Ron Schwartz, an attorney at Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck, P.C., is an employment law lawyer who represents workers who have disability/handicap discrimination claims. Call (312) 263-6330.
INTRODUCTION
This article is for informational purposes only and should not be construed as legal advice regarding the Americans with Disabilities Act. It is limited to federal law. The Illinois Human Rights Act addresses “handicap discrimination.” The City of Chicago and Cook County also have disability discrimination laws.
The ADA Amendments Act of 2008 brings renewed hope that the Americans with Disabilities Act (“ADA”) will assist persons with disabilities to combat discrimination and better function in the workplace. The ADA is a federal statute that prohibits employers from discriminating against qualified individuals on the basis of disability. Federal employees and applicants are covered by Section 504 of the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The two laws should be interpreted consistently according to the new ADA law.
The ADA covers (1) hiring, (2) firing, (3) pay and (4) other terms, conditions, and privileges of employment. The ADA applies to employers with 15 or more employees. The ADA also protects people from discrimination based on their relationship with a person with a disability, even if they do not themselves have a disability. For example, it is illegal to discriminate against an employee because her husband has heart disease. On January 1, 2009, the new ADA Amendments became effective.
ADA COVERAGE
A “disability” for purposes of the ADA is defined as: (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. The definition is to be construed to favor broad coverage.
An impairment that is episodic or in remission is a disability if it substantially limits a major life activity when it is active. The Equal Employment Opportunity Commission (“EEOC”) defines “major life activities” as walking, seeing, speaking, hearing, breathing, learning, performing manual tasks, caring for oneself, reading, bending, communicating and working. Other activities such as sitting, standing, lifting, or reading are also major life activities. Major life activities also include the operation of “major bodily functions” such as neurological. The ADA does not apply to conditions that are “transitory.” “Transitory” is defined as having an actual or expected duration of six months or less.
A qualified employee or applicant with a disability is someone who with or without reasonable accommodation, can perform the essential functions of the job. Unless the reasonable accommodation would pose an “undue hardship” on the employer’s business, it must allow the accommodation. Undue hardship is something that would involve significant difficulty or expense to the employer. In making this determination, an employer’s (1) size, (2) financial resources, and (3) the kind of business are considered. A person whose disability is well controlled by medications may need no accommodation. As to a reasonable accommodation, a large corporation, for example, may be able to transfer the employee to a vacant position, a much less likely possibility for a small business.
There is an additional protection which is part of the ADA. It is unlawful to retaliate against persons who oppose employment practices that discriminate based on (1) having a disability, (2) filing a discrimination charge, (3) testifying, or (4) participating in any way in an investigation, proceeding, or litigation under the ADA.
An employee cannot be harassed because he or she has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory. Harassment includes offensive remarks about a person’s disability. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision as when the employee is fired or demoted based on harassment. The harasser can be the employee’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
MEDICAL EXAMS
An employer making hiring decisions cannot ask job applicants about the existence, nature, or severity of a disability. Employees may be asked about their ability to perform specific job functions. When employers make tentative offers of employment they may require a medical exam. However, the exam must be required for all new employees in similar jobs. The exam must be related to the job and to the employer’s business needs.
IMPROVEMENTS TO THE ADA
Congress now stresses that the definition of “disability” should be interpreted broadly. The ADA Amendments Act has made important changes to the definition of the term “disability.” The ADA Amendments Act rejects the holdings in several U.S. Supreme Court decisions that had severely limited the scope of the ADA. The ADA now states that those “mitigating measures” other than “ordinary eyeglasses or contact lenses” will not be considered in assessing whether an individual has a disability. For example, taking medication to ease or eliminate symptoms of heart disease is a mitigating measure that should not be considered in determining whether one is entitled to coverage under the ADA.
The ADA Amendments (1) clarify that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; (2) states that an individual subjected to an action prohibited by the ADA, such as failure to hire, because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor; and (3) states that individuals covered only under the “regarded as” category are not entitled to reasonable accommodation.
The ADA Amendments are of particular importance to employees who have chronic illnesses such as diabetes. Persons taking medication with episodic conditions and those in remission are now clearly covered by the ADA. They no longer face the frustrating situation of not being considered “disabled” by the courts if an adverse action is taken against them by their employer. However, employers who argue that they were unaware of an employee’s disability may not be held liable under the ADA.
This presents a dilemma for persons with "hidden" disabilities who are able to work. To tell or not to tell, that is the question. Finding the answer to this vexing dilemma involves an examination of both personal and legal considerations. Voluntary disclosure of one’s disability may make supervisors and co-workers uncomfortable, or worse. If, however, the employer has knowledge of the employee’s condition reasonable accommodations can be worked out in advance.
REASONABLE ACCOMMODATIONS
From both the employer and the employee’s perspective, achieving a reasonable accommodation is a fact specific undertaking. The single, greatest mistake that an employee with a disability can make is approaching an employer with a sense of entitlement as to a particular accommodation. Instead, the employee should approach the process as a joint collaboration. With this attitude the employer is more likely to be receptive to providing the accommodation(s) that are needed.
An employer is not required to make an accommodation if “undue hardship” would result. This means that if an accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business, it would not be reasonable. However, an employer may not refuse to provide an accommodation just because it involves some cost. If more than one accommodation works, the employer may choose which one to provide. In short, an employee is not entitled to insist on only one accommodation if there are others that reasonably are available. The ADA does not require as a reasonable accommodation actions that would violate a seniority system at the expense of other employees.
ENFORCING ADA RIGHTS
Before an ADA lawsuit is filed, a charge of discrimination must be filed with the Equal Employment Opportunity Commission or another agency authorized by the EEOC. In Illinois, the charge must be filed with the EEOC within 300 days of the date of the discriminatory act. Another option is to file a charge of discrimination with the Illinois Department of Human Rights within 180 days of the date of discrimination.
The remedies provided by the ADA are (1) back pay, (2) reinstatement, (3) compensatory damages for emotional distress, (4) punitive damages, and (5) attorney’s fees. However, the ADA works best when employees and employer collaborate to find solutions to workplace issues long before a lawsuit is even contemplated by them.
If you believe you may have a claim under the ADA, please call Ron Schwartz at 312-263-6330 to discuss whether an in-person consultation should be scheduled.
Revised: 9/2/2010
Nothing on this attorney web site should be understood as offering legal advice regarding handicap or disabilities law or any other legal subject.
