The ADA and Employers

SUMMARY: Most employers must comply with the ADA’s employment-related rules about disability. These rules apply to all stages of employment: pre-offer, post-offer, and during employment. This article provides an overview of key aspects of the Americans with Disabilities Act (ADA) and the Rehabilitation Act, with regard to employment.

Title I of the Americans with Disabilities Act (ADA) says employers can’t discriminate against people applying for a job because they have a disability. It also says employers can’t discriminate against employees with disabilities. The ADA also protects applicants and employees with disabilities from retaliation for asserting their rights under the ADA. 

The US Equal Employment Opportunity Commission (EEOC) enforces civil rights in the workplace, including those that are described in the ADA.

Which Employers?

According to the EEOC,^[1] many types of employers must not discriminate against people with disabilities. Employers who have 15 or more employees must comply with the regulations in Title I. Covered employers include:

• Private employers
• State and local governments
• Employment agencies
• Labor organizations
• Labor management committees

The EEOC also includes agents of an employer. An agent acts on behalf of the employer. Examples include a manager, supervisor, or foreperson. An agent could also be an outside organization that supports hiring or manages employer benefit programs. An employer is responsible for the actions of their agents who violate Title I.^[2]

Also, some disability-related employment law comes from the Rehabilitation Act. The Rehabilitation Act applies to certain employers funded by the federal government and to certain federal contractors.

[ Read: Rehabilitation Act ]

Which Employees?

Title I of the ADA prohibits discrimination against qualified individuals with disabilities in all employment practices. The EEOC defines a qualified individual as follows:

A person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation.^[3]

Note that just because a job applicant with a disability is qualified for a job that does not mean they must be offered the job. Employers may select the most qualified candidate for an open position.

To determine whether a person is qualified, it is necessary to look at two portions of the EEOC’s definition.

Job Requirements

The first is the “legitimate skill, experience, education, or other requirements” portion of the definition. This allows the employer to determine any necessary prerequisites for a job, such as:

• Education
• Work experience
• Training
• Skills
• Licenses
• Certificates
• Other job-related requirements, such as good judgment or the ability to work with people^[4]

This portion of the definition of qualified recognizes that employers are in the best position to determine the prerequisites for the positions they offer. If a person with a disability has the legitimate skill, experience, education, or other requirements, it is then necessary to look at the second portion of the EEOC’s definition. The second portion concerns essential functions.

Essential Functions

According to the EEOC, “essential functions are the basic job duties that an employee must be able to perform, with or without a reasonable accommodation,”^[5] in order to be qualified for a job. This means that even if a person needs to use a reasonable accommodation in order to perform the main parts of the job differently than someone else might, they are still qualified to do the job.

An essential function is one that is central to a person’s job. For example, an essential function of being a school bus driver is driving a bus.

[ Read: About Essential Functions ]

Employment Practices

The ADA prohibits discrimination against qualified individuals with disabilities in all employment practices. These include:^[6]

• Recruitment
• Pay
• Firing
• Promotion
• Job assignments
• Training
• Leave
• Layoffs
• Benefits
• All other employment related activities

When May an Employer Ask about a Disability?

If an employer asks an employee about a disability, this is called a disability-related inquiry. This term also applies to an employer asking a job applicant about a disability. To be more specific, the EEOC defines a disability-related inquiry as a question or series of questions that is likely to elicit information about a disability.^[7]

There are different rules about disability-related inquiries at each of the three stages of employment: pre-offer, post-offer, and during employment. These rules apply to all job applicants and to all employees.

Pre-offer

Pre-offer is the time before an applicant is offered employment. During this stage, a prospective employer is prohibited from making any disability-related inquiries, even if they are related to the job. However, an employer can ask about an applicant’s ability to perform the essential functions of the job. An employer can also ask an applicant to demonstrate or describe how they would do a task, but must allow for reasonable accommodation to be used in order to do this.

[ Read: About Reasonable Accommodations in the Workplace ]

The employer can also ask “can you perform the essential functions of the job with or without a reasonable accommodation?” This question is meant to be answered with a “yes” or a “no.”

Post-offer

The post-offer stage is after an applicant is given a conditional job offer, but before they start work. At this stage, according to the EEOC, an employer may make disability-related inquiries, “regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.”^[8]

During Employment

At the employment stage, which starts when the employee begins work, an employer can make disability-related inquiries that are “job-related and consistent with business necessity.”^[9] An inquiry is job-related and consistent with business necessity when an employer has a reason to believe, based on objective evidence, that an employee’s ability to perform a job is impacted by a disability or medical condition, or reason to believe an employee will pose a direct threat.

What If a Person Tells an Employer about a Disability?

When a person tells their employer that they have a disability or medical condition, they are disclosing their disability. A person may disclose a disability at any point in the employment process, though people with disabilities are under no obligation to disclose their disability to an employer or prospective employer.

In some cases, when a person chooses to disclose, they may just be sharing information about themselves. Often, people choose not to disclose until they need to do something differently on the job. In order for a person to receive a reasonable accommodation, they must disclose their disability to their employer. Disclosure that goes beyond sharing information about oneself initiates the reasonable accommodation process.

Disclosing a disability is a personal decision.^[10] This decision is informed by many things, including the environment established by the employer. Employers should always keep medical information confidential.

What Is Self-Identification?

Self-identification is when a job applicant or employee voluntarily fills out a form that asks whether they have a disability. Self-identification is not associated not with the ADA; instead, it comes from the Rehabilitation Act or other executive order in federal employment.

Section 503 of the Rehabilitation Act, for example, mandates that federal employers and certain federal contractors gather data on the percentage of their job applicants and employees who are disabled. Section 503 requires that this percentage be tracked and improved, with a goal of at least 7% of the employer’s workforce being people with disabilities.

When a person fills out this form, they should not give it to their manager. It should be turned in anonymously (companies generally set up a procedure for this), so data may be compiled without being linked to specific individuals.

More about the ADA and Employers

The goal of all these ADA-related regulations is to spell out the rules for how our society can include people with disabilities in the workplace. These rules apply to most employers. Add the Rehabilitation Act to the mix and there are rules that cover nearly all employers.

For assistance with better understanding these laws, you can contact us (see below on this page). We also recommend these Web resources:

• Small Business at Work Toolkit (created by the Northeast ADA Center!)
• EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)
• The ADA: Your Responsibilities as an Employer

References

[1] US Equal Employment Opportunity Commission (EEOC). (2008). The ADA: Your responsibilities as an employer.

[2] US Equal Employment Opportunity Commission (EEOC) (2002). Technical assistance manual: Title I of the ADA.

[3] US Equal Opportunity Employment Commission (EEOC). (2005). Americans with Disabilities Act: Questions and answers.

[4] US Equal Opportunity Employment Commission (EEOC). (1992). Technical assistance manual: Title I of the ADA.

[5] US Equal Opportunity Employment Commission (EEOC). (2008). The ADA: Your responsibilities as an employer.

[6] US Equal Opportunity Employment Commission (EEOC). (2008). The ADA: Your responsibilities as an employer.

[7] The US Equal Employment Opportunity Commission (EEOC). (1995). Enforcement guidance:  Pre-employment disability-related questions and medical examinations.

[8] US Equal Employment Opportunity Commission (EEOC). (2005). Enforcement guidance: Disability-related inquiries and medical examinations of employees under the Americans with Disabilities Act.

[9] US Equal Employment Opportunity Commission (EEOC). (2002). Technical assistance manual: Title I of the ADA.

[10] von Schrader, S., Malzer, V. & Bruyère, S. (2014). Perspectives on disability disclosure: The importance of employer practices and workplace climate. Employee Responsibilities and Rights Journal, 26(4), 237–255.