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Disability Discrimination: Key Considerations

The Americans with Disabilities Act (ADA) generally prohibits employers from discharging or otherwise discriminating against employees based on the employee’s disability. Despite the seemingly straightforward intent of that edict, significant disputes have arisen since the ADA’s enactment concerning a number of key features of the statute.

For employers and employees alike, determining the applicability of the ADA and the scope, if any, of an employer’s responsibility hinges on an analysis of several key considerations.

  1. Does the employee have a “disability”? With Congress passing the ADA Amendments Act in 2008, which expanded the coverage of the ADA, the statute now defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities” of the employee. Perhaps importantly, “disability” also includes “a record of having such an impairment” or “being regarded as having such an impairment”, even if the employee does not, in fact, suffer an impairment. So employers must be cognizant of employee conditions, physical or mental, that may substantially limit major life activities.
  2. Is the employee a “qualified individual”? Because the statute only protects “qualified individuals” with a disability, it is important for the employer as a threshold matter to scrutinize whether the employee is entitled to statutory protection. Under the ADA, a “qualified individual” is a person “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” This definition, of course, begs the further questions of identifying the “essential functions” of the job at issue and determining the scope of “reasonable accommodations.”
  3. What is a “reasonable accommodation” for the disability at issue? Unlike other nondiscrimination statutes, the ADA also imposes an obligation on the employer to make a reasonable accommodation “to the known physical or mental limitations of an otherwise qualified individual with a disability” (unless it would result in undue hardship). The key often then becomes what changes or modifications constitute a “reasonable accommodation” and when are such changes or modifications an undue hardship for the employer.

The ADA, in short, presents employers a number of thorny issues, each of which must necessarily be tackled on an individualized basis. To minimize the risk of liability and best posture themselves in the event litigation arises, employers should dedicate the time necessary to evaluate these critical issues at the outset, working collaboratively with affected employees before conflict arises.

1 Comment

  1. Reblogged this on Fixing FEMA and commented:
    FEMA’s interpretation of “equal access” is that those with disabilities must be provided with identical programs and services.

    But in fact, the standard and regulatory requirement is that those with disabilities must be provided with identical ACCESS to programs and services.

    To paraphrase something I once saw a judge write in a reprimand of disability discrimination… It’s not enough to provide the same door – you must also provide a ramp to get to the door if the individual needs that.

    This is a fundamental lesson that FEMA and the coordinating disaster recovery agencies are currently ignoring.


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