Americans with Disabilities Act: ADA; Equal Employment Opportunity Commission: EEOC Page 1 of 4

EMPLOYMENT ASPECTS OF THE

AMERICANS WITH DISABILITIES ACT
by
Mark R. Waterfill

As of July 26, 1992, the date Title I of the Americans with Disabilities Act (the
"ADA") went into effect, employers with 25 or more employees are required to
comply with new standards at all stages of the employment process (for
employers with 15-24 employees, Title I went into effect on July 26, 1994).
Exempted from coverage are the federal government and bona fide private
clubs.

The ADA defines "disability" broadly to include any physical or mental

impairment that substantially limits one or more of the major life activities of an
individual, a record of such impairment, or being regarded as having such an
impairment. Examples of what may be considered a "disability" include
everything from asthma to manic-depression to AIDS to sensitivity to cigarette
smoke. Exempted from coverage by the ADA's definition of "disability" are
persons currently using illegal drugs, homosexuality or bisexuality, and other
specific conditions including some gender identifying disorders. The ADA
specifically allows an employer to test for illegal drug use by an applicant.

The Equal Employment Opportunity Commission (the "EEOC") list "major life
activities" as including, but not limited to, seeing, hearing, speaking, breathing,
walking, talking, learning, performing manual tasks, taking care of one's self
and working. In determining whether a person's disability impairs him or her to
the extent that a major life activity is substantially limited, three factors must be
considered: (1) the nature and severity of the impairment; (2) the duration or
anticipated duration of the impairment; and (3) the permanency or long-term
impact of the impairment.

While it is important for covered employers to implement policies in compliance

with the ADA as quickly as possible, of immediate concern to employers should
be the revamping of employment applications and the educating of interviewers
as to what questions they may or may not ask an applicant during an interview.
In conjunction with these two concerns, job descriptions must be rewritten to
identify the essential and marginal functions of each position in order to
facilitate the implementing of the ADA into the workplace more smoothly.

Applications and Interviews

The employer should review its application process to determine whether its

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current procedure allows any person with a disability to obtain information as to

job availability, to obtain and complete job applications, and to be interviewed.
The employer must insure that each applicant is tested on an equal basis for
the available position despite any disability an applicant may have. This means
that the employer just make reasonable accommodations to take into account
an applicant's disability. For example, if a person is deaf, the employer should
use a signing translator during a oral interview. If a testing procedure tends to
screen out an applicant with a disability because of the disability, the test must
be job related and a business necessity. During the application process, the
employer cannot conduct medical examinations or make inquiries as to whether
an applicant has a disability, or the severity of any disability. Once a job offer
has been made to an applicant, the employer may require a medical
examination as a condition of accepting the position. However, if the applicant
is not hired because he or she did not pass the exam, the employer must show
that the reason is job related and for a business necessity and that the disability
cannot be overcome by reasonable accommodation.

"Reasonable accommodation" by employers of the disabilities of applicants and

employees is a key ingredient of the ADA's requirements through all stages of
the employment process. However it is not the employers duty to discover
whether an applicant has a disability; once the employer has notified applicants
of their entitlement to accommodation for any disability, the applicant must take
the initiative to inform the employer of the disability and to request an
accommodation. The employer may ask the applicant for documentation of the
disability after the applicant discloses that he or she has a disability. But the
employer may not, under the ADA, ask if the applicant is disabled. The
employer may only explain the essential functions of the position and then ask
the applicant whether he or she is capable of performing these essential job
functions, and to describe or demonstrate, with or without reasonable
accommodation, how he or she would perform those functions.

Job Descriptions

In determining whether a person with a "disability" is "qualified" ("qualified" is

defined as being able to perform the essential functions of a job with or without
reasonable accommodation), it is helpful to have a job description which
supplies the necessary prerequisites of education, skills, licensing, etc., and
lists the essential functions which the position requires a person to perform. A
well thought out job description prepared prior to advertising an opening will
also be taken as evidence of the essential functions of a job by the EEOC or a
court.

If an applicant cannot meet one or more of the prerequisites listed in the job
description due to a disability, the employer must show that the prerequisite is
job related and a business necessity. If the applicant is unable to perform an
essential function of the position, the employer should review the position to be
sure that the function is a fundamental part of the position. The employer may
also determine that the applicant or others would be at significant risk of
substantial harm if the applicant performed the particular functions of the job in
question.

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If a disabled applicant is turned down for either of these reasons, the employer
must be careful to analyze, and document its analysis of, all aspects of the
problem in relation to the position. The employer should obtain objective
evidence of the significant risk or direct threat of substantial harm to the
applicant or others. The employer should also thoroughly discuss the problem
with the applicant, particularly to determine whether the applicant has any
suggestions as to what actions could reasonably accommodate his or her
disability which the employer has not yet considered.

In making the determination whether a task is essential or fundamental to a

position, several factors should be considered: (1) whether the position exists
for the purpose of performing that function; (2) whether the function could be
distributed among other available employees; (3) whether the function is highly
specialized such that the person holding the position is hired for his or her
expertise or ability to perform the function; and (4) whether the function must be
performed in a particular manner. Depending on the position, other factors, may
also need to be considered.

Based on the EEOC's Technical Assistance Manual, an employer should first

identify through careful analysis, including interviews with current employees,
the supervisor, and others who would be knowledgeable, what is actually
occurring in the job. The employer should discuss its findings with the current
employee, the supervisor and other interested parties and reach agreement on
what functions are, and should be, occurring in the job. Of this list, the employer
should then determine which functions are essential to a job, and what basic
physical and mental skills are required to perform these functions.

Nonessential functions may be delegable to other employees if a disabled

employee cannot perform them because of his or her disability. The Technical
Assistance Manual also recommends the physical location and limitations of
the work site, the elements to which the employee is exposed, and the mental
challenges of the job be identified. Once an accurate and thorough job
description has been put together, an employer should be able to identify more
readily what can be done to "reasonably accommodate" applicants or
employees with disabilities and to avoid litigation due to violations of the ADA.

The ADA Complaint Process

The ADA complaint process is the same as for claims of discrimination due to
race, sex, age or religion. A charge of discrimination can be filed with the
EEOC, which will then investigate the matter. An employer can be liable for
back and front pay, injunctive relief, compensatory damages (pain and
suffering, emotional distress), attorney's fees, and other costs of litigation. Also,
employers can be held liable for from $50,000 to $300,000 in punitive
damages, depending upon the number of persons employed. The complaining
party may also file a federal court lawsuit and seek a jury trial.

The process of complying with the ADA's requirements will be a complicated

process fraught with uncertainty and risks. It is important that an employer
comply with the ADA in all areas of the employment process. In doing so, the

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employer risks fewer problems in meeting ADA requirements in its future

relationships with its employees and job applicants.

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Mark R. Waterfill is an attorney with the Indianapolis law firm of Dann Pecar
Newman & Kleiman. Mark can be reached at (317) 632-3232 or by e-mail at
mwaterfill@dannpecar.com
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