Overview The Face of Disability in the Workforce Americans with Disabilities Act What is a Disability Employer requirements under ADA
Rehab. Act of 1973, Section 503 VEVRAA PA. Human Relations Act
Americans with Disabilities Act (ADA) The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush. The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life ‐‐ to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. ADA Amendments Act (ADAAA) of 2008 . Its purpose is to broaden the definition of disability, which had been narrowed by U.S. Supreme Court decisions. Federal law that prohibits covered entities from discriminating against qualified individuals on the basis of disability , in all employment practices, and during all stages of employment Requires reasonable accommodation for known disability of a qualified applicant or employee, barring undue hardship
Five Titles of the ADA Title I. Employment Prohibits disability discrimination in all employment processes Title 2. Accessibility in public entities Physical and program accessibility in state/local govt. entities Title 3. Accessibility in businesses Physical and program accessibility in restaurants, hotels, stores, places of business Title 4. Telecommunications Telephone and communications systems for the public Title 5. Miscellaneous Protection from retaliation
Title I – Employment •Helps people with disabilities access the same employment opportunities and benefits available to people without disabilities. •Applies to employers with 15 or more employees., except….. •Requires employers to provide reasonable accommodations to qualified applicants or employees. A “reasonable accommodation” is a change that accommodates employees with disabilities so they can do the job without causing the employer “undue hardship” (too much difficulty or expense). •Defines disability, establishes guidelines for the reasonable accommodation process, and addresses medical examinations and inquiries. •Regulated and enforced by the U.S. Equal Employment Opportunity Commission. http://www.eeoc.gov/laws/types/disability.cfm
Do you have a disability under the law? Applies to applicants or employees who: ◦ Have a disability ◦ Have a record of having a disability ◦ Are regarded as having a disability
What is a “disability?” …A physical or mental impairment that substantially limits one or more major life activities*
Substantially Limits Legal Definition Substantially limits is defined as: "(i) [u]nable to perform a major life activity that the average person in the general population can perform; or (ii) [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the average person in the general population." Cato v. First Fed. Cmty. Bank, 2009 U.S. Dist. LEXIS 103469, 14‐15 (E.D. Tex. Nov. 5, 2009)
A Major Life Activities is What is the expanded definition of “major life activities” under the ADAAA? Under the ADAAA, “major life activities” is expanded to include “major bodily functions.” Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. • Major Bodily Functions include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
What does a "record of" a disability mean? “Record of” means that the person has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities, even though the person does not currently have a disability. For example, a person who undergoes treatment for cancer then returns to work. Although the cancer may be in remission, they have a record of having had it.
Limitations That Are Episodic or in Remission Will Be Considered As If Active The fact that a person’s limitations go into remission or come and go is no longer relevant to determining whether the impairment substantially limits a major life activity. For example, a person with post-traumatic stress disorder who experiences intermittent flashbacks to traumatic events can be substantially limited in brain function and thinking based on limitations during the flashbacks. Other examples of conditions that may be episodic or go into remission include: epilepsy, multiple sclerosis, cancer, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder, and schizophrenia.
Invisible Disabilities • One is unable to “see” the disability. • There are no “visible” supports to indicate a disability such as canes, wheelchairs, use or sign language used. • It is a permanent disability that they cope with on a daily basis. • The disability may be managed through medication or behavior such as in the case of diabetes, asthma, epilepsy or psychiatric disorders. • It needs to be a documented disability in order to receive reasonable accommodations under the ADA. • The person is in some kind of physical or emotional pain.
Types of Invisible Disabilities •Chronic Pain: A variety of conditions may cause chronic pain. A few of those reasons may be back problems, bone disease, physical injuries, and any number of other reasons. Chronic pain may not be noticeable to people who do not understand the victims specific medical condition. •Chronic Fatigue: This type of disability refers to an individual who constantly feels tired. This can be extremely debilitating and affect every aspect of a persons every day life. •Mental Illness: There are many mental illnesses that do qualify for disability benefits. Some examples are depression, attention deficit disorder, schizophrenia, agoraphobia, and many others. These diseases can also be completely debilitating to the victim, and can make performing everyday tasks extremely difficult, if not impossible. •Chronic Dizziness: Often associated with problems of the inner ear, chronic dizziness can lead to impairment when walking, driving, working, sleeping, and other common tasks.
W hat Are Som e Com m on Hidden Disabilities? • Psychiatric Disabilities—Examples include major depression, bipolar disorder, schizophrenia and anxiety disorders, post-traumatic stress disorder, etc. • Traumatic Brain Injury • Epilepsy • HIV/ AIDS • Diabetes • Chronic Fatigue Syndrome • Cystic Fibrosis • Attention Deficit-Disorder or Attention-Deficit/ Hyperactivity Disorder(ADD/ ADHD) • Learning Disabilities (LD) • Medical conditions associated with hidden disabilities. Examples include short or long term, stable or progress, constant or unpredictable and fluctuating, controlled by medication and untreatable.
The ADA applies to all aspects of the employment relationship, including the recruitment and selection process. You should be aware of the ADA’s impact on each of the following areas: • Advertising • Applications • Job Descriptions • Interviews • Testing • Medical Exams
Qualified Individual with a Disability A “qualified” individual with a disability can (1) satisfy the requisite skill, experience, education and other job‐related requirements and (2) perform the essential functions of a position with or without reasonable accommodation
Three Categories of Accommodations • Application Process • Performance of the essential functions of the position • Enjoyment of equal benefits and privileges of employment
About reasonable accommodations “…Any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities .”* Applies to both hiring and employment Must be provided for known disabilities Determined through an interactive process
• Change in the work environment or customary practices that enables an employee with a disability to enjoy equal employment opportunities. • Modifications/adjustments to job application process that enable qualified applicants with disabilities to be considered for the position sought; or • Modifications/adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified employee with a disability to perform the essential functions of that position; or • Modifications/adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment enjoyed by other similarly‐situated employees without disabilities.
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