Qualified Individual with Disability

1. Qualified Individual with DisabilityJohn Patrick Evans,Certified Rehabilitation Counselor – Corporate ConsultantWashington State Department Social and Health ServicesDivision of Vocational RehabilitationEvansJP@dshs.wa.gov2003

2. Qualified Individual with Disability • To be protected by the ADA, a person must not only be an individual with a disability, but must be qualified. An employer is not required to hire or retain an individual who is not qualified to perform a job.

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

4. Qualified Individual with Disability • Employers are not prohibited from establishing job-related qualification standards, including education, skills, work experience, and physical and mental standards necessary for job performance, health and safety.

5. Qualified Individual with Disability • Whether the person with a disability is “qualified” requires a two-step process. • 1. Determine whether the individual is “otherwise qualified” and therefore satisfies the requisites of the job such as education, experience, skills, and other job-related requirements. • 2. Determine if the individual can: • (i) perform the essential functions of the job, • (ii) with or without reasonable accommodation.

6. Qualified Individual with Disability • If an individual with a disability cannot perform a marginal function of a job because of a disability, an employer may base a hiring decision only on the individuals ability to perform the essential functions of the job, with or without reasonable accommodation.

7. Qualified Individual with Disability • The determination of a person’s abilities to perform essential functions must be based on the person’s capabilities at the time of the employment decision, not on speculation of the employee’s future capabilities.

8. Qualified Individual with Disability • If a qualification standard, test or other selection criterion operates to screen out an individual with a disability, or a class of such individuals on the basis of disability, it must be a legitimate measure or qualification for the specific job it is being used for. It is not enough that it measures qualifications for a general class of jobs.

9. Qualified Individual with Disability • If an individual meets all job pre-requisites except those that s/he cannot meet because of a disability, and alleges discrimination because s/he is “otherwise qualified” for a job, the employer would have to show that the requirement that screened out this person is “job related and consistent with business necessity.”

10. Qualified Individual with Disability • A qualification standard or selection criterion should be linked directly to the “essential functions” of a job. A “job-related” standard or selection criterion may evaluate or measure all functions of a job and employers may continue to select and hire people who can perform essential job functions.

11. Qualified Individual with Disability • An employer may establish physical or mental qualifications that are necessary to perform specific jobs (for example, jobs in the transportation and construction industries; police and fire fighter jobs; security guard jobs) or to protect health and safety.

12. Qualified Individual with Disability • “Business necessity” will be interpreted under the ADA as it has been interpreted by the courts under Section 504 of the Rehabilitation Act.

13. Qualified Individual with Disability • Under the ADA, an under the Rehabilitation Act, if a test or other selection criterion excludes an individual with a disability because of the disability and does not relate to the essential functions of a job, it is not consistent with business necessity.

14. Qualified Individual with Disability • Even if a qualification standard or selection criterion is job-related and consistent with business necessity, it may not be used to exclude an individual with a disability if this individual could satisfy the legitimate standard or selection criterion with a reasonable accommodation.

15. Qualified Individual with Disability • Employers are required to provide for an objective assessment of a particular individual’s current ability to perform a job safely and effectively. Generalized “blanket” exclusions of an entire group of people with a certain disability prevent such an individual consideration. Such class-wide exclusions are unlikely to survive a legal challenge under the ADA.

16. Qualified Individual with Disability • An employer is not required to lower existing production standards applicable to the quality or quantity of work for a given job in considering qualifications of an individual with a disability, if these standards are uniformly applied to all applicants and employees in that job.

17. Qualified Individual with Disability • Non-discrimination requirements apply to all selection standards and procedures, including, but not limited to: • * education and work experience requirements • * physical and mental requirements • * safety requirements • * paper and pencil tests • * physical or psychological tests • * interview questions • * rating systems

18. Qualified Individual with Disability • If an individual with a disability who is otherwise qualified, cannot perform one or more essential job functions because of his or her disability, the employer, in assessing whether the person is qualified to do the job, must consider whether there are modifications or adjustments that would enable the person to perform these functions.