THE AMERICANS WITH DISABILITIES ACT

Aaron Morris, Esq.

Signed into law by the first President Bush, the ADA is perhaps the most comprehensive civil rights legislation since the Civil Rights Act of 1964.  In a word, it attempts to do for people with physical and mental disabilities what Title VII does for minorities.

Just as Title VII prohibits discrimination on the basis of race, the ADA prohibits discrimination against any "qualified individual with a disability."  And therein begins a chain of terms that employers and their attorneys will have to try to define.  Just what is a "qualified individual with a disability?"

Let's first look at how the ADA defines "disability."  The ADA's perception of disability is far broader than what might automatically come to mind.  In fact, under the ADA, there are three categories of protected persons, and not all of the people within these categories suffer from any handicap.

The first category is probably the closest to the traditional definition of a disability.  It includes any condition involving a "physical or mental impairment that substantially limits one or more of the major life activities of such individual."  "Major life activities" are walking, talking, seeing and hearing.  This category would include apparent disabilities such as paraplegia, mental retardation and mental illness.

The second category covers persons who may no longer be physically disabled, but who have had a "record of impairment."  Recovered victims of cancer, for example, often report discrimination from their former employers.  The ADA will prohibit that sort of discrimination, as well as discrimination against recovered alcoholics.

The third and final category covers people who are not disabled at all, but who are "perceived" to be so.  This category includes persons with conditions that do not impair "major life activities," but which tend to stigmatize such people.  One example might be a person who suffers from alopecia universalis (complete hair loss).  While not a disability in its own right, an employer might discriminate against such an individual on the unfounded belief that the condition indicates cancer.  The ADA also prohibits discrimination against persons with AIDS and certain other contagious diseases, unless the disease poses a threat to other employees or the public.

With "disability" now defined, what is a "qualified individual with a disability?"  According to the ADA, it is a person "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."  The ADA recognizes that some disabilities prevent the disabled from being qualified for certain jobs.  For example, it is not discriminatory to refuse to hire a person with a speech disability for a receptionist position. Nor is it unlawful to pass over a disabled person for someone who is more qualified.  But if the disability is the only cause for disqualification, the ADA does require the employer to make "reasonable accommodations."

The most obvious example of this is removing any physical barriers. It would not be unreasonable under most circumstances for an employer to provide wheelchair access, for example.

But the ADA also expects some accommodation in the actual job description.  If some small aspect of a given job renders an applicant unqualified for the job, a "reasonable accommodation" might entail transferring that responsibility to someone else.  In fact, the legislative comments to the ADA specifically suggest creating two part-time positions from a full time position as a way of accommodating a disabled employee. In the case of a blind applicant, providing a reader is suggested as a possible accommodation.

What remains to be seen is how far the Equal Employment Opportunity Commission, the agency charged with enforcing the ADA, will require employers to go in order to accommodate the disabled.  In the context of the Fair Employment and Housing Act, "reasonable accommodation" has already been interpreted to mean "successful accommodation," not just reasonable efforts.  Thus, where an employee was unusually sensitive to cigarette smoke, it was not enough that the employer provided designated smoking areas since the employee was still bothered by the smoke.

Under the ADA, the employer must accommodate a qualified applicant unless to do so would work an "undue hardship" on the employer. An "undue hardship," in turn, is defined as "an action that would require significant difficulty or expense."  However, that definition only begs the question -- what constitutes a "significant difficulty or expense?"

While it provides no answer to that question, the ADA does provide some guidance. If an employer claims a possible accommodation constituted an undue hardship, the EEOC will view that claim under the following criteria:

(1) The nature and cost of the accommodation needed;

(2) The overall financial resources of the company;

(3) The number of employees at the particular facility; and

(4) The impact of the accommodation on the operation of the facility.  In a nutshell, these criteria state simply that large companies will be expected to do more than small companies.

So how should your company prepare for the ADA? Begin with your interviewing procedures and job applications.  Take a look at your questions and make sure you aren't asking anything that could be viewed as seeking to elicit information about disabilities.  Also, make certain that your interviewers are aware of the ADA, and that they understand that it is the policy of the company not to discriminate on any basis, including disabilities.

Next, review your job descriptions.  If they contain physical requirements, make certain they are justifiably job related.  If you don't have written job descriptions, now may be the time to create them.  Doing so will not only force you to examine and articulate the requirements of various jobs, it may provide a defense to specious discrimination claims.  After all, it is difficult to assert that an applicant was not qualified for the job when the job is not defined.

Finally, examine your facilities to see if they afford ready access to the disabled.  The ADA itself does not impose any access requirements, but if you voluntarily undertake such improvements now, you will have gone a long way toward demonstrating that you specifically took steps not to discriminate.

IMPORTANT NOTE: Since this article was published, there have been several decisions published which further interpret the ADA. Also, California's own version has been interpreted to afford even greater protections to employees than the Federal version. Be sure to contact Morris & Stone for the latest developments.

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Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California. He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.