. The requirements of any given job in most organizations are subject to ongoing change as work demands and skills of an incumbent vary. Consequently, it's often impossible to guarantee that a job description is current and accurate.

5. Review job standards

Ensure that association employment policies or job criteria that appear to be neutral do not have a disparate impact on individuals with disabilities. For example, while requiring that a mail room clerk have a high school diploma appears to be neutral, it could exclude people who have learning impairments, even though some may be able to perform the essential functions of the job. Only use job standards or criteria essential to the performance of the job in question.

6. Review medical exams

If you have been requiring a pre-employment physical, adjust its timing. The ADA only permits post-offer pre-employment medical examinations, and only if all individuals in the same job category are asked to undergo a physical. In other words, a job may be offered but made contingent on successful completion of a physical examination.

Of course, if the physical uncovers problems, the candidate can't be rejected unless the problem limits his or her ability to perform the essential functions of the job, with or without reasonable accommodation. You must be able to show EEOC that the reasons for withdrawing the offer are job-related and consistent with business necessity, or that the person is being excluded to avoid a "direct threat" to health or safety.

So, for example, if a back X-ray shows the applicant can't lift heavy objects, you may reject him or her if the job requires lifting and no reasonable accommodation is available. (Also note that while it's good human resource management to ensure limited disclosure of employee medical records, the ADA creates a legal obligation to do so.)

7. Revise drug testing

While the ADA does not limit an association's right to engage in pre-employment drug screening, you may no longer rule out an applicant because he or she has been through a drug rehabilitation program. You may want to amend your program to ensure that rehabilitated drug users remain rehabilitated by requiring periodic retesting.

8. Accommodate employees

returning to work

The ADA applies to your existing work force, too. A current employee returning to work from disability leave may need accommodation. Supervisors should be trained to understand the obligation to make reasonable accommodation. They cannot necessarily insist that a person returning from disability leave perform the job in exactly the same manner as before the onset of the disability. A person who answers phone calls, now hearing impaired, may need an amplifier installed in the handset. Someone diagnosed with cancer may need a more flexible schedule to accommodate chemotherapy. Let supervisors consider the range of possible accommodations they may need to create.

9. Be accessible

As an employer, the association has a responsibility to ensure that individuals with disabilities have access to its employment process. For example, if you advertise employment in a newspaper with only a phone number to contact, a person with a hearing impairment may not be able to respond.

A per-call solution is a telephone relay service from the telephone company: An operator acts acts translator by using both a TDD (telephonic device for the deaf) and voice. Or, for a few hundred dollars, the association may purchase a TDD. Certainly, listing a TDD number on marketing materials delivers better service and makes a better impression.

10. Check your contracts

Under the ADA, it's illegal for an association to enter into a contract or other arrangement or relationship that may subject employees or applicants to discrimination. Examples follow.

Employment agencies. Spell out in any agreement the association's expectation that the agency will not violate the terms of the ADA.

Meetings and conferences. Your members are bound by ADA provisions too, and are likely to seek assurances that any association-sponsored meeting or conference an employee attends is held in an accessible location.

In addition, the regulations provide that a public accommodation means "a private entity that ... leases ... a place of public accommodation." When an association leases a conference center or convention hall, for instance, the association becomes a public accommodation and must comply with the nondiscrimination provisions of the law applicable to public accommodations.

Review contracts with hotels and conference centers to ensure that the association has received a contractual commitment to provide a location accessible to people with disabilities and in compliance with the public accommodation requirements of the ADA. At the Society for Human Resource Management (SHRM), Alexandria, Virginia, we add one or both of these boilerplates to hotel contracts:

* The (name of facility) warrants that it is in compliance with the ADA, which requires public accommodations to be accessible to persons with disabilities.

* The (name of facility) agrees to indemnify SHRM in the event of any legal action or claim filed against SHRM alleging that the hotel facilities and/or services provided by the hotel were not in compliance with the ADA.

In conference marketing and registration materials, invite individuals with disabilities to inform the association if they need special accommodations. (The TDD would be useful here.)

Public facilities. Associations are required to comply with provisions of the ADA governing public accommodations (Title III) as commercial facilities. Your offices may be a "commercial facility" if members visit or you maintain a library open to the public. In addition to making your present space accessible, any new construction or major renovation undertaken by the association must be accessible to people with disabilities. Review leases to determine who is responsible for compliance with this provision, and include in any contracts for design or construction a commitment by the vendor that the work will comply with the provisions of the ADA.

For More Information

You have numerous resources for help accommodating the Americans With Disabilities Act. These are four places to start.

* The President's Committee on Employment of People With Disabilities, 1331 F St., N.W., Washington, DC 20004-1107; (202) 376-6200, voice; (202) 376-6205, TDD. The committee has information for employers that are seeking to provide employment opportunities for people with disabilities.

* Job Accommodation Network, West Virginia University, 809 Allen Hall, P.O. Box 6123, Morgantown, WV 26506; (800) 526-7234. JAN is a computer data bank of accommodations that have been made for thousands of different disabilities. It is a free service operated by the President's Committee on Employment of People With Disabilities. They ask that you share your accommodation experience to include in the growing data base.

* Equal Employment Opportunity Commission, 1801 L Street, N.W., Washington, DC 20507; (202) 663-4900, voice; (202) 663-4494, TDD; (800) 669-3362 (taped message). Contact for a free copy of EEOC regulations and interpretive guidelines for implementing ADA employment provisions.

* U.S. Department of Justice, Office on the Americans With Disabilities Act, Civil Rights Division, P.O. Box 66118, Washington, DC 20035-6118; (202) 514-0301, voice; (202) 514-0381 or 514-0383, TDD. Contact for copies of Department of Justice regulations implementing ADA Title III regarding nondiscrimination on the basis of disability by public accommodations and commercial facilities.

Additional resources for information and assistance include

* Alexander Graham Bell Association for the Deaf, 3417 Volta Pl., N.W., Washington, DC 20007; (202) 337-5220, voice and TDD.

* American Council of the Blind, 1155 15th St., N.W., Suite 720, Washington, DC 20005; (202) 467-5081, voice only.

* American Foundation for the Blind, 15 West 16th St., New York, NY 10011; (212) 620-2000, voice; (212) 620-2158, TDD.

* American Printing House for the Blind, 1839 Frankfort Ave., P.O. Box 6085, Louisville, KY 40206-0085; (502) 895-2405, voice only.

* Architectural and Transportation Barriers Compliance Board, 1331 F St., N.W., Suite 1000, Washington, DC 20004; (800) USA-ABLE, voice; (202) 272-5449, TDD.

* Association on Handicapped Student Service Programs in Post-secondary Education, P.O. Box 21192, Columbus, OH 43221; (614) 488-4972, voice and TDD.

* National Association of the Deaf, 814 Thayer Ave., Silver Spring, MD 20910-4500; (301) 587-1788, voice; (301) 587-1789, TDD.

* National Federation of the Blind, 1800 Johnson St., Baltimore, MD 21230; (301) 659-9314, voice only.

* Registry of Interpreters for the Deaf, 8719 Colesville Rd., Suite 310, Silver Spring, MD 20910; (301) 608-0050, voice and TDD.

* Self-Help for Hard of Hearing People, 7800 Wisconsin Ave., Bethesda, MD 20814; (301) 657-2248, voice; (301) 657-2249, TDD.

* Telecommunications for the Deaf, 8719 Colesville Rd., Rm. 300, Silver Spring, MD 20910; (301) 589-3786, voice; (301) 589-3006, TDD.

Susan Meisinger is vice president of government and public affairs at the Society for Human Resource Management, Alexandria, Virginia.
COPYRIGHT 1992 American Society of Association Executives
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Title Annotation:includes related article; Americans with Disabilities Act of 1990
Author:Meisinger, Susan
Publication:Association Management
Date:Jul 1, 1992
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