Session Objectives Definition of Disability Qualified Reasonable - PDF document

Equal Employment Opportunity Commission Overview of Requirements of Title I/Employment Provisions of the Americans with Disabilities Act Sharon Rennert EEOC Senior Attorney Advisor ADA/GINA Division 1 Session Objectives ◼ Definition of Disability ◼ Qualified ◼ Reasonable Accommodation ◼ Disability-Related Questions & Medical Exams  Applicants and Current Employees ◼ Direct Threat 2 1

General Provisions ◼ Prohibits employment discrimination on the basis of disability ◼ Covers private employers with 15 or more employees  State and local employers also covered (no minimum number of employees required)  Federal employers covered by Rehabilitation Act ◼ Prohibits retaliation, harassment 3 Definition of Disability ◼ An individual with a disability is one who:  Has a physical or mental impairment that substantially limits a major life activity; or  Has a record of such an impairment; or  Is regarded as having such an impairment. 4 2

Impairment ◼ What is an impairment:  A physiological disorder or condition  A mental or psychological disorder 5 Major Life Activities: Two Possible Categories/First One Focuses on Major Bodily Functions Immune System Circulatory ◼ ◼ Special sense organs (ears, Cardiovascular ◼ ◼ nose) and skin Endocrine ◼ Normal cell growth ◼ Hemic ◼ Digestive ◼ Lymphatic ◼ Genitourinary ◼ Musculoskeletal ◼ Bowel ◼ Reproductive ◼ Bladder ◼ Operation of an individual ◼ Neurological organ (kidney) ◼ Brain ◼ Respiratory ◼ 6 3

Major Life Activities: 2nd Category is Common Activities Performed by Everyone Without Disabilities Walking Caring for oneself ◼ ◼ Seeing Interacting with others ◼ ◼ Hearing Performing manual tasks ◼ ◼ Eating Bending ◼ ◼ Sleeping Speaking ◼ ◼ Standing Communicating ◼ ◼ Sitting Breathing ◼ ◼ Reaching Learning ◼ ◼ Lifting Reading ◼ ◼ [Working] Concentrating ◼ ◼ Thinking ◼ 7 Substantially Limited: Not Demanding Standard No single or simple definition of “substantially limited” ◼ Individualized assessment ◼ Construed broadly: No requirement that limitation be permanent or even ◼ long-term (several months suffices) Should not require extensive analysis (Meaning: shouldn’t take several ◼ weeks of analyzing information to make determination) Evaluate limitation in performing major life activity as compared to most ◼ people No requirement that person be prevented or significantly restricted in  performing major life activity May Consider: ◼ Condition and Manner of performing major life activity  Duration can perform major life activity  8 4

Disregard Positive Impact From Using Mitigating Measures When Assessing If Substantial Limitation Exists Measures to lessen impact of an impairment ◼ Medication ◼ Prosthetic limbs ◼ Hearing aids and cochlear implants ◼ Mobility devices: wheelchair, walker, cane ◼ Oxygen therapy equipment ◼ Other medical supplies or equipment ◼ Low vision devices (but not ordinary eyeglasses or ◼ contact lenses) Learned behavioral adaptations ◼ 9 Assessing Substantial Limitation for Impairments That Are Episodic or In Remission Assess impact on performance of major life activity ◼ if/when the impairment is active to determine if person substantially limited Question to ask: What happens (or would happen) ◼ during period when impairment is active Examples of episodic impairments: epilepsy, major ◼ depression, multiple sclerosis (periods when active and periods when dormant) In remission: cancer (not cured necessarily) ◼ For those using a mitigating measure: ask what ◼ symptoms or impact existed prior to it use 10 5

Impairments That Basically Always Constitute a Disability Individualized assessment certain to show a disability: ◼ Deafness and Blindness  Intellectual Disability  Partially or Completely Missing Limbs  Mobility Impairments requiring use of wheelchair  Autism  Cancer  Cerebral Palsy  Major Depressive Disorder, Bipolar Disorder, PTSD, Obsessive Compulsive  Disorder, Schizophrenia Diabetes  Epilepsy  HIV Infection  Multiple Sclerosis  Muscular Dystrophy  11 Record of a Disability ◼ Disability in the past ◼ No longer substantially limited ◼ Rarely used definition ◼ Use same factors we just reviewed to evaluate if a current impairment constitutes a disability, but just apply all the factors to the past 12 6

Regarded as Having a Disability Occurs when employer/union/employment agency ◼ takes a negative employment action based on applicant or employee’s real or perceived (imagined) impairment Examples of negative employment actions: failure to ◼ hire or to promote, termination, denial of benefits otherwise eligible for, poor work evaluation Concepts of “substantial limitation” and “major life ◼ activity” irrelevant to this definition Myths, fears, or stereotypes ◼ 13 Association/Relationship with a Person with a Disability ◼ The ADA prohibits discrimination against an individual based on their “ association ” with a person who has a disability (e.g., family member) ◼ Employer is not required to provide a reasonable accommodation to an employee based on that person’s association. 14 7

Qualified ◼ An individual with a disability is qualified if s/he:  Satisfies the skills, education, and training required for the position; and  Can perform the essential functions of the position with or without reasonable accommodation 15 Essential Functions ◼ These are the fundamental job duties. ◼ Marginal Functions : Less important duties in the position ◼ A function may be essential for several reasons:  The job exists to perform that function  There are a limited number of people to perform the function  The job is highly specialized 16 8

What Do We Look at To Determine if Job Duty is Essential or Marginal Employer’s judgment (but need to back it up with ◼ facts) Job description written before advertising the position ◼ Amount of time employee spends performing the ◼ function Consequences of not performing the function ◼ Current work experience of incumbents in similar jobs ◼ or work experience of past incumbents in this job Terms of a collective bargaining agreement ◼ 17 Essential versus Marginal Functions ◼ When is this distinction important:  If employee requests removal of a job function  Never required to remove essential function (ability to perform essential functions is one of the ways we determine if individual is “qualified”) but may be required to remove marginal function as a reasonable accommodation where safe/competent performance of marginal function not possible because of disability 18 9

Employment Tests ◼ Administration of tests A test must be selected and administered in the  most effective manner to ensure that it does not measure impaired sensory, manual, or speaking skills , unless those skills are what the test is intended to measure. Reasonable accommodations are required to  allow applicants or employees with disabilities to take tests related to employment, unless the accommodation would result in undue hardship . 19 Employment Tests/Qualification Standards May not be used to screen out (or to take some other ❑ adverse action against) an applicant or employee on the basis of disability who can actually perform the essential functions of a job with or without a reasonable accommodation, despite an inability to pass the test or meet the qualification standard. If a test would (or does) screen out a person based on ❑ disability, employer must be able to justify use of test by showing that the test is related to competent performance of an essential function of the position and no reasonable accommodation would permit such performance 20 10

Reasonable Accommodation A reasonable accommodation is a change in the workplace, ❑ or in the way things are usually done, that provides equal employment opportunities for individuals with disabilities General rule : An employer provides a reasonable ❑ accommodation to an individual with a disability if requested and if doing so does not pose an undue hardship Three areas where reasonable accommodation may be ❑ required Application process ❑ On the job or to access the workplace ❑ Access to benefits and privileges of employment ❑ 21 Interactive Process Used to Determine if Reasonable Accommodation is Needed Individualized Process: Avoid snap decisions ❑ Process usually starts with a request from applicant/employee ❑ (or third party such as doctor or family member acting on behalf of individual) No “magic words” needed: Person saying I need something ❑ from employer because of a medical condition = Request for reasonable accommodation Request need not be in writing ❑ Employer may obtain medical information to support the ❑ employee’s request Cooperative process: Individual shares information to enable ❑ employer to make informed decision and employer raises questions/concerns that individual may be able to address 22 11