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The Americans with Disabilities Act.

A Practical Guide for Police Departments

The Americans with Disabilities Act (ADA) [1] is a difficult statute to understand and implement in the workplace. The statutory definition of a disability is confusing and subject to infinite variations. Determining who is disabled, and therefore, protected by the act, is difficult at best. Defining what is or is not a reasonable accommodation for employees' disabilities is extremely difficult. To make matters worse, the Equal Employment Opportunities Commission (EEOC), the agency charged with enforcing the ADA, and the courts often disagree on the statute's meaning.

This article will focus on providing practical advice to police administrators regarding the ADA's impact on departmental operations. It will discuss how the ADA impacts police hiring practices and day-to-day operations when departments are faced with disabled applicants and employees. Specifically, it will provide guidance regarding the questions that may be asked of applicants and employees, what tests may be administered at the various stages of the employment process, and what reasonable accommodations should be made for applicants' and employees' disabilities.

THE ADA PHILOSOPHY AND PRACTICAL REALITIES

The purpose of the ADA is to ensure that Americans with disabilities are given equal employment opportunities and equal access to all the benefits of the workplace. In short, the statute aims to ensure that employers judge the disabled on their abilities, rather than their disabilities. To accomplish that laudable goal, the ADA divides the employment process into three distinct stages: the application/interview stage; the postconditional offer stage; and the working stage. At all of these stages, the statute attempts to strike a balance between the interest of the disabled in being judged fairly and the interest of employers in finding the most qualified workers and running an efficient enterprise. At the application/interview stage, the interest of the disabled clearly wins, because employers are severely limited in their prerogatives. At the postconditional offer stage, employers' interests are paramount, because there are few restrictions imposed by the statute on employers. During the working stage, a de licate balance is struck between the interests of disabled workers and the employers. Overlaying all of the employment stages is the employers' reasonable accommodation obligation.

The ADA has practical implications in three major areas. The first area is in the nature of "disability-related inquiries" employers may make at the different employment stages. The second area is what kind of "medical examinations" employers may conduct at the various stages. The last area is the kind of "reasonable accommodations" employers are required to make at all stages.

DEFINITIONS

"Disability-related inquiry," "medical examination," and "reasonable accommodation" are terms of art under the ADA. Understanding how the ADA defines these terms is key to understanding what restrictions the ADA places on police managers.

Disability-related Inquiry

The EEOC defines a disability-related inquiry as a question or series of questions likely to elicit information about a disability. [2] A disability is any physical or mental impairment that substantially limits a major life activity, having a record of such an impairment, or being regarded as having such an impairment. [3] Disability-related inquiries include not only questions likely to elicit information regarding the existence of a disability, but also information regarding the nature of a disability and its severity. The definition includes employers' questions asked directly to applicants and employees, as well as inquiries directed to third parties and surreptitious searches for information. [4]

Medical Examinations

The EEOC defines medical examinations as procedures or tests that seek information about individuals' physical or mental impairments or health. [5] It is not always clear whether an examination or test is medical for purposes of the ADA. The EEOC suggests the following guidelines: [6]

* If the examination or test is administered or interpreted by health care professionals, it is likely to be considered medical in nature.

* If the examination or test is normally given in a medical setting or is administered using medical equipment, or is invasive, it is likely a medical examination.

* If the employer is trying to determine the nature or extent of applicants' or employees' disabilities, or the test or examination is designed to reveal impairments or disabilities, it is likely a medical test.

* If the examination or test measures individuals' responses to performing tasks, rather than simply their ability to perform tasks, it is likely to be considered medical.

Reasonable Accommodation

Reasonable accommodation is a change in the workplace environment or in the way of doing business that permits the disabled to enjoy equal employment opportunities and benefits. [7] The disabled have a fundamental statutory right to have their disabilities accommodated unless it would create an undue hardship on the employers or they pose a direct threat. [8] Employers' duty to accommodate the disabled extends to all facets of the employment relationship, from the hiring process to termination, and includes not only employment opportunities, but also access to job benefits. [9]

PRACTICAL CONSIDERATIONS FOR POLICE MANAGERS

The complexity of the ADA makes it a difficult statute for the police manager to apply to the workplace. However, the requirements of the ADA become less overwhelming when they are considered in terms of the stages of the employment relationship: the application/interview stage; the postconditional offer stage; and the working stage. The following discussion will set out in broad terms ADA "dos and don'ts" for police managers during these three stages. [10] It will explore what inquires and examinations are permissible and what reasonable accommodations may be appropriate at each stage.

The Application/Interview Stage: Disability-related Inquiries

The impact of the ADA begins with employers' decisions to fill a vacancy. Congress found that many applicants with disabilities were being denied employment based upon "stereotypic assumptions not truly indicative of the individual ability" of disabled persons. [11] To avoid the danger of stereotypic thinking, Congress, through the ADA, limits the application/interview process to exploration of only nondisability qualifications of applicants. The practical impact of this limitation has been great.

Employers must consider all potential applicants equally, including those with disabilities, and even those who have relationships with the disabled. [12] Nothing in job postings or vacancy notices should discourage the disabled from applying for open positions.

During the application/interview process, the ADA bars employers' disability-related inquiries (i.e., those that are likely to elicit information about disabilities.) [13] Consequently, applications and interviews should not include direct questions regarding the existence of disabilities, or their nature or extent. Employers may not ask if applicants will need reasonable accommodation to do the job for which they have applied, because the response is likely to reveal information regarding disabilities. [14] The ban includes asking questions concerning the applicants' workers compensation history, because any response is likely to include disability-related information. [15] Because employers are prohibited from directly asking applicants about disabilities at this stage, they may not solicit the same kind of information from third parties. [16]

The application/interview stage is entirely separate from the post-conditional offer and employment stages under the ADA. Therefore, while employers may not ask if applicants will need reasonable accommodation to do the job, they may ask if applicants will need reasonable accommodation to complete the application/interview process. [17] Employers should describe the process (written tests or job demonstrations), and ask if reasonable accommodation is needed. If it is, the employer may ask for documentation for the need if the disability is not obvious. [18]

Employers may ask applicants about nonmedical qualifications and skills required to perform the job: education, work experience, and mandated certifications and licenses. [19] Certain questions about attendance are permissible. For example, employers may state their attendance requirements and ask if the applicant can meet them. However, employers should avoid questions about the number of sick days the applicant has taken in the past, because the answer is likely to disclose disability-related information. [20] Applicants may also be asked to reveal their arrest or conviction records because the request is not likely to raise disability issues. [21]

While broad questions likely to reveal the existence of disabilities are prohibited during this stage, narrowly tailored questions concerning the performance of specific job functions are not. [22] For example, police recruiters may describe the functions of police officers and ask applicants if they can perform those functions, or to describe how they would do them, if all applicants are asked. In addition, applicants may be asked to demonstrate how they would perform these functions if all applicants are asked. If applicants reveal that they need reasonable accommodation for the demonstration, employers must provide the accommodation unless it would create an undue hardship. [23]

Questions concerning drug use are difficult. Addiction to drugs, both past and current, is a disability under the ADA, [24] so direct questions pertaining to addiction are prohibited. Therefore, questions such as "Are you addicted to drugs?" and "Have you ever been treated for drug addiction?" are impermissible. Current illegal drug [25] use, however, is not a disability under the ADA, even if the current use results from addiction. [26] Consequently, employers may ask applicants if they currently use illegal drugs. Past casual illegal drug use is not a disability, so questions regarding such use are permissible: "Have you ever used illegal drugs?;" "When was the last time you used illegal drugs?;" "Have you used illegal drugs in the last 6 months?" [27] It would violate the ADA, however, to ask applicants to list all medications they currently take because the question is likely to illicit information concerning disabilities. There is one exception to this prohibition against inquiring about current medicat ion use. As noted below, employers are permitted to test applicants for current illegal drug use. If the drug test is positive, employers may validate the test by asking applicants about lawful drug use or other possible explanations. [28]

Like drug addiction, alcoholism is a disability under the ADA if it substantially limits a major life activity. [29] Consequently, employers are prohibited from asking applicants questions that are likely to elicit information about their addiction to alcohol. [30] However, employers may ask if applicants drink, as long as the questions are not aimed at discovering how much they drink. [31]

The Application/Interview Stage: Medical Examinations

Medical examinations are prohibited during the application/interview stage. [32] Tests for illegal drug use are not considered medical examinations under the ADA, so employers may test applicants for current illegal drug use. [33] However, the EEOC has ruled that tests for alcohol use are medical in nature, and violate the ADA at this stage of the employment process. [34]

Two other kinds of tests may also be given at this stage. Physical agility tests that demonstrate the ability to do actual or simulated job-related tasks, with or without reasonable accommodation, are permissible if given to all applicants. [35] Examples of such tests for police applicants are the trigger pull test, obstacle courses simulating police chases and vision tests designed to determine if applicants can distinguish objects or read license plates. Employers may also require that applicants take physical fitness tests that measure their ability to do physical tasks such as running and lifting, so long as all applicants must do so. [36] Neither test is considered a medical examination under the ADA unless applicants' physiological or psychological responses to the tests are measured. [37] It does not violate the ADA to require that applicants certify that they can safely perform these tests. [38] If such a certification is required, employers should describe the tests to the applicant, and simply have their physician state whether or not they can safely perform the tests. It is also important to understand that if either physical agility or fitness tests screen out or tend to screen out disabled applicants, employers must be prepared to defend the tests as both job-related and consistent with business necessity. [39]

Applicants may also be given psychological tests that are not aimed at uncovering recognized mental disorders. [40] Psychological tests that measure such things as honesty, tastes, or habits are not considered medical examinations under the ADA. [41]

Polygraph examinations of applicants at the application/interview stage do not violate the ADA if no disability-related questions are asked during the exam. [42] However, to ensure accurate results, examiners generally must ask examinees prior to the exam if they are taking any medications that might affect the results. Such a question could violate the ADA because the answer is likely to elicit information regarding disabilities. Consequently, it may be wise to postpone the polygraph examination to the post-conditional offer stage. Before administering any polygraph examinations, however, police administrators should consult with their legal advisors regarding their legality under state law and local labor contracts. [43]

The Application/Interview Stage: Reasonable Accommodation

The ADA's statutory obligation to reasonably accommodate disabilities applies to the interview/application stage. [44] Employers must accommodate all applicants' known disabilities unless it would create an undue hardship on them. Employers may become aware of applicants' disabilities because it is obvious, or because the applicants disclosed their disabilities in response to the employers' inquiry for the need to accommodate them during the application/interview process.

Once the need for accommodation is demonstrated, the parties should decide what accommodations are appropriate. Typical accommodations at this stage include changing testing dates to accommodate doctors' appointments, changing testing sites to those accessible by the disabled, and giving applicants with reading disabilities more time to complete written examinations. The forms of accommodation are as varied as the imaginations of employers and applicants.

As can be seen from this discussion, the ADA limits the application/interview stage to employer inquiries and examinations designed to judge all of the non-disability related qualifications of applicants. But what if employers know at this stage that applicants are disabled? Must they ignore the disabilities entirely, even if they reasonably believe the disabilities will impact the applicants' ability to do the job?

There are several ways employers could lawfully become aware of applicants' disabilities. The disability may be obvious, such as a lost limb, or the use of a wheelchair. The applicant may have voluntarily disclosed the disability through a request for reasonable accommodation during the application/interview stage, or in response to employers' inquiries about their ability to perform job functions.

The EEOC has stated that when employers reasonably believe that applicants will need reasonable accommodation to perform job functions, they may discuss with applicants if accommodation will be needed, and the form that accommodation may take. [45] After these discussions, employers may decide that they cannot accommodate the disability because the applicants cannot perform the essential functions of the job, or pose a direct threat, or because the accommodation needed is unduly burdensome. If employers do not extend an offer to disabled applicants because of their disability, they must be prepared to defend their decisions against claims that they failed to hire the applicants because of the need to reasonably accommodate their disabilities. [46]

Once employers have judged applicants based upon their non-disability related qualifications during the application/interview stage, found them qualified, and made bona fide job offers to them, the ADA permits employers to face the issue of disabilities. Employers may now inquire about disabilities, require medical examinations, and condition their employment offers on the results of these medical examinations.

The EEOC considers job offers bona fide if they are made after employers have evaluated all of the relevant nonmedical information it reasonably could have gotten and analyzed before making the offer. [47] Conditional offers do not have to be limited to current vacancies. Conditional offers are still bona fide if they are made in reasonable anticipation of future vacancies. The number of offers may even exceed the number of current and anticipated vacancies if employers can demonstrate that a percentage of offerees will likely be disqualified or drop out of the pool. [48]

The Postconditional Offer Stage: Disability-related Inquiries

After making a conditional offer of employment, employers may ask applicants if they have disabilities and will need reasonable accommodation to perform the job. [49] There is no restriction on the nature of questions that may be asked. Consequently, employers may ask all of the questions prohibited during the application/interview stage: questions regarding the existence of disabilities, workers' compensation histories, sick leave usage, drug and alcohol addiction, as well as questions regarding general physical and mental health. The only conditions imposed on employers by the ADA are that all offerees be asked these questions, and that information gathered in response to the questions be kept confidential. [50]

If inquiries uncover disabilities, employers are bound by the basic requirements of the ADA. They reasonably must accommodate the disabilities unless the accommodation would pose an undue hardship or the person poses a direct threat. [51] If the inquiries result in conditional offers being withdrawn because of the disabilities, employers must be prepared to show that the exclusionary criteria is not discriminatory based upon disability, or is job-related and consistent with business necessity, [52] or they could not reasonably accommodate the disability, [53] or because the offeree poses a direct threat to the health or safety of others. [54]

The Post-Conditional Offer Stage: Medical Examinations

The ADA permits employers to require medical examinations after bona fide job offers have been made to applicants. The only conditions on these examinations are that all applicants be subject to the examinations and the results be kept confidential. [55]

All of the medical examinations barred at the application/interview stage are now permitted. There are no restrictions on the nature of these examinations, not even a requirement that they be job-related or matters of business necessity. [56]

As with post conditional offer disability-related inquiries, if medical examinations given at this stage reveal a disability and result in the offer being withdrawn, employers must be prepared to defend their decision because it does not discriminate against the disabled, or the disability could not be accommodated, or because the criteria upon which the decision was based is job-related and a matter of business necessity, or because the offeree poses a direct threat to health or safety.

The Postconditional Offer Stage: Reasonable Accommodation

Because the ADA requires employers to reasonably accommodate disabilities at all stages of the employment process, accommodation must be made for the offerees' disabilities unless it creates an undue burden. It is impossible to specify all accommodation possibilities. Examples may include reformatting a written psychological tests for blind or dyslexic offerees, or rescheduling examination times to accommodate medical appointments.

Once the post-conditional offer stage is over, and offerees are officially employees, the ADA reimposes restrictions on employers' prerogatives. These restrictions apply to both disability-related inquiries and medical examinations. In addition, the full impact of the employers' reasonable accommodation obligation is felt at this stage.

The Working Stage: Disability-Related Inquiries

The ADA permits employers to make disability-related inquiries of employees only if the inquiries are job related and consistent with job necessity. [57] Consequently, employers are generally barred from asking employees about the existence of disabilities, or their nature and extent. [58] The prohibition includes questions concerning workers' compensation histories, questions about current or past prescriptions, and broad questions about impairments likely to elicit information about disabilities. [59] The statute does permit inquiries regarding employees' ability to perform job-related functions, [60] as well as current illegal drug use, because current illegal drug users are not protected by the ADA. [61] Information received from employees in response to these questions must be kept confidential.

Disability-related inquiries are job-related and consistent with business necessity when employers have a reasonable belief, based upon objective evidence, that employees' ability to do their jobs is impaired, or that employees pose a direct threat because of the condition. [62] That objective

evidence generally comes in three forms: a deterioration in employees' work performance or attendance records; an employees' request for accommodation for a disability; or if employees are returning to work from medical or workers' compensation leave. In all three cases, employers may have legitimate concerns regarding the employees' abilities to perform the essential functions of their jobs, so inquiries are permissible if limited to issues of job performance, and responses are kept confidential. [63]

The EEOC recognizes that public safety employees are in a unique position. Because of that, police managers are sometimes given additional flexibility. For example, while asking employees about prescription medication use is generally prohibited, police officers taking certain medications may pose a direct threat to the public and other officers. Consequently, departments may require officers to report when they are taking certain medications that may impair their judgment or ability to use a firearm. [64]

Employers are also permitted to make disability-related inquiries of their employees if required to do so by federal law. [65] The EEOC cites federal safety regulations governing the transportation and airlines industries.

Another exception to the ban on posing disability-related questions to employees is when they are asked as part of a voluntary employee health program. [66] If the program is truly voluntary, such measures as blood pressure screening, weight control counseling, and cancer detection are permissible, if confidentiality is maintained. [67]

The Working Stage: Medical Examinations

As with disability-related inquiries, medical examinations of employees only may be required when the examination is job-related and a matter of business necessity, [68] meaning when employers reasonably believe employees cannot perform job-related functions.

Objective evidence of the employees' inability to perform is the same as discussed above: deterioration in employees' performance or attendance records, as part of a reasonable accommodation request, or upon employees' return to work after medical or workers' compensation leave. Employers also may require medical examinations to comply with federal regulatory requirements; or as part of a voluntary wellness program.

The EEOC and the courts have decided that periodic medical examinations of public safety personnel, even with no objective evidence of current job-related problems, are permissible under the ADA, because undetected medical problems of public safety personnel may pose a direct threat. [69] The EEOC has ruled that such examinations for public safety positions are permissible when tailored narrowly to address specific job-related concerns and are consistent with business necessity. [70] In Watson v. City of Miami, [71] a police officer challenged the city's required periodic testing of its police officers for tuberculosis. The federal Court of Appeals for the 11th Circuit decided that such testing was permissible under the ADA. If such tests reveal a disability, police managers reasonably must accommodate it. If the disability cannot be accommodated, they must be prepared to demonstrate that officers cannot perform their essential functions, or that they pose a direct threat.

The Working Stage: Reasonable Accommodation

The full impact of the ADA's reasonable accommodation obligation occurs when current employees become disabled. Failure to reasonably accommodate employees' disabilities is clearly discrimination under the ADA, unless employers can demonstrate an undue hardship, [72] or that disabled employees cannot perform essential functions, [73] or would pose a direct threat. [74]

It is impossible for police manager to identify all reasonable accommodations for employees' disabilities. However, it is possible to set out a general approach to the problem recognized by the courts and the EEOC.

Once employers become aware of employees' disabilities, they should begin to explore what, if any, reasonable accommodations are available. It is important to remember that only otherwise qualified employees who can perform the essential functions of the job sought or desired, with or without reasonable accommodation, are entitled to reasonable accommodation. Once it is decided that employees are entitled to ADA protection, certain logical steps should be followed.

Accommodation in Place

The first form of accommodation that should be considered is accommodation of employees in their current positions. The statute itself suggests certain kinds of appropriate accommodations: implementing part-time or modified work schedules; acquiring or modifying equipment or devices; restructuring jobs; and making existing facilities readily accessible to and usable by disabled employees. [75]

Modifying work schedules may be an easy solution to the problem. For example, ensuring that disabled employees get scheduled days off when they have doctors' appointments may be reasonable. Changing shifts or permitting employees to use sick or vacation time are other considerations. Employers are not required to consider these options, however, if they are unduly burdensome. For example, if employers can demonstrate these accommodations are too costly because of the need to hire temporary workers, or too disruptive because of the need to reassign the absent employees' work to others, the accommodation may be unreasonable and therefore not required. [76] Providing additional leave beyond that given to other employees is not required. [77]

Employers may also consider buying devises that will permit the disabled employee to perform the job. It may be as simple as buying a different chair, or braille materials that can be read by blind employees. The accommodation may also include making the disabled workers' space accessible by adding a ramp or widening doors. As always, this form of accommodation is subject to undue hardship limitations of cost and disruption to the workplace.

Job restructuring means changing the job itself to accommodate the disability. This involves analyzing the various functions of the job, determining which functions disabled employees cannot do, and eliminating those functions if they are not essential to the job, or changing when or how a job function is done. [78] Both the courts and the EEOC have recognized that employers need not eliminate essential job functions as part of the reasonable accommodation process? [79] Job restructuring is also subject to the undue hardship limitation. If restructuring entails hiring additional workers to cover eliminated functions or unduly burdening other employees, it may be unreasonable.

Reassignment

If disabled employees cannot be accommodated in their current positions, employers should consider reassignment to jobs they can perform. They need only consider current vacancies or vacancies that will occur in the near future, and jobs for which the disabled worker is qualified. [80] Employers do not have to "bump" employees to make room for a disabled worker, nor are they required to promote a disabled worker in order to keep them in the company. [81] Employers should first attempt to reassign disabled workers to positions with equivalent pay and benefits. If it is not possible to do so, employers are not required to pay the disabled worker more than the position requires. [82]

Police departments often create "light duty" jobs for injured officers. While the practice is laudable, it is not required by the ADA. [83] The practice may have unintended consequences if employees stay in the position too long. For example, if disabled employees are transferred to newly created light duty positions with no understanding that they are temporary, courts may decide the disabled employees are entitled to ADA protection in the new positions. [84] To avoid this situation, departments should create only light duty temporary positions to be filled by injured employees during their convalescence. [85]

It is currently unclear whether employers are required to reassign disabled workers to vacant positions when they have a more qualified applicant for the same position, or when the reassignment would violate a company policy. The EEOC takes the position that the disabled worker must be reassigned, not simply permitted to compete for the position. [86] The Commission also takes the position that a company policy to the contrary must be modified to allow the reassignment. [87] Some courts have agreed. [88] However, a recent court decision disagreed with that position, holding that disabled workers do not have to be given preference in reassignment to another position where employers had better non-disabled applicants, a policy of giving jobs to the best applicants, and the employees' disability played no role in the decision. [89] Most courts have found that employers need not assign disabled workers to vacant positions when the reassignment would violate seniority rights established under a collective bargaini ng agreement. [90]

Termination

If all forms of reasonable accommodation for employees' disabilities have been considered and proven ineffective or unduly burdensome, employers are under no legal obligation to continue employing disabled workers. The ADA does not prohibit termination of workers who cannot do the essential functions of the jobs they hold or seek, with or without reasonable accommodation. [91]

CONCLUSION

The ADA has a profound impact on the way police administrators manage their workplaces. To ensure that employers judge disabled applicants and workers fairly, the ADA strikes a balance between the interests of the parties. At the application/interview stage, employers are restricted to only asking questions and administering examinations aimed at exploring the non-disability-related qualifications of applicants.

Once applicants have been considered qualified, and the conditional offer of employment made to them, employers may fully examine the issue of offerees' disability. If disabilities are discovered, employers must accommodate them if it is reasonable to do so. If the disabilities cannot be reasonably accommodated, or the disabled applicant poses a health or safety risk, the offer may be withdrawn. If the offeree fails tests or examinations that are job-related and matters of business necessity, the offeree need not be hired.

Once offerees become employees, the ADA reimposes restrictions on employers. They are again limited regarding the kind of questions they may ask employees, and the kind of examinations they may require employees to take. If workers become disabled, employers are required to reasonably accommodate them unless it is unduly burdensome, or the employees pose a risk.

Endnotes

(1.) 42 U.S.C. 12101, et. seq.

(2.) EEOC, ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, 10/10/95.

(3.) 42 U.S.C. 12102(2).

(4.) Supra note 2; Doe v. Kohn, Nast & Graf, P.C., 866 F.Supp. 190 (E.D. Pa. 1994).

(5.) Supra note 2.

(6.) Supra note 2.

(7.) 29 CFR Pt. 1630 App. 1630.2(o).

(8.) 42 U.S.C. 12112(b)(5)(A) and (B).

(9.) 42 U.S.C. 12112(a).

(10.) Police managers are urged to consult their legal advisors regarding specific ADA questions. Most states have enacted their own statutes regarding disability discrimination, which may differ from the provisions of the ADA.

(11.) 42 U.S.C. 12101(a)(7).

(12.) See 42 U.S.C. 12112(b)(1)-(7).

(13.) 42 U.S.C. 12112(d)(2).

(14.) Supra note 2.

(15.) Supra note 2.

(16.) Supra note 2.

(17.) Supra note 2.

(18.) Supra note 2.

(19.) Supra note 2. Employers should be aware that these types of qualification standards are also subject to the provisions of Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). Managers should consult their legal advisors regarding the possible impact of this antidiscrimination statute.

(20.) Supra note 2.

(21.) Supra note 2. Employers should consult their legal advisors regarding the impact of Title VII on this qualification standard.

(22.) Supra note 2.

(23.) Supra note 2.

(24.) Supra note 2.

(25.) Illegal drugs are those described in schedules I through V of the Controlled Substances Act, 21 U.S.C. 812;29 CFR 1630.3(a)(1).

(26.) 42 U.S.C. 12114.

(27.) Supra note 2.

(28.) Supra note 2.

(29.) See 42 U.S.C. 12114(c)(4); Bekker v. Humana Health Plan, Incorporated, 2000 WL 1419610 (7th Cir. 2000); Martin v. Barnesville Exempted Village School District Board of Education, 209 F.3d 931 (6th Cir. 2000).

(30.) Supra note 2.

(31.) Supra note 2.

(32.) 42 U.S.C. 12112(d)(2)(A).

(33.) 42 U.S.C. 12114(d)(1).

(34.) Supra note 2.

(35.) Supra note 2; 29 CFR 1630. 14(a); 29 CFR, App., Pt. 1630.14(a). Employers should also consult their legal advisors on the impact of Title VII of the Civil Rights Act of 1964, as amended, on the use of physical agility and physical fitness tests as selection criteria.

(36.) Supra note 2.

(37.) Supra note 2.

(38.) Supra note 2.

(39.) 42 U.S.C. 12112(b)(6). In addition, employers must be prepared to meet challenges to these tests under Title VII of the Civil Rights Act of 1964, as well as other discrimination statutes.

(40.) Recognized mental disorders are listed in the American Psychiatric Associations' Diagnostic and Statistical Manual of Mental Disorders (DSM).

(41.) Supra note 2; Barnes v. Cochran, 944 F.Supp. 897 (S.D. Fla. 1996), affirmed 130 F.3d 443 (11th Cir. 1997).

(42.) Supra note 2.

(43.) In 1988, Congress passed the Employee Polygraph Protection Act (EPPA), 29 U.S.C. 2001 et seq. This law prohibits the use of polygraph screening by most private sector employers. It does not apply to federal, state, or local government employers. However, it does not preempt more restrictive state laws or collective bargaining agreements. Police administrators should consult their legal advisors concerning the use of the polygraph.

(44.) 42 U.S.C. 12112 (b)(5)(A).

(45.) Supra note 2.

(46.) 42 U.S.C. 12112(b)(5)(B).

(47.) Supra note 2.

(48.) Supra note 2.

(49.) Supra note 2; 29 CFR Pt. 1630, App. 1630.14(b).

(50.) Supra note 2.

(51.) 42 U.S.C. 12112(b)(5)(A).

(52.) 42 U.S.C. 12112(b)(6); 42 U.S.C. 12113(a).

(53.) 42 U.S.C. 12112(b)(5)(A).

(54.) 42 U.S.C. 12113(b).

(55.) 42 U.S.C. 12112(d)(3). The only exceptions to the confidentiality requirement are that supervisors may be informed about job necessary restrictions because of the medical condition, that safety personnel may be told if the condition may require emergency treatment, and that government compliance officials be given relevant information on request.

(56.) Supra note 2; 29 CFR Pt. 1630, App. 1630.14(b).

(57.) 42 U.S.C. 12112(d)(4)(A); 29 CFR 1630.14(c).

(58.) EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act, Notice no. 915.002 (7/27/00).

(59.) Id.

(60.) 42 U.S.C. 12112(d)(4)(B).

(61.) 42 U.S.C. 12114(a); EEOC, Enforcement Guidance, supra, note 58.

(62.) EEOC, Enforcement Guidance, supra, note 58.

(63.) 29 CFR Pt. 1630, App., 1630.14(c); Watson v. City of Miami, 177 F.3d 932 (11th Cir. 1999).

(64.) EEOC, Enforcement Guidance, supra, note 58.

(65.) EEOC, Enforcement Guidance, supra, note 58. Employers should consult with their legal advisors regarding the impact of state laws on this exception.

(66.) 42 U.S.C. 12112(d)(4)(B).

(67.) 29 CFR Pt. 1630, App., 1630.14(d).

(68.) 42 U.S.C. 12112(d)(4)(A).

(69.) EEOC, Enforcement Guidance, supra note 58.

(70.) EEOC, Enforcement Guidance: Psychiatric Disabilities and the Americans With Disabilities Act (March 25, 1997). In addition, such tests are subject to challenges under Title VII of the Civil Rights Act of 1964, as amended. Departments should consult with their legal advisors to ensure that such periodic exams do not discriminate against protected Title VII classes.

(71.) Supra note 63.

(72.) 42 U.S.C. 12112(b)(5)(A).

(73.) Id.

(74.) 42 U.S.C. 12113(b).

(75.) 42 U.S.C. 12111(9).

(76.) 29 CFR Pt. 1630, App. 1630.15(d).

(77.) EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (3/1/99). Employers also should consult their legal advisors regarding the impact of the Family and Medical Leave Act, 29 U.S.C. 2601 et seq.

(78.) Id.

(79.) Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995), supra note 77.

(80.) Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011 (8th Cir. 2000).

(81.) Id.

(82.) Supra note 77.

(83.) Hoskins v. Oakland County Sheriff's Department, 2000 WL 1043238 (6th Cir. 2000).

(84.) See Haysman v. Food Lion, Inc., 893 F.Supp. 1092 (S.D. Ga. 1995).

(85.) See Shiring v. Runyon, 90 F. 3d 827 (3rd Cir. 1996).

(86.) Supra note 77.

(87.) Supra note 77.

(88.) Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999).

(89.) Equal Employment Opportunity Commission v. Humiston-Keeling, Inc., 2000 WL 1310519 (7th Cir. 2000).

(90.) See Willis v. Pacific Maritime Association, 162 F.3d 561 (9th Cir. 1998).

(91.) Disanto v. McGraw-Hill, Incorporated/Platts Division, 220 F.3d 61 (2nd Cir. 2000); Treanor v. MCI Telecommunications Corporation, 200 F.3d 570 (8th Cir. 2000).
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Article Details
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Title Annotation:police department administration, interpretation and construction
Author:COLBRIDGE, THOMAS D.
Publication:The FBI Law Enforcement Bulletin
Geographic Code:1USA
Date:Jan 1, 2001
Words:6057
Previous Article:International Community Policing Partnership.
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