The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications. Title I of the ADA prohibits employers form discriminating against qualified individuals with a disability in hiring, promotion, discharge, compensation and all other terms, conditions or privileges of employment. The procedural framework for the ADA is adapted from Title VII of the Civil Rights Act of 1964 which prohibits discrimination in employment on the basis of race, color, religion, gender, or national origin. A significant portion of the substantive framework for Title I is derived from Section 504 of the Vocational Rehabilitation Act of 1973.
The ADA provides an equal opportunity for people with disabilities to work in all jobs for which they are qualified. An employer is obliged to consider applicants and make decisions without regard to disability, relationship to a disabled person, or need for accommodation of the disabled employee. The law defines a qualified individual with a disability as one able to perform the essential functions of the position held or desired at the time it is offered. This means that the applicant or employee must satisfy your position requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related and be able to perform those tasks that are essential to the job, with or without reasonable accommodation. Under the ADA, a person with a disability is one who has a physical or mental impairment that substantially limits a major life activity, e.g., hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.
Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. Your judgment as to which functions are essential and a written job description prepared before advertising or interviewing for a job will be considered as evidence of essential functions. Other kinds of evidence include actual work experience of present or past employees in the position, time spent performing a function, consequences of not requiring that an employee perform a function and terms of a collective bargaining agreement. Two further points to bear in mind: essential functions are not the same as essential qualifications (function describes the job, qualification describes the worker); and ,essential functions may be performed differently by people with disabilities, than by others, which is where reasonable accommodation comes into play.
Once the essential functions of a position are known, the employer in question must provide reasonable accommodation, if it is needed, to qualified applicants or employees with disabilities unless an undue hardship would result. Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
How are essential job functions determined?
Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodations. You should carefully examine each job to determine which functions or tasks are essential to performance. Factors to consider in determining if a function is essential include:
- whether the reason the position exists is to perform that function,
- the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
- the degree of expertise or skill required to perform the function.
What are my obligations to provide reasonable accommodations?
Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include but is not limited to:
- acquiring or modifying equipment or devices,
- job restructuring,
- part-time or modified work schedules,
- reassignment to a vacant position,
- adjusting or modifying examinations, training materials or policies,
- providing readers and interpreters, and
- making the workplace readily accessible to and usable by people with disabilities.
What can I ask in the interview?
You can ask an applicant questions about ability to perform job related functions, as long as the questions are not phrased in terms of a disability. You can also ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will perform job-related functions. It is unlawful to inquire if an applicant is 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. Focus the interview and evaluation on abilities not disabilities.
- Do ask about:
- The applicant's ability to perform essential job functions.
- The applicant's ability to perform marginal job functions.
- Whether the applicant can meet lifting requirement needed to perform the job.
- Attendance record at previous place of employment.
- Whether the applicant has a driver's license if needed for the job.
- Do not ask about:
- Whether the applicant is an individual with a disability.
- The applicant's health.
- Past alcohol or drug problems.
- The health of other family members or friends.
- Workers' compensation claims at previous place of employment.
"How to Comply with The Americans with Disabilities Act", U.S. Chamber of Commerce, Washington, DC
"The Americans with Disabilities Act: Your Responsibilities as an Employer", Office of Equal Employment Opportunity, Washington, DC
"What Should You be Doing RIGHT NOW to Get Ready for ADA?", LaborWatch, Berens-Tate Consulting Group, Omaha, NE 1992
Last Update: 12/95