2.3 Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a crucial federal law that protects individuals with disabilities from discrimination in various aspects of life, including employment. It requires employers to provide reasonable accommodations and ensures equal opportunities for qualified individuals with disabilities.

The ADA covers private employers with 15+ employees, state and local governments, employment agencies, and labor organizations. It protects qualified individuals with physical or mental impairments that substantially limit major life activities, promoting inclusivity and fair treatment in the workplace.

Overview of ADA

• The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against individuals with disabilities in various areas of public life, including employment, education, transportation, and access to public accommodations
• The ADA was enacted in 1990 to ensure equal opportunities and protect the rights of individuals with disabilities, promoting their full participation in society and the workforce
• The law applies to employers with 15 or more employees and requires them to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause undue hardship

Scope of coverage

Private employers

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• The ADA applies to private employers with 15 or more employees, regardless of the nature of their business or industry
• This includes corporations, partnerships, sole proprietorships, and non-profit organizations
• Smaller employers with fewer than 15 employees are not directly covered by the ADA, but may be subject to similar state or local laws

State and local governments

• The ADA applies to all state and local government entities, regardless of the number of employees
• This includes state agencies, municipalities, counties, public schools, and universities
• Government entities must ensure that their employment practices, programs, and services are accessible to individuals with disabilities

Employment agencies

• Employment agencies, including staffing firms and recruitment agencies, are covered by the ADA
• They must not discriminate against individuals with disabilities in their referral, screening, or placement practices
• Employment agencies must also provide reasonable accommodations to job applicants with disabilities during the application and interview process

Labor organizations

• Labor unions and other labor organizations are subject to the ADA's provisions
• They must not discriminate against members or applicants with disabilities in their membership practices, collective bargaining agreements, or apprenticeship programs
• Labor organizations must also reasonably accommodate members with disabilities to ensure their equal participation in union activities

Who is protected

Qualified individuals

• The ADA protects qualified individuals with disabilities from discrimination in employment
• A qualified individual is someone who meets the necessary skills, experience, education, and other job-related requirements for the position
• They must also be able to perform the essential functions of the job, with or without reasonable accommodation

Physical or mental impairments

• The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities
• Physical impairments include conditions affecting the musculoskeletal, respiratory, cardiovascular, and neurological systems (cerebral palsy, epilepsy, muscular dystrophy)
• Mental impairments include intellectual disabilities, organic brain syndrome, emotional or mental illness, and specific learning disabilities (depression, bipolar disorder, anxiety disorders)

Substantial limitations

• To be considered a disability under the ADA, an impairment must substantially limit one or more major life activities
• Substantial limitation means that the impairment significantly restricts the individual's ability to perform the activity, compared to the general population
• The determination of whether an impairment is substantially limiting is made on a case-by-case basis, considering factors such as the nature, severity, and duration of the impairment

Major life activities

• Major life activities are basic activities that the average person can perform with little or no difficulty
• Examples of major life activities include walking, seeing, hearing, speaking, breathing, learning, working, and caring for oneself
• The ADA Amendments Act of 2008 expanded the definition of major life activities to include major bodily functions, such as functions of the immune system, normal cell growth, and reproductive functions

Reasonable accommodations

Essential functions

• Employers are required to provide reasonable accommodations to qualified individuals with disabilities to enable them to perform the essential functions of their job
• Essential functions are the fundamental job duties that an employee must be able to perform, with or without reasonable accommodation
• Employers should carefully consider which functions are truly essential, as opposed to marginal or incidental duties

Undue hardship

• Employers are not required to provide accommodations that would impose an undue hardship on their business operations
• Undue hardship refers to an action that requires significant difficulty or expense, considering factors such as the nature and cost of the accommodation, the employer's financial resources, and the impact on business operations
• Employers must assess undue hardship on a case-by-case basis and engage in a good-faith effort to find alternative accommodations when possible

Interactive process

• The ADA requires employers to engage in an interactive process with employees who request accommodations
• The interactive process is a collaborative dialogue between the employer and employee to identify the employee's limitations, discuss potential accommodations, and select the most appropriate accommodation
• Employers should document the interactive process, including the accommodations considered and the reasons for the final decision

Prohibited discrimination

Disparate treatment

• Disparate treatment occurs when an employer intentionally treats an individual with a disability less favorably than others because of their disability
• Examples of disparate treatment include refusing to hire, promote, or provide training opportunities to an individual because of their disability
• Employers must base employment decisions on an individual's qualifications and ability to perform the job, rather than their disability

Disparate impact

• Disparate impact discrimination occurs when a neutral policy or practice has a disproportionately negative effect on individuals with disabilities, even if the policy or practice is not intentionally discriminatory
• Examples of policies that may have a disparate impact include requiring a driver's license for a job that does not involve driving or using a written test for a position that does not require reading or writing skills
• Employers must ensure that their policies and practices do not screen out or disadvantage individuals with disabilities, unless the policy or practice is job-related and consistent with business necessity

Retaliation

• The ADA prohibits employers from retaliating against individuals who assert their rights under the law or participate in ADA-related proceedings
• Retaliation can include actions such as termination, demotion, harassment, or any other adverse treatment that discourages an individual from engaging in protected activities
• Employers must not take adverse actions against employees who request accommodations, file discrimination complaints, or participate in investigations or legal proceedings related to the ADA

Harassment

• The ADA prohibits harassment based on an individual's disability
• Disability-based harassment includes unwelcome conduct, such as offensive jokes, slurs, epithets, or physical assaults, that creates a hostile or intimidating work environment
• Employers must take prompt and effective action to prevent and address disability-based harassment, including implementing anti-harassment policies, providing training, and investigating and correcting any harassing behavior

Medical inquiries and exams

• The ADA restricts an employer's ability to make medical inquiries or require medical examinations at different stages of the employment process
• Before making a job offer, employers may not ask about an applicant's disability or require a medical examination, but they may ask about the applicant's ability to perform specific job functions
• After making a conditional job offer, employers may require a medical examination if it is required of all entering employees in the same job category
• During employment, employers may only make medical inquiries or require medical examinations if they are job-related and consistent with business necessity

Enforcement and remedies

EEOC process

• The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADA's employment provisions
• Individuals who believe they have been discriminated against must file a charge of discrimination with the EEOC before filing a lawsuit
• The EEOC investigates charges and may attempt to resolve the dispute through conciliation or mediation
• If the EEOC finds reasonable cause to believe discrimination has occurred, it may file a lawsuit on behalf of the individual or issue a right-to-sue letter, allowing the individual to file a private lawsuit

Private lawsuits

• Individuals with disabilities who have been discriminated against in employment may file a private lawsuit in federal court
• Before filing a lawsuit, individuals must exhaust their administrative remedies by filing a charge with the EEOC and receiving a right-to-sue letter
• Lawsuits must be filed within 90 days of receiving the right-to-sue letter

Compensatory and punitive damages

• Individuals who prevail in ADA employment discrimination lawsuits may be entitled to compensatory and punitive damages
• Compensatory damages cover out-of-pocket expenses, emotional distress, and other non-monetary losses resulting from the discrimination
• Punitive damages may be awarded in cases of intentional discrimination or reckless disregard for the individual's rights, to punish the employer and deter future discrimination
• The amount of compensatory and punitive damages is subject to statutory caps based on the employer's size

Attorney's fees

• Prevailing plaintiffs in ADA employment discrimination lawsuits may be awarded reasonable attorney's fees and litigation expenses
• The court determines the amount of attorney's fees based on factors such as the time and labor required, the novelty and difficulty of the case, and the skills required to properly litigate the case
• The availability of attorney's fees encourages private enforcement of the ADA and ensures that individuals with disabilities have access to legal representation

Interplay with other laws

Family and Medical Leave Act

• The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid, job-protected leave for certain medical and family reasons, including their own serious health condition or to care for a family member with a serious health condition
• Employees with disabilities may be entitled to leave under both the ADA and FMLA, and employers must comply with the requirements of both laws
• The ADA's reasonable accommodation obligation may require employers to provide additional leave beyond the FMLA's 12-week entitlement, if doing so does not impose an undue hardship

Workers' compensation

• Workers' compensation laws provide benefits to employees who are injured or become ill in the course and scope of their employment
• Employees with work-related disabilities may be entitled to both workers' compensation benefits and reasonable accommodations under the ADA
• Employers must not discriminate against employees who have filed workers' compensation claims or treat them less favorably because of their work-related injuries or illnesses

State disability laws

• Many states have their own disability discrimination laws that provide protections similar to or greater than those provided by the ADA
• Some state laws may apply to smaller employers not covered by the ADA or may offer additional protections or remedies
• Employers must comply with both federal and state disability discrimination laws, following the law that provides the greatest protection to employees

Best practices for compliance

Policies and procedures

• Employers should develop and implement clear policies and procedures related to disability discrimination, reasonable accommodations, and the interactive process
• These policies should be included in employee handbooks, posted in the workplace, and communicated to all employees
• Policies should outline the process for requesting accommodations, the employer's commitment to engaging in the interactive process, and the prohibition against disability-based discrimination and retaliation

Training for managers

• Employers should provide regular training to managers and supervisors on their responsibilities under the ADA
• Training should cover topics such as recognizing and responding to accommodation requests, engaging in the interactive process, maintaining confidentiality of medical information, and preventing disability-based harassment and discrimination
• Managers should be trained to identify potential ADA issues and to seek guidance from human resources or legal counsel when necessary

Documenting accommodation efforts

• Employers should maintain thorough documentation of their efforts to provide reasonable accommodations to employees with disabilities
• This documentation should include information about the employee's request, the interactive process, the accommodations considered, and the reasons for the final decision
• Proper documentation can help demonstrate the employer's good-faith efforts to comply with the ADA and can serve as valuable evidence in the event of a discrimination claim or lawsuit

Confidentiality of medical information

• Employers must maintain the confidentiality of employees' medical information obtained through the accommodation process or other means
• Medical information must be kept in separate, confidential medical files, apart from the employee's general personnel file
• Access to medical information should be limited to those with a legitimate need to know, such as human resources personnel and managers directly involved in the accommodation process
• Employers must not disclose an employee's medical information to coworkers, customers, or other third parties without the employee's express permission