Our firm’s corporate clients frequently seek our legal counsel with respect to employment issues that arise from employee disabilities. Our clients sincerely wish to properly balance the personal needs of their disabled employees with their practical obligation of operating their business in an economically efficient manner, but in doing so, they do not want to run afoul of the law. Since its enactment in 1990, the federal American with Disabilities Act (ADA) has posed formidable challenges to corporations that are mandated by the law to comply with its provisions. The purpose of the ADA, is aimed to eliminate widespread and systematic workplace discrimination against disabled individuals, so it widely extends its coverage to employers at large including those in the private and public sector.
Title I of the ADA specifically prohibits discrimination on the basis of disability in employment. Specifically, it prohibits discrimination against “a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, job training, and other terms, conditions, and privileges of employment.”
A Brief Overview of Title I of the ADA
Title I of the ADA applies to all aspects of the employment relationship from application to termination. It is unlawful discrimination to limit, segregate, or classify a job applicant or employee in a manner that adversely affects employment state or opportunities on the basis of disability. The ADA prohibits discrimination against “qualified individuals with disabilities.” In response to numerous subsequent Supreme Court decisions that narrowly interpreted and restrictively applied the ADA, Congress amended the ADA in 2008 to refine key elements of the Act in a much broader and more inclusive manner, thus giving far greater protection to individuals asserting a claim or disability discrimination or asking for a reasonable accommodation for their employers. Thereafter, in 2011 The Equal Employment Opportunity Commission (EEOC), which is charged with the enforcement of the Act, issued regulations further clarifying the drastic changes resulting from the 2008 amendments to the ADA. While the amendments do not change the basic definition regarding who is entitled to coverage as an individual with a disability, its rules of construction broaden this class of persons. For example, prior the enactment of the amendments to the ADA, the Supreme Court had interpreted a disability that “substantially limits” a major life activity as one that renders the individual unable to perform the major life activity or severely restricts the individual’s ability to perform the major life activity. The ADA Amendment Act of 2008 (ADAAA), however, specifically rejects this narrow standard, and the EEOC regulations states “an impairment is a disability …if it substantially limits the individual to perform as major life activity as compared to most people in the population.” Furthermore, EEOC recognizes that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. This includes autism, cancer, HIV infection, cerebral palsy, and post -traumatic stress disorder as example of impairments that are now considered disabilities even during periods of remission that would not have been considered impairments under the prior interpretation of the ADA.
Corporate Governance and Enterprise Risk Management Considerations with Respect to ADA Title I Compliance
Publicly held corporations must meet the growing demands and challenges posed by the ADA law, EEOC regulation, and aggressive enforcement action. A business must proactively establish and maintain robust, effective corporate governance policies, necessary training mechanisms and rigorous and adaptive compliance programs in order to detect, deter, and resolve non-compliance matters, and vigorously defend against allegations of non-compliance. There are several specific steps that a company should undertake to mitigate the risks:
- Ensure compliance of the ADA by reviewing all personnel policies, manuals, and handbooks for any reference that could have an adverse effect on disabled applicants. The employer’s policies should be revised to prohibit discrimination based upon a disability. It would be provident for the policies to include a clause that reasonable accommodations will be made for the job applicants with disabilities unless undue hardship would result.
- Job descriptions should set forth the essential functions of the job that an applicant must be able to perform with or without reasonable accommodation. “Essential functions” as defined by the ADA refers to functions that are not marginal to the job in question. Thus, an employer is allowed to refuse to hire a person with a disability who truly cannot perform an essential function of the job. However, the employer cannot refuse employment because the disabled person is unable to perform a marginal job task. A court, pursuant to the mandates of the ADA, gives weight to the employer’s judgment regarding what functions are essential in a job description. However, the employer’s judgment as to what is an essential function can be rebutted by evidence from a plaintiff regarding the actual makeup of the job. A job description that does not reflect the actual functions of the job will have little or no weight in an employment dispute. The criteria must be job-related, consistent with business necessity, and related to the job applicant’s ability to perform the essential functions of the job.
- Employment applications should not include questions about disabling conditions that could raise the possibility of a prohibited discrimination. The ADA prohibits pre-employment inquiries that do not relate to the applicant’s ability to perform job-related functions. Moreover, the employment application cannot include questions about an applicant’s prior litigation or claims history because this information implies the person had prior injuries or illnesses that may constitute disabilities. Also, when contacting former employers during the pre-offer stage, a prospective employer cannot inquire about disabilities possessed by the job applicant. During the interview stage, employers cannot ask applicants if they have a disabling condition or inquire about the severity of a disability.However, an employer may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, he will be able to perform job-related functions.
- An employer may not conduct pre-employment medical examinations or require the applicant to complete a medical questionnaire during the pre-offer stage. This information could lead directly into possible disabilities of the applicant. Only post-offer medical examinations and medical history are allowed. An employer, however, may give physical agility, job-related tests to all similarly situated applicants during the pre-offer stage.
In summary, a corporation should review company policies, job descriptions, and hiring practices. Physical job requirements set forth in job descriptions should be job-related and consistent with business necessity. The employer should educate medical personnel of the ADA requirements. Make sure the physician conducting the post-offer medical examination truly understands what the essential functions of the job are in order to best evaluate if an applicant or employee can perform those tasks without posing a direct threat to the health or safety of the person or others in the workplace.