Americans with Disabilities Act

The Americans with Disabilities Act protects job applicants and employees who either:

• have a physical or mental impairment that substantially limits a major life activity,
• had such an impairment in the past but no longer do,
• do not have but are assumed to have such an impairment.

Any applicant or employee who fits one of these conditions is defined and recognized as “disabled” under the ADA.
The disabled employee must be able to perform the essential functions of his or her job. Stated differently, an employer might be required to eliminate non-essential functions of the job in order to reasonably accommodate the employee.

Impairment, as described by the law, may be physical or mental. Additionally, the impairment must be a medically documented condition that affects the person’s ability to function normally. Because no exhaustive list exists that tells which disabilities are covered, the employee must assert the disability, show how it affects him or her and suggest reasonable accommodations. The Social Security Administration offers information about certain disabilities; however, as long as the physical or mental condition fits within one of the ADA’s three qualifying situations above, it is a disability under the law.

The term “substantially limits” means that the person is unable to perform (or is significantly restricted in performing) activities that an average person can. Moreover, the inability or limitation in performing the activity must be permanent or long-term. One important exception is if an employee can use corrective measures that diminish the effects of the disability, he or she is not “disabled” under the ADA. This is common with such items as eyeglasses, hearing aids and prosthetics.

A major life activity is easier to define: Walking, seeing, hearing, caring for oneself and managing one’s life are examples. The nuance of the definition occurs in what constitutes a major life activity in the context of working. Work itself is not a major life activity within the meaning of the law, and courts have held that an individual must be prevented in working in a broad class of jobs in the geographical area based on that person’s knowledge, skill and experience. Simply being prevented from working in one specific job is not being limited in a major life activity.

Conditions two and three of the disability definition above aim to protect individuals who either have had a disability in the past or are incorrectly perceived as having a disability. If a former drug user applies for a job, he or she may not be discriminated against because of the past drug use. (Former drug use is protected under the ADA; current drug use is not.) Likewise, if someone with a stuttering problem applies for a job and the hiring manager incorrectly assumes that the applicant has a disability, the manager is prohibited from discriminating against the applicant on that basis.

Accommodations

A major factor in determining whether an employer must accommodate a disabled employee is the costs that the employer would incur. Every case is different, and without knowing all the facts, it is impossible to determine which accommodations are reasonable and which are not. However, how big a business is goes a long way toward determining whether it could incur the costs to accommodate the employee. For instance, a multi-million dollar corporation would have a hard time explaining that costs were excessive; a business employing 20 people, however, would have an easier time making that claim.

Keeping in mind that costs are always a factor, a business might be required to build a ramp or an elevator for a wheelchair-bound employee or provide an ergonomic chair for an employee with a back condition.

One common accommodation is allowing disabled employees to receive certain treatments for an ailment, such as chemotherapy or dialysis. Allowing the employee to leave work for a few hours a week to get treatment likely is a reasonable accommodation.

The ADA applies also to mentally handicapped individuals. A common accommodation for a mentally ill employee is allowing him or her a few hours each week for counseling, psychotherapy or another medical appointment. Some mentally ill individuals need extra time to learn certain tasks or must work in an environment with few or no distractions.

Employer Defenses to Claims

The most common defense to an ADA claim is that the employer was unable to reasonably accommodate the disabled employee. If this defense is asserted, the employer must show that accommodating the employee would pose an undue hardship. This is best shown by the costs associated with the accommodation, such as new construction, lost productivity or the need to hire someone to help the employee.

Another specific defense associated with the ADA is that the disabled employee could not perform the essential functions of the job. Employers can help this defense by spelling out the essential functions of the job. This is best done by placing that information in job ads and discussing it with employees during interviews. Thus, the employer can largely dictate what the essential functions are, although if a discrimination claim is made, the Equal Employment Opportunity Commission (or the court) might look deeper into whether the functions that the employee was unable to perform were actually essential.

A final defense is that the disabled employee posed a direct threat to himself or herself or others. To prove this, an employer must show four things:

• The employee’s condition has a high probability of substantially harming himself or herself or others.
• This harm likely would occur.
• Objective evidence exists supporting this direct-threat claim.
• No reasonable accommodation could alleviate the risk.

The direct-threat defense is most common in situations where employees have mental conditions, such as schizophrenia.
Last update: Nov. 5, 2008