Guest Author - Monica J. Foster
The Americans with Disabilities Act of 1990 (ADA) was signed on July 26, 1990 by President George H. W. Bush. The ADA prohibits discrimination based on disability.
Whatís a disability? A disability is "a physical or mental impairment that substantially limits a major life activity." Whether any particular condition is considered a disability is individually determined. Certain conditions are excluded as disabilities, such as current substance abusers. A ďmajor life activityĒ includes hearing, seeing, speaking, walking, self care, breathing, performing manual tasks, learning or working.
Title I of the ADA covers unfairness in employment practices, application procedures, hiring, firing, advancement, compensation, training, recruitment, posting positions, tenure, layoff, leave time, fringe benefits, all employment-related activities, as well as other terms, conditions, and privileges of employment.
Title I is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), and State and local civil rights enforcement agencies that work with EEOC. Discrimination against people with disabilities is illegal if practiced by private employers, state and local governments, employment agencies, labor organizations, and labor-management committees. This part enforced by the EEOC prohibits job discrimination by all employers, including State and local government employers, with 25 or more employees after July 26, 1992, and all employers, including State and local government employers, with 15 or more employees after July 26, 1994.
If you're qualified to do a job and have a disability, the ADA protects you from discrimination on the basis of disability. You must be able to perform essential functions of a job, with or without reasonable accommodation, in order to be protected. You must satisfy employer requirements, such as education, employment experience, skills or licenses. You must be able to perform essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties. An employer canít refuse to hire you because your disability prevents you from performing duties that arenít essential to the job.
Reasonable accommodation is any change or adjustment to a job or work environment allowing a qualified applicant or employee with a disability to participate in the application process, to perform essential functions of a job, or enjoy benefits and privileges of employment equal to employees without disabilities, such as going to a breakroom or participating in work meetings.
For example, reasonable accommodation may include providing, moving or modifying equipment, job restructuring, part-time or modified work schedules, reassignment to vacant positions, adjusting or modifying exams, training materials, or policies, providing readers and interpreters, and making the workplace accessible and usable for people with disabilities.
If making an existing facility accessible causes undue hardship, an employer must provide a comparable facility so a person with a disability can enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless doing so also causes undue hardship. If costs providing needed accommodations would make undue hardship, the employee must be given the choice of providing the accommodation or paying for a portion of the accommodation causing undue hardship.
Itís unlawful to discriminate in employment practices like recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, lay off, leave and other related activities. Itís also wrong for an employer to react against you for asserting your rights under the ADA. The Act also protects you if you're a victim of discrimination because of your family, business, social or other relationships, or associations with an individual with a disability. If youíre applying for a job, an employer canít ask you if you have a disability or ask about the nature or severity of the disability. An employer can, however, ask if you can perform duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to demonstrate how, with or without a reasonable accommodation, youíll perform the job.
An employer canít require you to take a medical exam before youíre offered a job. Following a job offer, an employer can condition the offer on your passing required medical exams, but only if all employees for that job category must take the same exam. However, an employer canít reject you because of information about your disability revealed by the medical exam, unless reasons for rejection are job-related and necessary for the employer's business.
Your employer may conduct voluntary medical exams as part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that administer such laws. The results must be kept confidential, and maintained in separate files.
Anyone currently using drugs illegally isnít protected by the ADA and may be denied employment or fired. The ADA doesnít prevent employers from testing applicants or employees for current illegal drug use.
If youíve been discriminated against in employment on the basis of disability, you should contact the EEOC. A complaint generally must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file if there's a State or local law providing discrimination relief on the basis of disability. However, to protect yourself, make contact quickly. Contact any EEOC field office throughout the U.S. if youíve been discriminated against. Youíre entitled to a solution that places you in the job you would have been in if the discrimination hadn't happened. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment Ė maybe even legal fees.
The ADA permits employers to refuse to hire an individual if he or she poses a direct threat to health or safety of his or herself, or others. A direct threat means significant risk of substantial harm. Direct threat must be based on objective, factual evidence regarding an individual's present ability to work essential functions. An employer canít refuse to hire you because of a slightly increased risk or fears of risk later. The employer must consider if risk can be eliminated or reduced to acceptable levels with a reasonable accommodation.
The ADA only requires an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees and does not affect pre-existing condition clauses. People with AIDS and HIV are also covered under the ADA.
BUTTERFLYWHEEL℠ Motivation, Advocacy & Consulting, at http://www.butterflywheel.com, is available for professional training and to groups of people with disabilities on Title I.