§6.1 II. The Provisions Of The Americans With Disabilities Act (Ada)

JurisdictionNew York

II. The Provisions of the Americans with Disabilities Act (ADA)

The reader's first question may be: What is the ADA? According to the United States Department of Justice's Civil Rights Division:

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush. The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life—to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin—and Section 504 of the Rehabilitation Act of 1973—the ADA is an "equal opportunity" law for people with disabilities.
To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered. 444

A disability as determined under the current version of the Americans with Disabilities Act, is defined as follows:

(1) Disability
The term "disability" means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).
(2) Major life activities
(A) In general
For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
(B) Major bodily functions
For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 445

When one looks to the protections of the ADA, it should be understood that the ADA (just like most of the other protections discussed elsewhere in this book) applies to the entire "life cycle" of employment: from the advertising of a position, to collecting résumés, to interviewing, hiring, training and promotion decisions, and termination/retirement/death.446 Indeed, the ADA's purpose or general rule is stated in the statutory language:

(a) General rule
No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 447

In addition, the ADA applies to companies doing business in, or controlling a corporation in, a foreign country, unless complying with the provisions of the ADA would result in violation of the laws of that foreign jurisdiction.448 Thus, if the provisions of the ADA, as complied with, would not violate the laws of a nation in which the reader operates a business, take care to comply with the U.S. law, or face potential litigation at your peril.

To qualify as a business with employees covered by the ADA, the business must employ at least 15 employees.449 That is but a shorthand measure for convenience, however. The actual calculation to determine the number of employees to qualify for coverage is a little more complicated, and requires assessment of the number of employees in 20 or more weeks of the current or preceding calendar year (and has been reduced from an original number of 25 employees in 20 or more calendar weeks):

(4) Employee
The term "employee" means an individual employed by an employer. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.
(5) Employer
(A) In general
The term "employer" means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.
(B) Exceptions
The term "employer" does not include—
(i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe; or
(ii) a bona fide private membership club (other than a labor organization) that is exempt from taxation under section 501(c) of Title 26. 450

Should disputes arise under the ADA, such that a claim is made, employers and employees must be certain to break down the number of employees per week, to ensure that the business either was or was not a covered entity for the time period of the claim. If the number of employees cannot be verified such that the employer falls under the ADA, claims are dismissed.451 The "current year" referred to is the year in which the alleged claim occurred.452 An employment agency can, if acting as an employer, meet the definition and be sued as an employer under the ADA.453 Furthermore, reading the cases on the matter, it appears that the 20 calendar weeks need not be consecutive for measurement purposes.454 However, partners/shareholders of a business, those "most able to control" the operations of the business, are not included in the count for number of employees.455

One may ask why such a high threshold for the number of employees, considering that a good number of businesses will have less than 15 employees. The answer is that Congress made the decision "to limit the coverage of the legislation to firms with 15 or more employees . . . namely, [to ease] entry into the market and preserv[e] the competitive position of smaller firms."456

After being signed into law in 1990 by President George H.W. Bush, the ADA was read and interpreted more and more narrowly in application of the "terms 'substantially limits' and 'major life activity'"457 when determining qualifying disabilities, as well as application of the ADA to those "regarded as"458 having a disability. Congress, however, had intended for the ADA to be interpreted broadly, applying greater protections in the workplace. The "narrow interpretations resulted in the denial of the ADA's protection for many individuals with impairments that Congress intended to cover under the law, such as cancer, diabetes, and epilepsy."459 Additionally, the Supreme Court had required consideration of ameliorative or mitigating devices or effects (such as hearing aids or medications) before determining a plaintiff had a qualifying disability.460 As a result, following a series of narrowing interpretations by the U.S. Supreme Court—in decisions including Sutton v. United Air Lines, Inc.461 and Toyota Motor Mfg., Kentucky, Inc. v. Williams462—Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), which was subsequently signed into law by President George W. Bush on September 25, 2008.463 "The ADA Amendments Act provides clear direction about what 'disability' means under the ADA and how it should be interpreted so that covered individuals seeking the protection of the ADA can establish that they have a disability."464

New York-based ADA claims are subject to a three-year statute of limitations.465 To state a claim for relief under the ADA, alleging discrimination on the basis of disability or perception of/regarded as disability, the plaintiff bears the initial burden. Thereafter the McDonnell Douglas burden shift is applied to ADA cases, as well.466

To make out a prima facie case of employment discrimination through indirect evidence under Title I, a plaintiff must show that "1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced." 467

It is observed that the Sixth Circuit applies the five-prong test mentioned above (called the "Monette formulation" in Sixth Circuit caselaw).468 However, other courts have applied a three-prong test, which may be more familiar to some, requiring the plaintiff show "(1) that he or she is an individual with a disability; (2) who was otherwise qualified to perform a job's requirements, with or without reasonable accommodation, and (3) who was discharged solely by reason of the disability" (the "Mahon formulation" in the Sixth Circuit).469 Still others, such as those in New York, utilize a four-prong test: "To establish a prima facie ADA discrimination claim, a plaintiff must show that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability."470

A plaintiff must show that they were rejected from a position for which they were otherwise qualified, or the claim will fail.471 A plaintiff must also identify the disability(s) at issue, and which qualifies them...

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