Practical Matters: Career and Workplace Rights

The Americans with Disabilities Act Your Rights Under the Law

Our Mission Facilitate voluntary compliance with the Americans with Disabilities Act of 1990 (ADA) Conduct research to reduce and eliminate barriers to employment and economic self-sufficiency and to increase the civic and social participation of Americans with disabilities

Fulfilling America’s Promise to Americans with Disabilities The Americans with Disabilities Act of 1990 (ADA) marks a milestone in our Nation's quest to guarantee the civil rights of all citizens.

Titles of the ADA  Title I: Employment  Title II: Public Services (State & Local Governments)  Title III: Public Accommodations (Private Businesses)  Title IV: Telecommunications  Title V: Miscellaneous Provisions

Barriers to Equal Opportunity & Inclusion Physical Barriers Communication Barriers Attitudinal Barriers

The Foundations of ADA and Employment

Title I General Rule What is Discrimination? No covered entity shall discriminate against a qualified individual with a disability, because of the disability of such individual in regard to the job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Title I: Employment Private employers with 15+ employees, employment agencies, labor unions, and joint labor-management committees. All public employers

Employment Practices Covered Under the §504 & ADA Recruitment Pay Hiring Firing Promotion Job Assignments Training Leave Lay-off Benefits All Other Employment Related Activities

Understanding Disability

Definition of Disability The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. has a record of such an impairment, even if they do not currently have a disability. do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

Americans with Disabilities Act Amendments Expands the definition of "major life activities" by including two non-exhaustive lists: the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");

Qualified Individual with a Disability An individual with a disability who satisfies the requisite skills, experience, and education requirements of the position the person holds or desires and who, with or without reasonable accommodation, can perform the essential functions of such position.

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

Reasonable Accommodation An employer must provide reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability.

Reasonable Accommodation  Provision applies to: ◦ Full-time employees ◦ Part-time employees ◦ Probationary employees ◦ Temporary employees An individual must: ◦ Meet the ADA definition of disability ◦ Be a qualified individual with a disability

Reasonable Accommodation v Required in 3 Areas Application Process Performance of the Essential Functions of a Job Enjoyment of Equal Benefits and Privileges of Employment

Essential Functions Means the primary duties specific to the job Evidence that a Task is Essential : Employer’s Judgment Job Description Time Spent on Task Consequence of not Performing the Task Past or Current Employee’s Experience Collective Bargaining Agreement Term

Reasonable Accommodation Process Engaging in an “interactive process” to determine the appropriate reasonable accommodation that best suits the needs of both parties.

Reasonable Accommodation Examples * Restructuring a job by reallocating or redistributing a marginal job functions * Altering when or how an essential job function is performed * Part-time or modified work schedules * Obtaining or modifying equipment or devices * Modifying examinations, training materials or policies * Providing qualified readers and interpreters

Defenses to Reasonable Accommodation Undue Hardship: An action that is “unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business”.

Compliance with the ADA is not Required if doing so is an Undue Hardship.

Direct Threat Defense A direct threat is a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation”. An employer is not required to hire or continue to employ an individual who poses a direct threat to the health or safety of the individual or others.

Family Medical Leave Act (FMLA) Effective August 1993 Under the FMLA, an "eligible"7 employee may take up to 12 workweeks of leave during any 12-month period for one or more of the following reasons: The birth of a child, and to care for the newborn child; The placement of a child with the employee through adoption or foster care, and to care for the child; To care for the employee's spouse, son, daughter, or parent with a serious health condition; and Because a serious health condition makes the employee unable to perform one or more of the essential functions of his or her job.

During FMLA leave, an employer must maintain the employee's existing level of coverage under a group health plan. At the end of FMLA leave, an employer must take an employee back into the same or an equivalent job. Family Medical Leave Act (FMLA)

What employers are covered by the FMLA, the ADA and Title VII? The FMLA covers private employers with 50 or more employees. The ADA and Title VII cover private employers with 15 or more employees. Thus, only those private employers with 50 or more employees are covered concurrently by the FMLA, the ADA and Title VII. State and local government employers are covered by the ADA and the FMLA, regardless of the number of employees. State and local government employers are covered by Title VII, however, only if they have 15 or more employees.

What is a "serious health condition" under the FMLA? An FMLA "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves inpatient care... or continuing treatment by a health care provider."

RESOURCES  Southeast ADA Center (v/tty)  Equal Opportunity Employment Commission  Job Accommodation Network (JAN)

PUBLICATIONS (  EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act  Compensation Questions & Answers on Compensation Discrimination  Leave The Family Medical Leave Act, the ADA, and Title VII of the Civil Rights Act of

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