Chapter 5 - § 5.6 • WHAT TYPES OF DISCRIMINATION ARE PROHIBITED?

• Jurisdiction: Colorado

§ 5.6 • WHAT TYPES OF DISCRIMINATION ARE PROHIBITED?

The ADA prohibits the following seven categories of employment discrimination:

§ 5.6.1—Discriminatory Limitation, Segregation, Or Classification

An employer cannot limit, segregate, or classify a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee. 42 U.S.C. § 12112(b)(1). "Thus, for example, it would be a violation of this part for an employer to limit the duties of an employee with a disability based on a presumption of what is best for an individual with such a disability, or on a presumption about the abilities of an individual with such a disability." 29 C.F.R. Pt. 1630, App. to Pt. 1630 — Interpretive Guidance to Title I of the ADA, § 1630.5.

§ 5.6.2—Arrangements Or Relationships That Result In Discrimination

The ADA also prohibits employers from participating in a contractual or other arrangement or relationship — including with an employment or referral agency or labor union — that has the effect of subjecting a qualified applicant or employee with a disability to discrimination on the basis of disability. 42 U.S.C. § 12112(b)(2). See Schroeder v. Connecticut Gen. Life Ins. Co., No. CIV. A. 93-M-2433, 1994 WL 909636, at *3 (D. Colo. Apr. 22, 1994) ("defendants are properly before the court because they are involved in the contractual arrangement claimed to be a violation of the ADA").

§ 5.6.3—Discriminatory Standards, Criteria, Or Methods Of Administration

The ADA also makes it unlawful for covered entities to utilize standards, criteria, or methods of administration that (1) have the effect of discrimination on the basis of disability, or (2) perpetuate the discrimination of others who are subject to common administrative control. 42 U.S.C. § 12112(b)(3). This imports the disparate impact theory into the ADA. See Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) (recognizing that "[b]oth disparate treatment and disparate impact claims are cognizable under the ADA"); Hans v. Bd. of Shawnee Cty. Comm'rs, 775 F. App'x 953, 960 (10th Cir. 2019) (noting Tenth Circuit recognizes disparate impact theory under ADA).⁴

Employers may hold employees with disabilities to the same conduct standards that apply to employees without disabilities only if the standards are job-related and consistent with business necessity. Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1086 (10th Cir. 1997); EEOC Publication: The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, www.eeo...