The Americans with Disabilities Act.
The vast majority of Americans would agree with eliminating discrimination against people with disabilities. At the same time, few laws have created as much confusion and concern among employers, both public and private, as the ADA. The legal issues raised by the ADA are certainly complex. Many lawyers now dedicate their entire practice to litigating ADA issues, and court dockets are increasingly filled with cases raising difficult legal questions about the act.
This article is the first in a series that will explore the basic concepts underlying the ADA and discusses the origins of the ADA, its enforcement, who must comply with its provisions, and the concept of "essential functions" of the job. Subsequent articles will focus on issues of who is protected by the act, the obligation of "reasonable acommodation," defenses available to employers faced with ADA claims, and the impact of the ADA on the hiring process. The goal of the series is to provide police employers and managers with sufficient information to permit them to know when they are facing ADA issues and how to avoid common pitfalls created by the legislation.
Guidance on the Meaning of the ADA
There are four sources of guidance on the meaning of the ADA. Obviously, the first is the statute itself. In definitional sections,  Congress defines many of the important terms it uses in the act. The act also specifies certain acts of employers that are considered discriminatory. 
The second source of guidance are two statutes previously passed by Congress, the Civil Rights Act of 1964 (Title VII) and the Rehabilitation Act of l973.  Title VII prohibits discrimination against certain protected classes of people in the exercise of a broad range of rights, including employment rights. The ADA and Title VII prohibit many of the same employment practices and practically have the same remedies for violations. The Rehabilitation Act is Congress' first attempt to address employment discrimination against people with disabilities. The Rehabilitation Act does not cover the private sector or entities not receiving federal funding. However, it remains an important source of protection for federal employees and those working for federal contractors. The ADA adopts many concepts from the Rehabilitation Act. Because of the relationship of the ADA to these prior statutes, many of the administrative rulings and court decisions regarding Title VII and the Rehabilitation Act serve as guidance for those charged with administering and interpreting the ADA.
Another source of guidance regarding the ADA is the Equal Employment Opportunities Commission (EEOC). The EEOC was created by Congress in the Civil Rights Act of 1964.  Congress has given the EEOC broad authority to interpret and enforce the provisions of the ADA. In that role, the EEOC has issued regulations  and interpretive guidance.  The regulations and interpretive guidance are intended to offer advice to employers and regulators regarding issues arising under the ADA, in the absence of definitive legislative action or court rulings on issues argued in actual cases.
The courts have the final word on the ADA. They are increasingly called upon to interpret the meaning of the language of the statute in cases alleging discrimination. While courts are free to, and often do, look for guidance from the EEOC, they are not compelled to do so and often disagree with EEOC regulations and guidance. 
How is the ADA Enforced?
The EEOC is charged with the responsibility of administering and enforcing the ADA.  A person with a disability may file a complaint of discrimination with the EEOC, or the commission itself may file a charge in cases where it sees discrimination but no complaint has been filed.  An agency investigation will then be made.  The EEOC has broad investigative power, including the authority to subpoena witnesses and evidence.
If the commission determines that discrimination does not exist, it will dismiss the claim.  That does not end the matter for the complainant, however. The complainant still has the right to sue the employer in spite of the commission's dismissal of the claim. 
Where the commission determines that there is reasonable cause to believe discrimination has occurred, it will attempt to resolve the problem through conciliation.  If conciliation efforts fail, the commission itself may bring a civil action against the respondent, unless the respondent is a government, governmental agency, or political subdivision.  In cases where the respondent is a government, governmental agency, or political subdivision, the statute reserves the decision to pursue remedies to the Attorney General. Even where the commission decides that there is a case of discrimination and proceeds with conciliation or civil remedy, the individual suffering the discrimination is still permitted to sue the respondent in court unless the complainant agreed to a negotiated settlement.
Who Must Comply with the ADA?
The reach of the ADA is extremely broad. By its terms, the ADA prohibits acts of discrimination against qualified people with disabilities by a "covered entity," which the statute defines as an employer, employment agency, labor organization, or joint labor-management committee.  An "employer" is any one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, or corporations that in some way affect commerce and has 15 or more employees.  Literally, all but the smallest employers (and the U.S. government, Indian tribes, and tax-exempt membership clubs)  must comply with the ADA.
There is currently a debate in legal circles whether Congress violated the Eleventh Amendment  to the Constitution when it made states and state units (state police and state universities, for example) subject to the ADA. The U.S. Supreme Court has broadly interpreted the Eleventh Amendment to mean that states generally cannot be sued by individuals except where their immunity has been lawfully waived by the states themselves or lawfully abrogated by Congress.  Federal Circuit Courts of Appeals have disagreed on whether the ADA lawfully abrogated the states' sovereign immunity.  The Supreme Court recently agreed to hear two cases raising the question,  but subsequently dismissed them when the parties to the cases reached settlements.
Even if the Supreme Court decides in the future that Congress did not lawfully abrogate state sovereign immunity in the ADA, it would not mean that states and their units are no longer bound by the provisions of the ADA. It would simply mean that the federal courts could not hear cases in which individual plaintiffs allege that a state or state unit discriminated against them on the basis of their disability. States would still be bound by the ADA's prohibition of discrimination against people with disabilities, but the federal courts would not be the forum in which these individuals could make ADA claims against states. Private plaintiffs alleging discrimination could still seek redress for violations of the ADA by the actions of a state employer in state courts where the state has consented to such suits, or waived sovereign immunity by enacting its own statute prohibiting such discrimination.  The individual plaintiff could join claims under both the state statute and the ADA, and the state court would have to resolve both.  In any event, the Eleventh Amendment does not forbid enforcement of the ADA by the United States in a lawsuit against a state or state unit. 
Who Is Protected by the ADA?
The ADA prohibits discrimination against a "...qualified individual with a disability because of the disability...."  This protection extends not only to current employees of covered entities, but also to people with disabilities who apply for employment at a covered entity. 
Understanding who is a "qualified individual" for purposes of the ADA has not been easy for employers or courts. Determining who qualifies for ADA protection must start with the language of the statute itself.
The ADA defines a qualified individual as "...an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."  Consequently, to claim ADA protection, a person must demonstrate he or she is otherwise qualified for the position, has a disability, and is able to perform the essential functions of the job held or desired, with or without reasonable accommodation by the employer.
The Qualified Person
The ADA does not create a statutory preference for people with disabilities. An employer is not required to hire an unqualified disabled person, or even a less qualified disabled person if a more qualified nondisabled person is competing for the same position. The purpose of the ADA is to ensure that disabled persons are given the same employment opportunities as the nondisabled, not to give them an advantage. 
Determining if a person with a disability is otherwise qualified under the ADA is a two-step process.  The first step is to determine if that person "satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc."  An employer is permitted under the ADA to use such qualification standards if they are "job related and consistent with business necessity,"  or if the qualification is mandated by law or regulation.  It would be absurd to require an employer to hire someone for a CPA position who has no training as a CPA, just because the applicant is disabled. Similarly, a police department is not mandated by the ADA to consider a person with a disability for the position of police officer when the applicant has not complied with state mandated certification requirements. Consequently, courts have upheld employers' decisions to not hire people with disabilities who lacked the requisite high school diploma, [37 ] the government security clearance,  or the commercial driver's license,  where those qualifications are essential to the performance of the job, or mandated by law.
The EEOC has made it clear that qualification standards will not be considered reasonable unless they clearly apply to the job under consideration (i.e., are job related) and they judge only qualifications necessary to perform the essential functions of that job (i.e., are a matter of business necessity). 
The second step in the inquiry regarding qualification under the ADA is whether the otherwise-qualified disabled person is able to perform the essential functions of the position held or sought, with or without reasonable accommodation. A subsequent article will discuss reasonable accommodation. Suffice it to say here that the ADA imposes a duty upon the employer to accommodate the disability of an otherwise-qualified disabled person if that accommodation can be made without creating an undue hardship on the employer. 
Employers must obviously know what the essential functions of a particular position are if they are to make informed decisions about an otherwise-qualified disabled person's ability to perform them, and defend those decisions in court should the need arise.  However, defining the essential functions of a job is more art than science. The ADA offers little guidance. It merely says that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing for the job, this description shall be considered evidence of the essential functions of the job." 
Regulations issued by the EEOC are more helpful. They state that essential functions include only fundamental, not marginal, job functions.  The regulations go on to set out several reasons for considering a job function essential: the position exists to perform that particular function; there are a limited number of employees to whom the function can be given; or the position is so specialized that the employees were hired because of their expertise or ability to perform it.  In deciding whether a function is essential to the job, the EEOC recommends that the following factors be considered: the employer's judgment; written job descriptions; the amount of time spent performing the function; the consequences of not requiring the function to be performed; collective bargaining agreements; and the experience of the job incumbent or incumbents in similar positions. 
The wise manager should take the time to identify the essential functions of all positions in his or her organization. For the police manager, some of the work of identifying essential functions of a police officer has been done by the courts. For example, case law has established that firing a weapon and making forcible arrests are essential functions of a police officer.  Driving is also essential,  as well as evidence collection.  This list is obviously not exhaustive. Logically, officers must also be able to testify in court, communicate with victims and witnesses, and read and write reports. Physical functioning also is crucial to officers--they must be able to see, hear, walk, run, jump, climb fences, or crouch. Taking the time to meticulously identify these essential functions prior to advertising open positions can save time and money if a claim under the ADA arises.
Some employers are confused concerning application of the essential function concept of the ADA. They have argued that because employees cannot perform the essential functions of their current positions, they are not protected by the ADA. However, the ADA protects people with disabilities who can perform the essential functions of their current or desired position. If employees cannot perform their current essential functions, the ADA may impose an obligation on the employer to reasonably accommodate those employees with a disability by offering them another position in the organization that they can perform. 
Most employers in America today are affected by the Americans with Disabilities Act. The statute protects both current employees and job applicants from discrimination by employers on the basis of a disability. However, it is not a preferential statute. The ADA does not require that employers protect individuals with disabilities who are otherwise unqualified because they lack job-related education requirements, skills, or legally mandated certifications, or even those who are less qualified than other job seekers. It also offers no protection to people with disabilities who are unable to perform the essential functions of the jobs for which they hold or apply.
As a first step toward compliance with the ADA, employers should review the job descriptions of positions in their organizations. They should ensure that all of the essential functions of the position are identified. They should then ensure that all of the qualification standards used to judge job seekers relate both to the job under consideration, and only to the essential functions of that job, or are mandated by law. Assuming individuals are otherwise qualified for purposes of the ADA, those individuals are still not protected by the ADA unless they have a disability.
Special Agent Co/bridge is a legal instructor at the FBI Academy.
(1.) 42 USCA 12101 et seq.
(2.) See 42 USCA [sections] 12101.
(3.) 42 USCA [sections] 12101(a) (3).
(4.) 42 USCA [sections] 12102 and 12111.
(5.) 42 USCA [sections] 12112.
(6.) 42 USCA [sections] 2000a, et seq.
(7.) 29 USCA [sections] 701 et seq.
(8.) Supra note 6, at 2000e-4.
(9.) 29 CFR [sections] 1630.1 et seq.
(10.) 29 CFR 1630, App.
(11.) See Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999), and Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) where the Supreme Court held that EEOC regulations and guidance are not dispositive interpretations of the ADA.
(12.) 42 USCA [sections] 12117.
(13.) See 29 CFR [sections] 1601.7 and 1601.11.
(14.) See 29 CFR [sections] 1601.15.
(15.) See 29 CFR [sections] 1601.18.
(16.) See 29 CFR [sections] 1601.19.
(17.) See 29 CFR [sections] 1601.24.
(18.) See 29 CFR [sections] 1601.27.
(19.) 42 USCA [sections] 12111 (2).
(20.) 42 USCA [sections] 12111(5) and (7) (incorporating the definition of "person" from 42 USCA [sections] 2000e).
(21.) 42 USCA [sections] 12111 (5)(B) exempts the listed entities.
(22.) The Eleventh Amendment reads: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."
(23.) States may consent to be sued in individual cases, they may waive their sovereign immunity in certain types of lawsuits, or Congress may abrogate states' sovereign immunity through federal legislation in certain cases. See Seminole Tribe v. Florida, 517 U.S. 44 (1996); Alden v. Maine, 527 U.S. 706 (1999); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999).
(24.) Compare Muller v. Costello, 187 F.3d 298 (2nd Cir. 1999); Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998); Clark v. California, 123 F.3d 1267 (9th Cir, 1997); Martin v. Kansas, 190 F.3d 1120 (10th Cir. 1999); Kimel v. Florida Board of Regents (11th Cir. 1998); all upholding the application of the ADA to states; with Alsbrook v. Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc), holding that Congress did not lawfully abrogate state soveignty.
(25.) Florida Department of Corrections v. Dickerson, 120 S. Ct. 976 (2000), cert. dismissed 120 S. Ct. 1236 (2000); Alsbrook v. Arkansas, 120 S. Ct. 1003 (2000), cert. dismissed 120 S. Ct. 1265 (2000).
(26.) See Erickson v. Board of Governors for Northeast Illinois University, 207 F.3d 945 (7th Cir. 2000).
(27.) Id. See also Howlett v. Rose, 496 U.S. 356 (1990).
(28.) Id. See also West Virginia v. United States, 497 U.S. 305 (1987).
(29.) 42 USCA [sections] 12112 (a).
(30.) See 42 [sections] USCA 12112 (b)(1), (4), (5)(A),(B), (6), and (7).
(31.) 42 USCA [sections] 12111(8).
(32.) McCullough v. Atlanta Brewing Company, 929 F.Supp 1489 (N.D. Georgia 1996); Bryant v. Delbar Products, Inc. 18 F.Supp.2d 799 (M.D. Tenn. 1998) see also 29 CFR 1630.1(a).
(33.) Bay v. Cassens Transit Company, 212 F.3d 969 (7th Cir. 2000).
(34.) Id. citing 29 CFR app.1630.2(m).
(35.) 42 USCA [sections] 12113(a) and 29 CFR [sections] 1630. 15(b)( 1).
(36.) Albertsons v. Kirkingburg, 527 U.S. 555 (1999); 29 CFR [sections] 1630.15(e).
(37.) Jabloaski v. Chas. Levy Circulating Co., 919 F.Supp. 298 (N.D.Ill. 1996).
(38.) McDaniel v. Allied-Signal, Inc. 896 F.Supp. 1482 (W.D.Mo. 1995).
(39.) Albertsons. Inc. v. Kirkingburg, supra note 32.
(40.) 29 CFR 1630.10; 29 CFR pt.1630, App. 1630. 10.
(41.) 42 USCA [sections] 12112(b)(5)(A).
(42.) The burden of defending the designation of a function as essential falls upon the employer. See Lenker v. Methodist Hospital, 210 F.3d 792 (7th Cir. 2000).
(43.) 42 USCA [sections] 12111(8).
(44.) 29 CFR [sections] 1630.2(n); see also Lenker, supra note 42.
(47.) Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999).
(48.) Gonzalez v. City of New Braunfels. Texas, 176 F.3d 834 (5th Cir. 1999).
(49.) Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997).
(50.) Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc).
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
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|Author:||COLBRIDGE, THOMAS D.|
|Publication:||The FBI Law Enforcement Bulletin|
|Date:||Sep 1, 2000|
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