VOLUME II Chapter 19 Americans with Disabilities Act

• Jurisdiction: South Carolina

Chapter 19 Americans with Disabilities ActJ. Hagood TigheLiane Dublinski KozikFisher & Phillips LLP

I. Introduction and Overview

The purpose of Title I of the Americans with Disabilities Act (ADA or the Act) is to provide a clear and comprehensive national mandate for the elimination of discrimination against the more than 43 million individuals with one or more physical or mental disabilities. Title I of the ADA provides that employers may not discriminate against any "qualified individual on the basis of disability" in regard to any term or condition of employment.¹Unlike Title VII's prohibition of race discrimination, the ADA goes further than the requirement of nondiscrimination. The ADA requires affirmative action by employers in the form of "reasonable accommodations." Under the ADA, an employer is required to make reasonable accommodations if these accommodations will enable a qualified individual with a disability to successfully perform the job in question.

The origins and applications of the ADA can be traced back to Sections 503 and 504 of the Rehabilitation Act of 1973. The Rehabilitation Act, which applies solely to government contractors and recipients of federal assistance, prohibits discrimination against individuals with disabilities. The ADA is primarily designed to make the provisions of the Rehabilitation Act generally applicable to the private sector. Based on the similarity in statutory language and purpose, courts will routinely rely on cases decided under the Rehabilitation Act to interpret the ADA.²

The ADA applies to employment agencies, labor organizations, and joint labor-management committees.³ In order to help employers and other covered entities comply with the Act, the Equal Employment Opportunity Commission (EEOC), which is charged with enforcing the statute, has issued both regulations and interpretive guidance defining the rights and obligations under Title I of the ADA.⁴

Title I of the ADA was certainly not the government's first attempt to eliminate discrimination against individuals with disabilities, and as seen by the recent passage of the ADA Amendments Act (discussed in detail below), having a firm, clear, statutory framework for the protection of individuals with disabilities remains a government priority. Congress made it clear that the ADA is intended to be cumulative with all other laws protecting employment rights of disabled persons. Therefore, the ADA does not limit or invalidate the remedies, rights, and procedures of any federal law or law of any state or political subdivision that provides greater or equal protection to individuals with disabilities.⁵

II. Specific Unlawful Employment Practice Under Title I of the ADA

In its most general sense, the ADA prohibits employment discrimination against individuals who are disabled but still capable of performing the essential functions of the job in question. The ADA also requires employers to make certain accommodations if needed by a disabled individual to perform the essential functions of his or her job. With those two general requirements in mind, the Act identifies a number of specific employment practices considered unlawful under the Act.

A. Disparate Treatment

A covered entity may not fire, refuse to hire, fail to promote, transfer, or limit a job applicant or employee because of his/her disability.⁶ EEOC regulations are extremely broad and effectively prohibit discrimination on the basis of a disability in regard to any term, condition, or privilege of employment.

B. Disparate Impact

Under 42 U.S.C. § 12112(b), the use of facially neutral employment criteria which screen out or tend to screen out an individual with a disability or a class of individuals with a disability, because of their disability, is prohibited. This is similar to the traditional disparate impact analysis applied in the context of Title VII claims. When a test or selection criterion has a disparate impact on individuals with disabilities, an employer must show the criterion has a direct correlation to the performance of the job and is consistent with business necessity.⁷ Further, any test must accurately reflect the skills, aptitude, and other factors necessary for the job, and the test cannot be a disguised attempt to uncover a disability. For example, a strength requirement which does not correspond to the actual strength requirements of the job may unlawfully eliminate individuals with a heart condition, a back condition, or other disabilities that do not prevent the person from actually performing the job.

Although employment criteria or tests which have a disparate impact on individuals with a disability can violate the ADA, employee benefit plans do not violate the ADA simply because their terms have a disparate impact on disabled individuals.⁸ If the exclusions or limitations of a benefit plan are determined by actuarially based risk calculations and are not a subterfuge to evade the requirements of the ADA, the terms will not violate the ADA even though they disparately impact disabled persons.

C. Discrimination on the Basis of Association with Disabled Individual

The ADA specifically prohibits an employer from making an employment decision regarding an applicant or employee based on the fact that the individual is related to or associated with a disabled individual.⁹ For instance, an employer may not refuse to hire a job applicant because the applicant's spouse is disabled and may require the applicant to miss time to care for his/her spouse. The regulations specify that this provision applies to discrimination with regard to other employment privileges and benefits, such as health benefits.

D. Failure to Reasonably Accommodate

An employer may not refuse to make reasonable accommodations for a qualified disabled individual. An illegal refusal to accommodate includes a decision by an employer not to hire or promote a disabled individual because doing so would require the employer to make reasonable accommodations.¹⁰

E. Illegal Employment Contracts

A covered entity may not enforce any agreement or contract which is inconsistent with the terms of the ADA.¹¹ This prohibition against discriminatory contracts applies to collective bargaining agreements as well as any other contracts between covered entities and employment agencies, labor unions, apprenticeship programs, or fringe benefits providers.¹²

F. Segregation/Classification on Basis of Disability

The ADA prohibits an employer from limiting, segregating, or classifying a job applicant or employee, because of a disability, in a manner that adversely affects his or her employment opportunities or status.¹³ This would include a hiring practice which resulted in individuals with disabilities being hired into positions with little chance for advancement.

G. Unlawful Medical Exams or Inquiries

A covered entity is specifically prohibited from requiring medical examinations before an offer of employment has been made. Further, an employer may not make inquiries relating to the existence or severity of a disability unless such inquiries are authorized by the Act. Although the subject of medical questions will be addressed in greater detail later, it is sufficient here to understand that in the pre-employment context an employer is limited to inquiries which focus on an individual's ability to perform job-related functions.¹⁴

H. Unlawful Retaliation

Finally, employers are prohibited from retaliating against a person who files a charge, testifies, or assists in any investigation under the ADA.¹⁵ Any individual who has been aggrieved by violation of this anti-retaliation provision is entitled to the same remedies and procedures available to all other ADA claimants.¹⁶

III. Definitions Under the ADA

The requirements of the ADA, for the most part, are nothing more than a collection of statutory terms, and the meaning of these terms is crucial to understanding the ADA. For example, an employer's duty to provide "reasonable accommodation to a qualified individual unless it would create undue hardship" is meaningless unless the key terms are sufficiently defined. Unfortunately, as is the case with a disturbing number of recent statutes, Congress failed to provide specific definitions to many of the key terms of the ADA. Therefore, plaintiffs, defendants, and attorneys historically have been forced to rely heavily on EEOC regulations and interpretive case law to determine what the key terms of the ADA truly mean.

On March 25, 2011, EEOC promulgated its Final Regulations defining a number of key terms in response to the ADA Amendments Act of 2008¹⁷ (the "ADAAA").¹⁸Congress enacted the ADAAA in order to provide guidance on interpreting the ADA and to specifically reject the holdings of several Supreme Court decisions and portions of EEOC's initial ADA regulations. The ultimate effect of the ADAAA is to make it easier for an individual to establish that he or she has a disability within the meaning of the ADA. Congress wants the focus of ADA cases to be on whether discrimination occurred, not whether an individual has a disability.¹⁹ The following is an overview of some of the key terms and the definitions that have developed.

A. Disability

The ADA's basic definition of "disability," which remains the same following the ADAAA, is "a physical or mental impairment that substantially limits one or more major life activities . . . ."²⁰ The term "disability" also includes a record of a substantially limiting impairment or being regarded as having a substantially limiting impairment.²¹ A major change to the definition of disability as a result of the ADAAA is the addition of Subsection 4 to 42 U.S.C.A. § 12102, which makes clear that the definition of disability should be construed broadly to the furthest extent permitted by the ADA. Again, the purpose of this addition is to make it easier for an individual to show that he or she is disabled.

According to the Final ADAAA Regulations, EEOC considers any...