On July 26, 1990, President George Bush signed into law the Americans with Disabilities Act (ADA). This act has been recognized by organizations across the United States as the most sweeping civil rights legislation since the Civil Rights Act of 1964. Organizations must comply with the legislation that became effective for employers with 25 or more employees on July 26, 1992, and effective for employers with 15 or more on July 26, 1994.
The intent of the Americans with Disabilities Act is to prevent discrimination against qualified people with disabilities in employment, public services, transportation, public accommodations, and telecommunication services.
What the ADA means to organizations and their managers is that they can no longer screen out individuals with disabilities in the hiring process, nor can they discriminate in any area of employment, including compensation, promotions, benefits, or firing. Organizations will no longer be able to conduct pre-employment inquiries into the nature of an applicant's disability. Organizations must be aware of physical barriers into their work environment, as well as provide up-to-date, relevant job descriptions to their workers.
1. Title I, Employment. Its purpose is to prohibit discrimination in employment against qualified individuals.
2. Title II, Public Services. This title prohibits discrimination in programs run by public entities such as state and local governments or agencies, including public transportation.
3. Title III, Public Accommodations and Commercial Facilities. Private businesses open to the public (such customer counters) must make sure that people with disabilities are able to participate in the goods and services they offer. This includes making sure that all such buildings, new and existing, are accessible to individuals with disabilities.
4. Title IV, Telecommunications. Requires telephone companies to make relay services available for hearing- and speech-impaired people.
5. Title V, Miscellaneous. This 'catch-all' section includes a variety of technical provisions, including a provision that the ADA does not override state laws that prohibit discrimination against individuals with disabilities.
B. ADA Title I, Employment
1. Three Steps to Hire
1. A person is qualified for a job if he or she can perform the essential functions.
2. If a person cannot perform an essential function, the employer must consider whether the person could do the job with some reasonable accommodation.
3. The employer must provide the accommodation unless it would be an undue hardship.
2. Employment Issues
The following is a list of more common issues related to employment and disability including some possible accommodations and considerations.
a. Accommodating Application forms:
b. Accommodating Interviews:
c. Accommodating Training:
d. Promotions:
1. Revise, update or develop job descriptions.
These are essential in demonstrating what the essential functions of a specific job are. Ensure that the essential functions are Basic, Necessary and Integral.
2. Review job standards criteria.
Utilize only those standards which are in fact essential to completing a job. Criteria such as lifting, hearing or seeing often have the effect of eliminating individuals with disabilities from being considered for employment opportunities.
3. Review PRE and POST employment medical examination policies.
Remember that medical examinations are prohibited until after you have made a job offer to the applicant. There are no exceptions. Employment can be contingent on the applicant's passing the medical examination and you must require medical examinations of all applicants. You cannot selectively give examinations to some and not to others.
4. Review, revise or develop applications and other forms.
If a question is illegal to ask in an interview, then it is also illegal to pose the question in writing. Any question which refers to an applicant's physical or mental condition prior to a job offer could result in a violation of the ADA.
5. Train your Human Resource Staff, especially your interviewers.
Well trained interviewers are better prepared to make successful matches between qualified applicants and job openings. Their enhanced understanding of disability and ADA requirements will help to facilitate Title I compliance.
6. Avoid making medical judgments.
Decisions must be made based on the person's ability to perform essential functions. They cannot be based on perceptions or beliefs that the individual with a disability will be unable to do the job.
7. Centralize your applicant screening system.
By using consistent standards and practices with all managers, supervisors, and HR personnel with this responsibility, you will increase the likelihood of successful compliance with the Title I provisions.
8. Review, Revise or Develop a policy for maintaining and disclosing confidential medical information. Separate, confidential files containing medical records should be developed and maintained.
9. Modify testing procedures.
Examine current testing procedures to see if modification is needed. Ensure access is in place for all applicants or candidates for promotion.
10.Train all managers and supervisors in reasonable accommodations.
Managers and supervisors are a direct line link to the successful integration of persons with disabilities. Their knowledge and expertise combined with the worker's involvement in the process will make for positive and impactful changes. Open and clear communication is also essential for the process to be successful.
Source: Title I of the Americans with Disabilities Act: A Handbook for Employers The Career Initiatives Project, Keene State College, Keene, NH
C. Important ADA Definitions
1. Qualified Candidate: Can perform the essential functions of the job with or without reasonable accommodation. The person has the requisite education, training, licenses, background and experience to do the job.
2. Essential function: What an individual must be able to do to hold a specific position, with or without accommodation. Must be BASIC, INTEGRAL and NECESSARY.
3. Reasonable accommodation: Making a change, through technology, time, etc., so that qualified persons with disability can participate.
a. Equal opportunity in application process.
b. Equal chance for a qualified individual to perform essential functions.
c. Equal benefits and privileges of employment.
4. Undue hardship: The accommodation(s) would be unduly costly, extensive, substantial, disruptive, or would cause a fundamental change of goods or services.
5. Disability can mean any of the following:
a. A physical or mental impairment that substantially limits one or more major life activities (including work).
Examples of Major Life Activities:
* Seeing; hearing; speaking;
* Breathing; walking; learning;
*Ability to work; performing manual tasks;
* Caring for self
b. A record of such impairment.
c. Being regarded as having such an impairment.
6. Those Excluded:
a. Current use of illegal drugs, if the employer acts on that basis;
b. Homosexuality and bisexuality;
c. Transvestitism, transsexuals, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting form physical impairments, or other sexual behavior disorders;
d. Compulsive gambling, kleptomania, or pyromania; and
e. Psychoactive substance use disorders from current illegal drug use.
What are Reasonable Accommodations?
Reasonable Accommodations are changes to a job or piece of equipment that enable a person with a disability to perform the essential functions of that particular job. Essentially, they provide individuals who happen to have disabilities with an equal opportunity to compete in the workplace . . . and shop in the marketplace. This topic discussed in greater depth in the "Reasonable Accommodation" section of this handbook.