Instructor Joy Cleaver
December 2, 1996
There may be as many as one thousand different disabilities that affect over forty-three million Americans. Of all the laws and regulations governing the treatment of those Americans the American with Disabilities Act (ADA) is the most recent major law. It was passed in 1990 and although it is spelled out in a technical ADA manual that is several hundred pages in length. Two of ADA's two major sections, Titles II and III concern the operation of state and local government and places of public accommodation. They require new public and commercial facilities to be accessible to people with disabilities. Modifications to existing facilities need to be made only if the cost is "readily achievable" and does not cause an undue financial or administrative burden. This essay will concentrate on Title I, the employment aspects of the law. This section forbids employment discrimination against people with disabilities who are able to perform the essential functions of the job with or without reasonable accommodation.
This definition poses three main questions: Who is considered disabled? What is an essential function of a job? What is considered Reasonable Accommodation?
To be protected under the ADA an individual must have a physical or mental impairment that substantially affects one or more major life activities. The impairment may not be due to environmental, cultural, or economic disadvantages. For example a person who cannot read because they have dyslexia is considered disabled but a person who cannot read because they dropped out of school is not. In addition persons who are perceived to be disabled are protected by ADA. For example, if a person were to suffer a heart attack, when he tries to return to work the boss might be scared the workload will be too much and refuse to let him come back. The employer would be in violation of the ADA because he perceives the employee as disabled and is discriminating based on that perception. Two classes that are explicitly excluded from protection under ADA are those individuals whose current use of alcohol or illegal drug is affecting their job performance. However those who are recovering from their former use of either alcohol or drugs are covered.
The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing the ADA and other EEO laws that apply to most public and private employers, separates job duties into two categories: essential and marginal. Essential functions are those duties that each person in a certain position must do or must be able to do to be an effective employee. Marginal functions are duties that are required of only some employees or are not critical to job performance. The ADA requires that employers make decisions about applicants with disabilities solely on the basis of
their ability to perform essential job functions.
Reasonable accommodations are the actions taken to accommodate the known disabilities of applicants or employees so that disabled persons can enjoy equal employment opportunities. Since it is not generally acceptable for a potential employer to ask about a disability or conduct test such as HIV test to look for disabilities, it is the responsibility of the applicant or employee to inform the employer of the disability and needed accommodation. At that point the employer must make "reasonable accommodation for the known disability. An employer may not deny employment in order to avoid providing the reasonable accommodation unless it would cause an undue hardship. Even then the applicant or employee should be given the option of providing accommodation himself. The employment provisions began to be enforced for business with 25 or more employees on July 26, 1992. This affected approximately...