Americans with Disabilities Act as Amended

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Americans with Disabilities Act as Amended

• PRESENTED B Y
• THE IOWA CIVIL RIGHTS COMMISSION

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Enactment and effective date

• The ADA is a civil rights law
• that was enacted on July 26, 1990.

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ADA Fact

• In 1990, Congress estimated 43 million Americans
  had one or more physical or mental disabilities.
• In the mid-90s that figure was revised to 49
  million Americans.
• Today the estimate is in excess of 53 million

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ADA Amendments Act of 2008

• In 2008 the ADA was amended to get back to its
  original intent of a broad scope of protection.
  
• ADA Amendments Act makes it easier for a person
  seeking protection under the ADA to establish
  that he/she has a disability within the meaning
  of the statute

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The Americans with Disabilities Act

• Title I Employment
• Title II Public Services
• Title III Public Accommodations
• Title IV Telecommunications
• Title V Miscellaneous

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Title I - Employment

• Title I of the ADA prohibits discrimination
  against persons with disabilities in employment
  by businesses having 15 or more employees, or by
  State and local governments. It also applies to
  employment agencies and to labor organizations.

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ADA Fact Iowa

• Iowa prohibits discrimination in employment by
  businesses having 4 or more employees, not 15

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Scope of ADA

• In employment, the ADA prohibits
  discrimination against qualified individuals with
  disabilities in public and private sector
  employment.
• This includes a requirement that those employers
  covered under the Act make reasonable
  accommodations.

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Your knowledge of the ADA

• Quick Quiz
• 5 Questions

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ADA Quiz Multiple Choice

• What percentage of working-age individuals with
  disabilities are unemployed?
• A. 25
• B. 3
• C. 50
• D. 67

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Answer D

• 67 of working-age individuals
• with disabilities are unemployed.

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Question 2

• If you live to the age of 70, the chance of you
  having a disability is
• A. 12
• B. 28
• C. 55
• D. 82

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Answer D

• There is an 82 chance of having a disability if
  you live to age 70.

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Question 3

• Approximately 88 of accommodations for people
  with disabilities will cost
• A. Under 1,000
• B. Between 1,000 - 1,999
• C. Between 2,000 - 5,000
• D. More than business can afford

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Answer A

• 88 of accommodations
• for people with disabilities
• will cost under 1,000

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Reasonable Accommodations

• Average Cost of Job Accommodations
• 31 of all accommodations suggested at no cost
• 19 cost between 1 and 50
• 19 cost between 50 and 500
• 19 cost between 500 and 1000
• 11 cost between 1000 and 5000
• gt1 cost more than 5000
• Source Job Accommodation Network Survey

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Question 4 True/False

• The ADA is an affirmative action law
• for individuals with disabilities.

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Answer False

• The ADA provides equal access to the employment
  process, but does not require employers to
  proactively hire persons with disabilities.

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Question 5 True or False

• The employment provisions of the ADA are
  applicable to entities, organizations and private
  businesses that employ 15 or more employees (and
  to all Title II entities regardless of size).
• state and local governments

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Answer True

• All businesses with 15 or more employees are
  covered by the ADA.
• State laws may cover smaller businesses as well.

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Who is considered a person with disability?

• The ADA defines a person
• with a disability using a
• 3-prong approach.

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First Prong

• Person with a physical or mental impairment
  that substantially limits one or more major life
  activities

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Physical Impairment

• Any physiological disorder or condition,
  cosmetic disfigurement, or anatomical loss
  affecting one or more of the following body
  systems neurological musculoskeletal, special
  sense organs, respiratory (including speech
  organs), cardiovascular, reproductive, digestive,
  genitourinary, hemic and lymphatic, skin and
  endocrine
• (This list is non-exhaustive)

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Mental Impairment

• Any mental or psychological disorder, such as
  mental retardation, organic brain syndrome,
  emotional or mental illness, and specific
  learning disabilities.
• (This list is non-exhaustive)

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Substantially Limits

• Means the major life activity is restricted as to
  the conditions, manner or duration under which it
  can be performed in comparison to most people.
• Previously the standard was significantly
  restricted, but the ADAAA redefines
  substantially limits as materially restricts.
  This is a new term that is not otherwise defined
  in the legislation.

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Substantially Limits (cont)

• Under the Amendments Act, the term substantially
  limits requires a lower degree of functional
  limitation than the standard previously applied
  by courts.
• An impairment does not need to prevent or
  significantly restrict a major life activity to
  be considered substantially limiting.

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Substantially limits (cont)

• The term substantially limits is to be
  construed broadly in favor of expansive coverage
  to the maximum extent permitted by the terms of
  the ADA.
• As was true prior to the Amendments Act, the
  determination of whether an impairment
  substantially limits a major life activity
  requires an individualized assessment.

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Combination of Impairments

• An individual may have two or more
  impairments, neither of which alone constitute a
  disability, but taken together may be considered
  disabling.

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Three factors to consider

• The nature and severity of the condition
• How long it will last or is expected to last and
• Its permanent or long term impact, or expected
  impact.

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Temporary Impairments

• May or may not be disabilities.
• The question is answered by looking at the
  extent, duration, and impact of the impairment.

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Major Life Activities Include

• Breathing
• Learning
• Working
• Concentrating
• Communicating
• Thinking
• Learning
• Working
• Lifting
• Bending

• Caring for oneself
• Performing manual tasks
• Walking
• Seeing
• Hearing
• Speaking
• Standing
• Eating
• Reading

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Bodily Functions

• The ADA Amendments Act
• has clarified that major life activities
• is expanded to include
• Bodily Functions.

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Major Body Functions include

• Functions of the immune system
• Normal cell growth
• Digestive function
• Bowel function
• Bladder function
• Brain function

• Functions of the
• respiratory system
• Circulatory function
• Neurological function
• Endocrine function
• Reproductive function

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Mitigating Measures
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What are they?

• Mitigating measures are measures that eliminate
  or reduce the symptoms or impact of an
  impairment.
• Examples include medication, medical equipment
  devices, prosthetic limbs, hearing aids,
  mobility devices, assistive technology, low
  vision devices (devices that magnify a visual
  image).

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Change of Rules

• The Amendments Act of 2008 changed the rules
  on mitigating measures.
• Substantial limitation is now assessed without
  regard to mitigating measures other than contacts
  or corrective lenses

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Second Prong

• A person with
• a record of having a disability

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For Example

• A history of mental illness
• Heart disease
• Cancer
• Muscular dystrophy
• Epilepsy
• Multiple sclerosis

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Episodic or in Remission

• Congress stated in the Amendments Act that an
  impairment that is episodic or in remission is a
  disability if it would substantially limit a
  major life activity when active.

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Third Prong

• Regarded as having an impairment
• An individual meets the requirement of being
  regarded as having an impairment if the
  individual establishes that he or she has been
  subjected to a prohibited action because of an
  actual or perceived impairment that is not both
  transitory and minor regardless of whether or
  not the impairment limits or is perceived to
  limit a major life activity.

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In other words

• A person who is not substantially limited but is
  treated as such
• A person whose substantial limitation is only the
  result of the attitudes of others
• Someone who has no impairment but is treated or
  perceived as having an impairment that is not
  transitory and minor.

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Exclusions

• A person who currently illegally uses drugs is
  not protected by the ADA when the covered entity
  acts on the basis of such use alone.
• However, an individual who is engaged in or has
  completed drug rehabilitation and is no longer
  using drugs is protected under the ADA.

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Some Important Distinctions

• The use of a drug must be illegal to be exempt
  from the definition of disability not the
  substance itself.
• Addiction is covered under the definition of
  disability but not current illegal use.
• If a person was addicted in the past or is
  perceived as addicted they would be covered.
• Casual users in the past are not covered.

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What about alcoholism?

• People who abuse alcohol are considered disabled
  even if they are currently using. A person who
  is an alcoholic is considered a person with a
  disability under the ADA.

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Other Exclusions

• Homosexuality and Bisexuality
• Transvestitism, transsexuals, pedophilia,
  exhibitionism, voyeurism, gender identity
  disorders not resulting from physical
  impairments, or other sexual behavioral
  disorders
• Compulsive gambling, kleptomania, or pyromania
  or
• Psychoactive substance use disorders resulting
  from current illegal use of drugs

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Association

• The ADA also protects anyone who associates with
  someone who has a disability as defined above.
• An entity may not discriminate against an
  individual or entities because of their
  relationship with a person with a disability

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Retaliation or Coercion

• Retaliation or coercion
• is prohibited under the ADA

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What employment issues are covered?

• Recruitment
• Pay
• Hiring
• Promotion
• Job Assignment

• Training
• Leave
• Lay-off
• Benefits

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Who is a Qualified Individual?

• Individual who satisfies the required work,
  experience, education and other job-related
  requirements of the employment position such
  individual holds or desires, and who, with or
  without reasonable accommodation can perform the
  essential functions of such position.

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Steps to Determine Whether an Individual is
Qualified

• Determine if the individual meets the necessary
  prerequisites for the job and
• Determine if the individual can perform the
  essential functions of the job, with or without
  reasonable accommodation

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Essential Functions

• The ADA requires that the employer focus on
  the essential functions of a job to determine
  whether a person with a disability is qualified.

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Essential Job Functions

• These are the fundamental job duties of the
  employment position. They do not include marginal
  functions.

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Determining the Essential Job Functions

• Focus on the purpose of the function and the
  result to be accomplished rather than on the
  manner in which the function presently is
  performed

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What to look for

• Employers judgment as to what is essential
• Written job description
• Amount of time spent on the task
• Terms of a bargaining agreement
• Consequences of not performing the task
• Work experience of current or former incumbents

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Essential Job Functions Questions to Ask

• Are other employees in the position actually
  required to perform the function?
• Would removing that function fundamentally change
  the job?
• Does the position exist to perform the function?

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Questions (Cont)

• What is the number of other employees available
  to perform the function, or among whom the
  function can be distributed?
• What is the degree of expertise or skill required
  to perform the function

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What about reasonable accommodations?

• Employers must make reasonable accommodations to
  known physical or mental limitations of a
  qualified applicant or employee with a disability
  unless the employer can demonstrate that the
  accommodation would be an undue hardship

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Definition of Reasonable Accommodation

• Any modification or adjustment to a job, an
  employment practice, or the work environment that
  makes it possible for an individual with a
  disability to enjoy an equal employment
  opportunity.

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Required in Three Areas

• Ensure equal opportunity in application process
• Enable qualified individual with a disability to
  perform the essential functions of a job and
• To enable an employee with a disability to enjoy
  equal benefits and privileges of employment.

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ALSO

• Social activities or
• any other term, privilege or condition of
  employment.

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What are some forms of reasonable accommodation?

• Job restructuring
• Modifying work schedules
• Making facilities accessible
• Acquiring or modifying equipment or devices
• Hiring readers, interpreters and assistants
• Reassignment to a vacant position

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ADA FACT

• Personal items are generally not required as
  forms of reasonable accommodation

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Lets talk about undue hardship

• It is the responsibility of the employer to
  provide a reasonable accommodation unless it
  would be an undue hardship.
• Undue hardship is defined as an action requiring
  significant difficulty or expense, extensive,
  substantial disruption or something that would
  fundamentally alter the nature of employment.

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Do I have to hire an applicant with a disability
even if they are not qualified?

• No. A qualified individual with a disability
  is one who satisfies the requisite skill,
  experience, education, and other job-related
  requirements of the position and can perform the
  essential functions of the job with or without
  reasonable accommodation.

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Recruitment and Hiring

• ADA does not require employers to undertake
  special activities to recruit people with
  disabilities
• However, recruitment activities that tend to
  screen out individuals with disabilities may
  violate the ADA

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Recruitment and Hiring

• Pre-offer inquiries about a disability, or about
  the nature of severity of a disability on an
  application, forms in a job interview, or in
  background or reference checks are a problem
  under the ADA.

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Pre-Employment Testing

• ADA has two requirements in relation to
  tests
• 1. If a test screens out or tends to screen out
  an individual with a disability or a class of
  such individuals on the basis of a disability, it
  must be job-related and consistent with a
  business necessity and
• 2. There must be accommodations in administering
  testing.

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Medical Examinations

• An employer may not make medical inquires or
  conduct a medical examination until after a job
  offer has been made.
• A job offer may be conditioned on the results of
  a medical exam or inquiry only if it is required
  for all entering employees in similar positions.

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What about Safety Issues?

• An employer may require that an individual not
  pose a direct threat to the health and safety of
  others.

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Conditional Job Offer

• If a conditional offer is withdrawn, employer
  must show
• 1.Reasons for the exclusion are job-related and
  consistent with business necessity, or that the
  person is being excluded to avoid a direct
  threat and that
• 2. No reasonable accommodation was available that
  would enable this person to perform the essential
  job functions without significant risk to health
  or safety, or that such an accommodation would
  cause undue hardship.

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Post-employment Medical Exams

• Must be job-related and justified by business
  necessity.
• May be conducted when there is evidence of a job
  performance or safety problem.
• May conduct to determine fitness to perform a
  particular job.
• May perform voluntary exams that are part of
  employee health programs.

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Results of Medical Exams

• All information gathered must be collected and
  maintained on separate forms, in separate medical
  files and must be treated as a confidential
  medical record. Medical information should NOT be
  put in the employees personnel file.

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Conclusion

• An employer or other covered entity may not
  limit, segregate or classify an individual with a
  disability, on the basis of the disability, in a
  manner that adversely affects the individuals
  employment.

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ADA Technical Assistance

• Access Board
• Technical Assistance 800-872-2253
• Department of Justice
• Technical Assistance 800-514-0301
• Equal Employment Opportunity Commission
• Technical Assistance 800-669-4000
• Publications 800-669-3362

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Iowa Civil Rights Commission

• Grimes State Office Building
• 400 E. 14th Street
• Des Moines, Iowa 50319
• 515-281-4121
• 800-457-4416
• FAX [phone]
• http//www.state.ia.us/government/crc

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Employer Rights Responsibilities

• Americans With Disabilities Act
• as Amended
• (ADAAA)
• Presented by
• The Iowa Civil Rights Commission