1. Overview of Selected Pre-Employment and Employment ADA Topics
Presenters from U.S. EEOC
Charlotte District:
Rachael Steenbergh-Tideswell,
Senior Trial Attorney
Christina Dodd,
Lead Systemic Investigator

2. A Brief Introduction to Title I of the Americans with Disabilities Act of 1990 (“ADA”)

3. Title I of the ADA
Prohibits private employers with 15 or more employees, State and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
Amended by the ADA Amendments Act of 2008 (“ADAAA”), which made it easier for an individual to establish that s/he is “disabled”

4. Who is a “qualified individual with a disability”?
A person will meet the “disability” prong if s/he:
Has a physical or mental impairment that substantially limits one or more major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment

5. Who is a “qualified individual with a disability”?
A person will meet the “qualified” prong if s/he:
Satisfies the requisite skills, education, experience, and other job-related requirements of the employment position that the individual holds or desires, and
Can perform the essential functions of such position with or without reasonable accommodation

6. ADA’s Confidentiality Requirements
The ADA requires employers to treat any medical information obtained from employees as a confidential medical record.
This includes information obtained from:
A disability-related inquiry or medical examination
Voluntary health or wellness programs
Voluntarily disclosed by an employee
The interactive process

7. Pre-Employment Topics

8. ADA Protections for Applicants
ADA offers protections during the hiring process, including:
Prohibiting discrimination based on disability, and
Requiring reasonable accommodation during the hiring process

9. What Can Employers Do and Not Do During the Hiring Process?
 Deny hire to an applicant who is unable to perform all essential functions of the job, even with reasonable accommodation  Deny hire to an applicant who is unable to perform minor duties that are not essential to the job  Deny hire to an applicant whose disability poses a significant risk of substantial harm to applicant or others, only after conducting a thorough assessment of the level of risk and the nature of the harm  Deny hire to an applicant based on a slightly increased risk of harm, speculation about future risk, or generalizations about applicant’s disability

10. What Can Employers Do and Not Do During the Hiring Process?
Ask whether an applicant needs a reasonable accommodation for the hiring process  Ask all applicants whether they would need reasonable accommodation to perform the job  Where an employer knows an applicant has a disability, ask whether the disability might pose difficulties for the individual in performing a specific job task. THEN employer may ask whether applicant needs reasonable accommodation to perform that task.  If employer believes applicant with an obvious disability will need a reasonable accommodation, employer may ask applicant to describe or demonstrate how s/he would perform the job with or without reasonable accommodation

11. Medical Inquiries and Examinations
Under the ADA, an employer's ability to make disability-related inquiries or require medical examinations is analyzed in three stages:
pre-offer pre-employment (applicant)
post-offer pre-employment (job offer)
employment (first day or after)

12. Medical Inquiries and Examinations
Pre-Offer:
Prior to an offer of employment, the ADA prohibits all disability-related inquiries and medical examinations.
What is a disability-related question?
Any question that is likely to elicit information about a disability.

13. Pre-Offer Questions
Are these questions likely to elicit information about a disability?
“Can you do this job with __ without __ reasonable accommodation? (Check One)”
Answer: Yes
“Do you currently use illegal drugs?”
Answer: No
“What medications are you currently taking?”
“Have you ever filed for Workers’ Compensation?”

14. Pre-Offer Questions
Are these questions likely to elicit information about a disability?
“Can you perform the essential functions of this job with or without a reasonable accommodation?”
Answer: No
“How did you break your leg?”
“Have you ever been treated for drug addiction?”
Answer: Yes
Have you ever been arrested for DUI?”

15. Medical Inquiries and Examinations
Post-Offer Pre-Employment:
An employer may ask disability-related questions and perform medical examinations only after a contingent job offer is made, and prior to the start of employment (post-offer pre-employment) if:
all entering employees in the same job category are also subjected to the same inquiry and/or examination, regardless of disability; and
medical information obtained is kept confidential.

16. Post-Offer Pre-Employment
If an individual is screened out because of disability, the employer must show that the exclusionary criterion is job-related and consistent with business necessity. A disability-related inquiry or medical examination may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.

17. Medical Inquiries and Examinations
Employment:
An employer may not conduct medical inquiries or examinations on employees, unless the inquiries and/or examinations are job-related and consistent with business necessity.
The ADA's restrictions on medical inquiries and examinations apply to all employees, not just those with disabilities. Any employee may challenge disability-related inquiries and/or medical examinations that are not job-related and consistent with business necessity.

18. Current Employees
Once an employee begins the first day of work, including orientation, all disability-related medical inquiries and examinations are prohibited unless the employer can show such inquires/examinations are job-related and consistent with business necessity.

19. Current Employees Applying
A current employee applying internally or externally for another job at his/her employer must be treated as an applicant. The employer is prohibited from making disability-related inquiries/examinations prior to a conditional job offer.
A current employee’s supervisor may not disclose disability-related information to the interviewing and/or hiring manager.

20. Employment Topics

21. Harassment Based on Disability
ADA protects against harassment based on disability
Employee must show
S/he is disabled within the meaning of the ADA;
S/he was subjected to conduct or comments that either (a) are sufficiently severe or pervasive to alter the conditions of employment (hostile work environment), or (b) results in a tangible employment action
There is a basis for holding the employer liable

22. Reasonable Accommodation
ADA requires an employer to provide reasonable accommodation to an employee with a disability, unless doing so would cause an undue hardship
Reasonable accommodation = any change in the work environment (or in the way things are usually done) to help a person with a disability perform the essential duties of a job or enjoy the benefits and privileges of employment

23. Reasonable Accommodation
Examples:
Making existing facilities accessible
Job restructuring
Part-time or modified work schedules
Acquiring or modifying equipment
Changing tests, training materials, or policies
Providing qualified readers or interpreters
Reassignment to a vacant position

24. Reasonable Accommodation
An employer does NOT need to:
Eliminate an essential function (i.e., a fundamental duty) of the position
Provide the employee’s preferred accommodation
Lower production standards that uniformly apply to all employees
Provide personal use items that the employee would require for accomplishing daily life activities off the job, such as a wheelchair or glasses
Provide personal amenities that are not provided to all employees (e.g., refrigerator)

25. The Reasonable Accommodation Process
Request
Interactive Process
Result

26. What Can an Employer Do During The Interactive Process?
Ask relevant question to ensure the employer understands the request
Ask relevant questions and request specific documents regarding the nature, extent, and duration of the disability and employee's functional limitations, if not obvious
Request documents from a treating physician confirming that employee needs time off

27. EEOC’s Systemic Program and Strategic Enforcement Plan

28. Systemic Investigations
Systemic cases are pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.

29. ADA Systemic Issues No-fault attendance policy
No leave granted outside FMLA leave
Maximum leave policy
100% healed policy
Apply and compete for reassignment
Unlawful medical inquiry/examination
Qualification standards

30. Strategic Enforcement Plan
Under Emerging and Developing Issues, EEOC is focusing on qualification standards and inflexible leave policies under the Americans with Disabilities Act.

31. EEOC’s Charge Process

32. If You Believe Your ADA Rights Have Been Violated. . .
File a charge with EEOC, even if you are unsure a violation has occurred
In South Carolina, you have 300 days after the date of the harm to file – do not wait!
If you do not timely file with EEOC, you cannot take your ADA case to court

33. How To File A Charge
Use the EEOC Public Portal to Submit an Inquiry, Schedule an Appointment, and File a Charge
Walk-in to an EEOC office
File with South Carolina Human Affairs Commission
Send signed letter via mail

34. What to Do If A Charge is Filed Against Your Business
When a charge is filed against an organization, the EEOC will notify the organization within 10 days. The notification will provide a URL for the Respondent to log into the EEOC's Respondent Portal to access the charge and receive messages about the charge investigation.
Use the Respondent Portal to:
View Charge
Upload Position Statement
Update contact information

35. Electronic Notice of Charge
notice replaces EEOC FORM 131 (Notice of Charge) View/download Charge of Discrimination at EEOC Respondent Portal via link and unique temporary password: 1. Access EEOC’s secure online system: 2. Enter this EEOC Charge No.: XXXXX 3. Enter this temporary password: pw7777ab

36. Respondent Portal

37. QUESTIONS?

38. Additional Resources EEOC’s website: https://www.eeoc.gov/
EEOC’s Disability Discrimination website
EEOC Efforts for Veterans with Disabilities
Inter-Agency Toolkit for Recruiting, Hiring, Retaining, and Promoting People with Disabilities
The Americans with Disabilities Act: A Primer for Small Business