Americans With Disabilities Act

If a disability or medical condition limits your ability to do your job, there are state and federal laws which protect you from discrimination.

The main federal law is the Americans With Disabilities Act of 1990, or ADA.

Are all Employers Required to Follow the ADA?

The ADA only applies to employers with 15 or more employees. However, the California Fair Employment and Housing Act offers similar protections and applies to all employers with 5 or more employees.

Who is Protected by the ADA?

Any qualified job applicant to, or employee of, an employer covered by the ADA.

Who is “Qualified”?

Any person who can perform the essential functions of their job, or the job to which they are applying, with or without an accommodation.

Example 1: Malena applies to a telemarketing position. She is paralyzed in her legs but can access the telemarketing office because it has a wheelchair ramp. She can make calls and use the computer system as the position requires. She is a qualified individual.

Example 2: Emilio is legally blind but can read with corrective lenses. However, even with the lenses, he cannot see clearly for longer distances. He is not qualified for a position as a truck driver.

What Counts as a “Disability”?

Any physical or mental impairment that “substantially impairs” a major life activity.

Example: Susan is deaf in one ear. She has difficulty hearing people who are more than a few feet away from her. This is a qualifying disability.

Are Individuals Without Disabilities Protected by the ADA?

Yes. If your employer incorrectly believes that you have a disability, they may not discriminate against you based on this false belief.

Example: During his job interview, Mike was in a wheelchair. He didn’t say anything about a disability or ask for any accommodation. He had twisted his ankle that morning and didn’t want to miss the interview. After 12 hours in the chair, he was no longer impaired in any way. The employer considered other applicants throughout the week. Although Mike was the most qualified applicant, the employer worried that other employees may feel uncomfortable around a wheelchair-bound coworker. For this reason alone, the employer hired a less-qualified candidate. Even though the employer’s belief about Mike’s disability was incorrect, Mike is still protected from the employer’s discriminatory decision-making.

What Protections Does the ADA Provide?

The ADA prohibits employers from:

• Discriminating against employees or applicants because of their disability. This includes decisions involving:
  • Job application procedures
  • Hiring decisions
  • Promotions
  • Terminations
  • Training
  • Pay, benefits, and other terms and conditions of employment
• Discriminating against employees or applicants they incorrectly believe to have a disability,
• Failing to provide a reasonable accommodation for an employee with a disability,
• Failing to engage in a good-faith interactive process once an accommodation has been requested.

What is a “Reasonable Accommodation”?

An accommodation is a modification of your working conditions that enables you to perform the essential functions of your job. It is “reasonable” if it can be implemented without undue hardship to your employer.

When Does an Accommodation Cause “Undue Hardship”?

The courts consider the overall difficulty and cost of the requested accommodation in light of the employer’s size, financial resources, and type of operation.

Example 1: Laverne works as a greeter for a large corporate retail chain. She is confined to a wheelchair. While there is a handicap restroom stall, she cannot access the existing grab bars. She needs an additional set of grab bars installed 10 inches lower than the existing set. This can be completed in one night after the store is closed, and will cost $1,500 for parts and labor. In light of the employer’s size and resources, the cost and difficulty of her accommodation are not significant. Her accommodation would not cause undue hardship.

Example 2: Abdul is an auto mechanic at a family-owned oil-change shop with 15 employees. He is highly allergic to most types of motor oil. However, there is an alternative product that is safe for him. Its wholesale cost is 25% more than standard oil. If the shop raises prices, it will lose most of its customers. If it maintains its prices, its overall costs will increase by 10%. In light of the employer’s size and resources, the cost of this accommodation is significant and would cause an undue hardship.

What is the Good Faith Interactive Process?

If your employer claims they cannot grant your accommodation, they need to work with you to find something they can do. Employers cannot simply say “no” and close the matter. Your employer must communicate with you about your functional capacities and limitations, the essential functions of your job, and solutions that will enable you to perform those essential functions. They must consider your ideas and be transparent and thoughtful in responding to them. They act in “good faith” when they hope to find a resolution. They act in ‘bad faith’ when they communicate harshly, fail to respond to you, or otherwise act like they don’t care.

Example 1: Marquel is the Operations Director for a mid-size distribution company. He is recovering from surgery and must stay in bed for one month. He is otherwise fully alert, in good spirits, and eager to return to work as soon as possible. His doctor has requested a 2- month leave of absence. His employer really wants this for him, but has become so dependent on Marquel’s operations leadership that it simply cannot service future orders unless Marquel provides some training to the other staff. The employer proposes that Marquel rests undisturbed for 1 month. Then, in the second month, he will take part in an hour-long conference call every week to answer questions and provide information. Marquel and his doctor agree that Marquel can do this without compromising his recovery. Both sides worked with each other to find a reasonable accommodation.

Example 2: Beatriz has severe migraines. She asks the HR manager for one extra 10-minute rest break every 8 hours. The HR manager e-mails Beatriz a page from the employee handbook with Beatriz’s signature. The company’s standard rest-break policy is circled in red. The HR manager writes in the e-mail, “this is the rule. We already give you what the law requires. You will not get special treatment.” The HR manager does not follow up on the topic again. The employer did not engage in a good faith interactive process because it did not try to find a reasonable accommodation.

If you think your employer is discriminating against you, failing to accommodate you, or acting in bad faith, call Spencer Young Law today for a free consultation!