Disability and Business Technical Assistance Centers DBTACs

1. NORTHWEST DBTAC REGION 10 New England DBTAC ADA Region I Region II Region X Region III Region IX Region IV Region VIII Region V Region VI Disability and Business Technical Assistance Centers DBTACs 1-800-949-4232

2. Why are we here? • Our mission is to assist in the successful implementation of the Americans with Disabilities Act by helping individuals, organizations, businesses, local governments and agencies understand their rights and responsibilities under the ADA.

3. WHAT DO WE DO? • Toll-Free Information Line---1-800-949-4232 • Training--Targeted, need-based training • Consultations • On-Line Services---www.adaproject.org • Publications---ADA Update, TADAR • Materials

4. Who Do We Serve? • Individuals with disabilities and their family/friends • Business entities • owners, supervisors, managers,unions • architects/designers • manufacturers • Service Providers • Government Entities • elected officials and local, county and state agencies

5. Goals of the ADA • Equality of Opportunity • Full Participation • Independent Living • Equality of Opportunity

6. Legal Developments • Architectural Barriers Act of 1968 • Rehabilitation Act of 1973 • IDEA 1975 • Air Carriers Access Act of 1986 • Fair Housing Amendment Act of 1988 • ADA 1990 • Ticket to Work/Work Incentives 1998

7. People with Disabilities in the 21st Century • General population: 82% employed • People with disabilities: 52% employed • Nine million on Social Security Disability rolls • People with disabilities three times as likely to be living in poverty • General population: 67% satisfied • People with disabilities: 33% satisfied

8. Disability Discrimination Factors • Discomfort and Embarrassment • Paternalism • Unfounded stereotypes • Stigma about disabilities • Benign neglect

9. The ADA Protects Qualified Individuals with Disabilities From Employment Discrimination

10. Who is covered by the employment provisions of the ADA? • All Private Employers with 15 or more employees • Some states have different standards under their state laws • Exceptions: • The Unites States or a corporation owned by the U.S. • An Indian tribe • A bona fide private membership club that is exempt for taxation under the 1986 IRS code.

11. The ADA Protects Qualified Individuals with Disabilities From Employment Discrimination

12. What is the ADA Definition of an Individual with a Disability? • Established on a Case-by-Case basis • A person with a disability is an individual who: • Has an physical or mental impairment that substantially limitsone or more of his/hermajor life activities • Has a record of such an impairment; or • Is regarded as having such an impairment

13. What is a Major Life Activity? • Activities that an average person can perform with little or no difficulty. • Walking • Speaking • Breathing • Seeing • Hearing • Learning • Sitting • Standing

14. What does “Substantially Limited” Mean? • 3 Main Factors to Consider • Nature and Severity • How long it will last or expected to last • Permanent or long term impact, or expected impact

15. Are Temporary Impairments Covered? • Depends upon: • Extent • Duration • Impact • Temporary non-chronic impairments that do not last for a long time and that have no long term impact usually are not disabilities.

16. What is Substantially Limited in Working? • The person must be significantly restricted in the ability to perform either a, • Class of jobs, or • A broad range of jobs in various classes • Supreme Court rulings have restricted this definition.

17. Are there specific exclusions? • A person who currently uses drugs is not protected by the ADA • Former addicts who have been successfully rehabilitated may be protected • Other Exclusions • Transvestism, pedophilia, exhibitionism, voyeurism, homosexuality, compulsive gambling, kleptomania, pyromania, transsexualism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, psychoactive substance use disorders resulting from current illegal use of drugs

18. The ADA Protects Qualified Individuals with Disabilities From Employment Discrimination

19. How does the ADA define “qualified”? • “satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonableaccommodation, can perform the essentialfunctions of such position.” • Title I Technical Assistance Manual

20. What does that mean? • 2 basic steps • (1) determine if the individual meets prerequisites for the job • Education • Work experience • Training • Skills • Licenses • Certificates • Others

21. What does that mean? • 2 basic steps • (2)determine if the individual can perform the essential functions of the job with or without reasonable accommodations.

22. What are essential functions? • Basic job duties that an employee must be able to perform, with or without reasonable accommodation • Two basic considerations • Are employees in the position actually required to perform the function? • Would removing that function fundamentally change the job?

23. How are essential functions identified? • The position exists to perform the function. • There are a limited number of other employees available to perform the function, or among whom the function can be distributed. • A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.

24. What kind of evidence is used in identifying an essential function? • Employer’s judgment • Written job description prepared before advertising or interviewing applicants • The amount of time spent performing the function cont.

25. What kind of evidence is used in identifying an essential function? • The consequences of not requiring a person to perform a function • The terms of collective bargaining agreement • Work experience of those who have performed a job in the past or currently

26. Can an employer change the essential functions of a job? • Yes, the ADA does not limit an employer’s ability to change the content, nature or functions of a job • As long as the changes are not discriminatory in nature

27. What are essential functions? • Essential functions are the basic job duties that an employee must be able to perform, with or without reasonableaccommodations.

28. What are reasonable accommodations? • Modification or adjustment to the job application process. • Modification to the work environment or the manner in which the job is customarily performed. • Modification or adjustment to allow the equal enjoyment of benefits and privileges of employment.

29. What are some of the basic principles of a reasonable accommodation? • The accommodation must be effective • The accommodation must reduce barriers related to a person’s disability • The accommodation doesn’t have to be the best as long as it is effective cont.

30. What are some of the basic principles of a reasonable accommodation? • An employer is not required to provide an accommodation that is primarily for personal use • An employer is allowed go beyond the ADA and provide accommodations not necessarily required

31. When is an employer obligated to make a reasonable accommodation? • An employer is obligated to make an accommodation only to the known limitations of an otherwise qualified individual with a disability

32. Whose responsibility is it to inform the employer? • It is the employee’s responsibility to request an accommodation • However, the employer is responsible for notifying applicants and employees of its obligation to provide accommodations

33. How does an employer determine if an individual is covered? • Once an employee asks for an accommodation, an employer may request documentation. • The information must be kept confidential. • The information must not be more intrusive or extensive than is job-related or consistent with business necessity.

34. How is the right accommodation determined? • Informal, interactive process between employer and employee. • Employer makes final determination for the best R.A. in compliance with the ADA. • Not required if it would impose an undue hardship

35. What is an undue hardship? • An undue hardship is an action that requires “significant difficulty or expense” in relation to the resources available and the nature of the operation. cont.

36. What is an undue hardship? • Determined on a case-by-case basis • Unduly costly • Based upon business size and resources • Fundamentally alters the nature of the business • Significant administrative difficulty

37. Does claiming an undue hardship remove accommodation requirements? • NO, the portion of the accommodation not considered an undue hardship must be provided.

38. The ADA Protects Qualified Individuals with Disabilities From Employment Discrimination and in the Application Process

39. What can’t an employer ask an applicant? • It is unlawful to: • ask an applicant whether they are disabled or about the nature or severity of a disability, or • to require the applicant to take a medical examination before making a job offer.

40. What can an employer ask? • About ability to perform job-related functions • as long as the questions are not phrased in terms of a disability. • Describe or to demonstrate how • with or without reasonable accommodation

41. Can an employer give a medical exam to an individual with a disability? • Yes, • But only after a job offer is made and prior to the commencement of employment duties • As long as everyone who will be working in the job category must also take the examination.

42. May an employer condition the job offer on the results of the medical examination? • Yes, but must be able to show that the reasons are job related and necessary for conduct of business. • Must be able to show that there was no reasonable accommodation

43. Can an employer require a medical exam after commencement of a job? • No medical examinations or questions about a disability • unless, job related and necessary for the conduct of business. • They may conduct voluntary medical examinations that are part of an employee health program.

44. What are the confidentiality requirements for requested information? • must be kept confidential, and • maintained in separate locked medical files. • Employers may provide medical information required by State workers' compensation laws to the agencies that administer such laws.

45. How are the employment sections of the ADA enforced? • Internal Grievance Procedure • Not Required by law • Filing Administrative Complaint with the EEOC • Filing Lawsuit • Requires “Right to Sue” letter from EEOC • Alternative Dispute Resolution

46. What are some of the recent Supreme Court rulings affecting Title I? • Sutton v. United Airlines • United had a uncorrected 20/100 vision req. • Established that mitigating measures must be taken into account when determining whether an individual is covered • PGA Tour, Inc. v. Martin • High profile case over right to use a cart

47. What are some of the recent Supreme Court rulings affecting Title I? • Toyota v. Williams • Toyota denied employee’s request for accommodation • Established that def. of a disability can’t focus on claimants inability to perform manual tasks associated only with their jobs; must consider other factors “outside” of working • Sutton, Martin, and Toyota all reinforced requirements that disability determinations be based on a case-by-case basis

48. What are some of the recent Supreme Court rulings affecting Title I? • University of Alabama v. Garrett • Garrett, a nurse, took leave to receive treatment for cancer and upon return was denied her position • Private parties cannot sue states for money damages under Title I of the ADA • Can sue for injunctive relief

49. What are some of the recent Supreme Court rulings affecting Title I? • EEOC v. Waffle House • Employee signed a binding arbitration agreement • Court ruled the EEOC was not party to agreement and has greater interest in enforcing laws, therefore the agreement was not binding on the EEOC

50. What are some of the recent Supreme Court rulings affecting Title I? • US Airways, Inc. v. Barnett • Whether the ADA requires an employer to assign a disabled employee to a position as a "reasonable accommodation," even though another employee is entitled to hold the position under the employer's bona fide and established seniority system. • An employer’s showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an “accommodation” is not “reasonable.” However, the employee remains free to present evidence of special circumstances that makes a seniority rule exception reasonable in the particular case.