Avoiding Disability Discrimination

I. Who is protected?

The Americans with Disabilities Act (ADA) only protects people who can show that they are "disabled." A person with a disease or disorder will be considered "disabled" if they can prove one of three things:

• that a mental or physical illness limits a major life activity,
• that they have a record of having such an impairment, or
• that they are regarded as having such an impairment.

Many conditions are excluded by statute and regulation from being considered ""disabilities:"

• sexual behavior disorders
• gender identity disorders not resulting from physical impairments
• compulsive gambling
• pyromania
• kleptomania
• current drug use
• current alcoholism

II. What are the protections?

The ADA prevents employers from using a disability to make decisions in:

• hiring,
• discharge,
• promotion,
• compensation,
• job training, or
• benefits.

This prevents employers (in most cases) from asking about illness or treatment on job applications. Employers also cannot fire someone just because they suffer from a handicap. It is also illegal to deny someone a promotion, training, a raise, or benefits based on a handicap (with a few exceptions).

The ADA also requires employers to make "reasonable accommodations" for people with a mental or physical illness that constitutes a "disability."

An example of an accommodation would be changes in work hours or work rules to help someone with an illness do their job.

III. Exceptions to these protections.

Exceptions to the above rules take the form of explanations or justifications ("employer defenses") for conduct that might seem at first glance to be discrimination.

A first exception to the ADA's protections is where seemingly discriminatory selection criteria for a job are actually dictated by business necessity - where a selection criterion is a "bona fide occupational qualification" (BFOQ). It is legal to treat people differently where selection criteria for a job, promotion, or salary increase are dictated by business necessity or BFOQ's. In other words, an employer could probably require a strength test for dockworkers, but not for bank tellers.

A second exception is where accommodation of a handicap would place an undue hardship on the employer. An employer cannot be expected to put itself out of business to accommodate a handicap.

For example, you might be required to put in a ramp for a wheelchair-bound employee, but you probably would not be required to create a germ-free NASA "clean room" if the Boy in the Plastic Bubble applied for a job. However, most accommodations are actually fairly inexpensive. A recent survey showed that over 50 percent of the handicap accommodations required cost less than $50. The reasonableness of an accommodation depends on the size and financial ability of the employer, and can include:

• rescheduling a job,
• changing a job's duties,
• reassigning jobs, or
• purchasing devices (like wrist wrests for carpal tunnel sufferers, or Braille readers for the blind).
• hiring helpers such as sign-language interpreters

A third exception is where the disabled person poses a direct threat to himself or to the health and safety of others. This exception would allow employers not to hire someone with, say, uncontrollable Parkinson's syndrome, as an airline pilot.

These three exceptions were Congress' attempt to make the ADA's requirements more reasonable for employers. The exceptions plus the rules mean that in court, an employee must first show that handicapped people are being treated differently in the workplace. Then, the employer will get a chance to explain this different treatment.

IV. The ADA and job testing.

The ADA places some restrictions on an employer's ability to ask about medical conditions during job interviews, or to give medical tests to employees. You can give medical tests only if:

• you have made a conditional job offer to the individual
• all employees are required to take the medical test
• the test results are confidential
• the test is to determine ability to do the job, not the extent of the handicap.

Copyright 1996 David Trieloff, Esq.

Mr. Trieloff passed away on April 16th, 1998 and is sadly missed by the staff of the Business Know-How where he was a member of the volunteer staff.