Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers with 15 or more employees from discriminating against persons with disabilities in various aspects of employment, including:
- Applications processes
- Hiring
- Firing
- Advancement
- Compensation, and
- Job Training.
The ADA applies to both physical and mental disabilities.
The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the ADA with regard to private employers, while the Department of Justice (DOJ) is vested with enforcement authority where state and local government employers are concerned. Individuals who have been discriminated against also have a private right of action under the ADA, meaning that they can sue the discriminating organization directly.
At a glance, the prohibition on discrimination may appear straightforward as it would clearly seem to violate the ADA to limit the prospects of an employee or otherwise treat him or her differently on the basis of disability. However, ADA compliance is actually far more complex. For example, an employer may violate the ADA by failing to make reasonable accommodations for a disabled employee, or by declining to hire an applicant due to the necessity of making accommodations.
Reasonable Accommodation Under the ADA
One of the most challenging questions for an employer attempting to comply with the ADA is “What constitutes ‘reasonable accommodation’?” Some clear and relatively simple forms of accommodation include modifying a physical work environment to make it accessible by a disabled employee, whether that means modifying a desk to accommodate a wheelchair or providing visual signals for a deaf person in a context that usually employs audio notifications.
However, the accommodations required may be more complicated and extensive. Some examples include:
- Adaptation of testing materials used to qualify applicants for employment or promotion
- Employment of third parties to provide services such as reading or interpretation
- Restructuring of work schedules to accommodate limitations or medical treatment schedules
- Unpaid time off to pursue treatment
Some accommodations even extend into actions you might not think of as accommodation at all, such as reassigning employees to available positions that accommodated their disabilities without considering other applicants.
In short, it can be difficult to assess exactly what is required of you in terms of providing accommodation for a disabled applicant or employee. That is particularly true because the “undue hardship” exception to the reasonable accommodation requirement may not mean exactly what the average business person might expect.
Undue Hardship Under ADA
The ADA does not require an employer to provide accommodation for a disabled applicant or employee if that accommodation would cause an undue hardship. As a business person, your first thought is probably to the costs associated with making an accommodation, but cost alone is generally not enough to establish an undue hardship.
The simple definition of “undue hardship” under the Act is one requiring “significant difficulty or expense.” However, the statute then goes on to set forth several factors, including the resources of the organization, the nature of the accommodation, the nature of the operation, the size of the business and the impact of the accommodation on operations. Larger organizations with more resources may be expected to invest more in reasonable accommodation than a small business operating with a lean budget.
Enforcement of ADA
The EEOC is empowered to bring suit against private employers for violations of the ADA, and individuals who feel they have been discriminated against on the basis of a mental or physical disability may also bring suit directly. Often, it is possible to negotiate a remedy, even before suit has been filed. Thus, if an employee or applicant has filed a charge against you with the EEOC or you have reason to believe a lawsuit is contemplated, seek help from a qualified labor and employment attorney as soon as possible.
Request More Information About ADA Claims
The best time to protect yourself from a lawsuit under the ADA is before the claim arises. If you are uncertain about the necessary procedures or accommodations, generally or in a particular circumstance, do not try to sort it out alone. Retain guidance from an experienced labor and employment attorney before you make any decisions.
If you are being investigated or have been sued, time is of the essence. However, it may be risky to take any action or engage with the employee/applicant or the EEOC without professional advice. In that circumstance, it is all the more important that you seek legal assistance right away.
