Qualified Individual with Disability John Patrick Evans, Certified Rehabilitation Counselor

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Qualified Individual with DisabilityJohn
Patrick Evans,Certified Rehabilitation Counselor
Corporate ConsultantWashington State
Department Social and Health ServicesDivision of
Vocational RehabilitationEvansJP_at_dshs.wa.gov200
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Qualified Individual with Disability

• To be protected by the ADA, a person must not
  only be an individual with a disability, but must
  be qualified. An employer is not required to hire
  or retain an individual who is not qualified to
  perform a job.

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Qualified Individual with Disability

• An individual with a disability who
  satisfies the requisite skill, experience,
  education and other job related
  requirements of the position the person holds
  or desires and who, with or without reasonable
  accommodation, can perform the essential
  functions of such a position.

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Qualified Individual with Disability

• Employers are not prohibited from
  establishing job-related qualification standards,
  including education, skills, work experience, and
  physical and mental standards necessary for job
  performance, health and safety.

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Qualified Individual with Disability

• Whether the person with a
  disability is qualified
  requires a two-step process.
• 1. Determine whether the individual is
  otherwise qualified and therefore satisfies
  the requisites of the job such as education,
  experience, skills, and other job-related
  requirements.
• 2. Determine if the individual can
• (i) perform the essential functions of
  the job,
• (ii) with or without reasonable
  accommodation.

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Qualified Individual with Disability

• If an individual with a disability
  cannot perform a marginal function of a job
  because of a disability, an employer may base a
  hiring decision only on the individuals ability
  to perform the essential functions of the job,
  with or without reasonable accommodation.

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Qualified Individual with Disability

• The determination of a persons abilities to
  perform essential functions must be based on
  the persons capabilities at the time of the
  employment decision, not on speculation of the
  employees future capabilities.

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Qualified Individual with Disability

• If a qualification standard, test or other
  selection criterion operates to screen out an
  individual with a disability, or a class of such
  individuals on the basis of disability, it
  must be a legitimate measure or qualification for
  the specific job it is being used for. It is not
  enough that it measures qualifications for a
  general class of jobs.

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Qualified Individual with Disability

• If an individual meets all job pre-requisites
  except those that s/he cannot meet because of a
  disability, and alleges discrimination because
  s/he is otherwise qualified for a job, the
  employer would have to show that the requirement
  that screened out this person is job related and
  consistent with business necessity.

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Qualified Individual with Disability

• A qualification standard or selection criterion
  should be linked directly to the essential
  functions of a job. A job-related standard or
  selection criterion may evaluate or measure all
  functions of a job and employers may continue to
  select and hire people who can perform essential
  job functions.

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Qualified Individual with Disability

• An employer may establish physical or mental
  qualifications that are necessary to perform
  specific jobs (for example, jobs in the
  transportation and construction industries
  police and fire fighter jobs security guard
  jobs) or to protect health and safety.

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Qualified Individual with Disability

• Business necessity will be interpreted
  under the ADA as it has been interpreted by
  the courts under Section 504 of the
  Rehabilitation Act.

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Qualified Individual with Disability

• Under the ADA, an under the Rehabilitation Act,
  if a test or other selection criterion excludes
  an individual with a disability because of the
  disability and does not relate to the essential
  functions of a job, it is not consistent with
  business necessity.

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Qualified Individual with Disability

• Even if a qualification standard or selection
  criterion is job-related and consistent with
  business necessity, it may not be used to exclude
  an individual with a disability if this
  individual could satisfy the legitimate standard
  or selection criterion with a reasonable
  accommodation.

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Qualified Individual with Disability

• Employers are required to provide for
  an objective assessment of a particular
  individuals current ability to perform a job
  safely and effectively. Generalized blanket
  exclusions of an entire group of people with a
  certain disability prevent such an individual
  consideration. Such class-wide exclusions are
  unlikely to survive a legal challenge under the
  ADA.

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Qualified Individual with Disability

• An employer is not required to lower
  existing production standards applicable to the
  quality or quantity of work for a given job in
  considering qualifications of an individual with
  a disability, if these standards are uniformly
  applied to all applicants and employees in that
  job.

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Qualified Individual with Disability

• Non-discrimination requirements apply to all
  selection standards and procedures, including,
  but not limited to
• education and work experience requirements
• physical and mental requirements
• safety requirements
• paper and pencil tests
• physical or psychological tests
• interview questions
• rating systems

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Qualified Individual with Disability

• If an individual with a disability who is
  otherwise qualified, cannot perform one or more
  essential job functions because of his or her
  disability, the employer, in assessing whether
  the person is qualified to do the job, must
  consider whether there are modifications or
  adjustments that would enable the person to
  perform these functions.