Don’t Run Afoul of the ADA—Avoiding Disability-Based Employment Discrimination

Title I or Title II of the Americans with Disabilities Act (“ADA”) protect school employees with disabilities from employment discrimination on the basis of disability.[1]  Title I covers employees of private schools where there are 15 or more employees over 20 or more weeks in a year and Title II covers employees of all public schools (including charter schools), regardless of size.   Many school employees are also protected by the employment provisions of the Rehabilitation Act of 1973.[2]  If you are the administrator of a school, public or private, you very likely have an obligation to ensure that employees with disabilities are provided an equal employment opportunity and do not experience discrimination on the basis of disability.

Which begs two obvious questions—who is a person with a disability and what constitutes discrimination?

Disability under the ADA and the Rehabilitation Act is defined as:

• 1) a physical or mental impairment that substantially limits one or more major life activity; or
• 2) a record of such an impairment; or
• 3) being regarded as having such an impairment.

In 2008, with the ADA Amendments Act, Congress announced that the definition of disability is to be construed in favor of broad coverage.  “Major life activities” include caring for oneself, walking, standing, learning, breathing, concentrating, and communicating, among many others.  “Substantially limits” is not a particularly difficult hurdle to cross—it means that the individual with the impairment is more limited in performing the major life activity than most people in the general population.  Considering whether a person is substantially limited in a major life activity does not take into account any mitigation measures (medication, assistive technology) that a person uses.  Congress did carve out one exception though—a person may be substantially limited in the major life activity of seeing, but if that limitation is mitigated by the use of ordinary eyeglasses, the person is excluded from protection as a person with a disability.

Discrimination occurs when an employer makes a decision on any issue affecting employment, including the hiring process, the terms and conditions of employment, pay, promotion, demotion, or termination, on the basis of a person’s disability.  It is also discrimination to fail to provide a reasonable accommodation to an employee with a disability who needs such an accommodation in order to perform the essential functions of the employee’s position (or to apply for a position).  Finally, it is discriminatory to use qualifications standards, employment tests, or other selection criteria that screen out or tend to screen out an individual or class of individuals with disabilities unless the standard, test, or criteria are job-related and consistent with business necessity.

The process of identifying and providing reasonable accommodations may feel daunting for both employer and employee.  The Equal Employment Opportunity Commission, the federal agency that enforces Title I of the ADA, issued a useful information publication on this issue entitled “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.”  This guidance can be found at www.eeoc.gov.  Accommodation means an effective modification or adjustment to the way in which a job is performed, and an accommodation is “reasonable” if it is feasible or plausible.  If an accommodation is reasonable, but would be an undue hardship for an employer to provide, the employer will be able to avoid providing that specific accommodation, but will have to provide another accommodation that is effective and not an undue hardship, if one exists.

An employee who has a disability should request accommodation if s/he needs it to perform the essential functions of his/her job.  However, an employer has a duty to approach an employee who the employer suspects of having a disability if that employee is not performing his/her job functions properly to initiate a discussion about whether reasonable accommodations are necessary.  If the employee refuses to participate or will not acknowledge there is a disability, the employer’s obligation is at an end.

There are no “magic words” that an employee must use to initiate a request for accommodation.  An employer may not refuse to provide accommodation simply because the employee did not use a pre-designated form for the request.  Regardless of how the employer becomes aware of the request for accommodation, the employee and employer should begin the interactive process immediately. The interactive process is an informal dialogue between employee and employer designed to determine what limitations are caused by the disability and what accommodations might be effective in allowing the employee to perform the essential functions of the job.

During the interactive process, an employer may request medical documentation from an employee only if the disability and its limitations are not obvious.  To the extent that an employer does request medical information, the request should be narrowly tailored to only elicit information about the limitations caused by the disability and the affect those limitations will have on the employee’s ability to perform the essential functions of the position.  For example, if an employee has an orthopedic impairment that limits his/her ability to stand, the employer should not seek medical information related to mental health issues but can seek information about the nature of the orthopedic impairment and the limitations is causes.

Both parties must participate in good faith in the interactive process because both bring important information to the table—the employer often has the greatest knowledge about the requirements of the job and the employee often has the greatest knowledge about how to accommodate his/her disability.  Both parties may benefit from the job Accommodation Network, which is a free service that provides ideas on how to reasonably accommodate specific limitations.  Information can be found at www.askjan.org.

It is a good idea to draft an accommodation plan once the interactive process is complete.  The written plan will ensure that both employer and employee have a clear idea of what accommodations are going to be in place and any procedures for utilizing them.  For instance, if an employee needs to telecommute on some days due to disability, the accommodation plan should set out the procedures that the employee will follow to notify his/her employer of the need to telecommute on a particular day.

Remember that just because the interactive process is complete and accommodations have been agreed upon, the effectiveness of those accommodations, or the limitations caused by the disability, may change.  Providing an employee with a disability reasonable accommodation is an on-going duty that will require open communication between employer and employee.  The purpose of the reasonable accommodation component of the ADA is to ensure that individuals in our society with disabilities are not excluded form the opportunity to engage in paid labor and when employer and employee work together, both will benefit.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact 480.461.5300, log on to udallshumway.com, or contact an attorney in your area.