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Americans with Disabilities Act (ADA)
What Is the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act (ADA) is an important civil rights law that prohibits discrimination based on disability. The ADA protects both employees and “otherwise qualified” candidates seeking employment. Portions of the law that create labor rights are enforced by the Equal Employment Opportunity Commission (EEOC).
History of the Americans with Disabilities Act
Passed in 1990, the ADA is the most comprehensive anti-discrimination law that protects individuals with disabilities. Comparatively, the ADA is a recent civil rights law, but Americans with disabilities had been fighting for equal rights for decades before 1990, most successfully after World War II when veterans with disabilities joined the fight. Progress stalled shortly after, but regained momentum during the civil rights movement in the 1960s.
Finally, in 1988, disability rights activist Marca Bristo and allies in Congress presented the ADA to the United States Senate. The law passed in the senate in 1989, but progress stalled again, this time in the House of Representatives. The ADA passed that summer, on July 26, 1990.
Who Does the Americans with Disabilities Act Apply To?
Under the ADA, it is illegal to discriminate based on disability against an employee or a qualified person seeking employment with a public or private company. However, the ADA doesn’t apply to everyone or to every situation. There are three threshold requirements your organization must meet for the ADA to apply:
1. The Company Must Have at Least 15 Employees
The ADA applies only to companies and state and local governments that have “15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” This includes “any agent” of the company or company owner.
Even if the ADA doesn’t apply, state anti-discrimination laws may still apply.
2. The Person in Question Must Have a Disability
Only individuals with a disability as defined under the ADA are covered by the ADA. The legal definition of “disability” is different from the medical definition. Under the ADA, a person has a disability if:
- They have a physical or mental impairment that substantially limits one or more major life activities;
- They have a record of such an impairment; or
- They’re regarded as having such an impairment.
Examples: Has a Physical or Mental Impairment
- Loss of ability to use one or more limbs.
- An employee who has epilepsy.
- A person who currently has cancer.
Examples: “Has a Record” of Such an Impairment
- A person whose cancer is now in remission.
- A person who was hospitalized with complications from diabetes, but who has now recovered and is on medication.
Examples: “Is Regarded as” Having Such an Impairment
- A person has a speech impediment but is treated as though they have a disability at work.
3. The Person in Question Must be Qualified
The employee or applicant must be qualified for the job. To be qualified as it’s defined under the ADA, the person must be able to perform the essential functions of the job in question with or without a reasonable accommodation.
Protections Provided by the ADA
Below is a list of the key protections afforded by this law:
1. Employers Cannot Discriminate on the Basis of Disability
The ADA prohibits discrimination on the basis of disability against qualified individuals in the following:
- Job application procedures
- Employee compensation
- Job training
- Other terms, conditions and privileges of employment
What constitutes discrimination is broadly interpreted under the ADA. It can include “placing limitations on, segregating, or classifying” a qualified applicant in a way that adversely affects their opportunities or “using standards or criteria” that discriminate against an employee with a disability.
Other forms of discrimination can be found under 42 USC § 12112.
2. Right to Reasonable Accommodations
The ADA requires employers to provide reasonable accommodations for disabilities to their employees. A reasonable accommodation is a change to a job or work environment that provides the employee access to the job application process, allows them to perform the essential functions of the job or allows them to enjoy other benefits and privileges of employment.
Employers do not need to provide an accommodation if it imposes an “undue hardship” on the company. This term is defined in the law as “an action requiring significant difficulty or expense, when considered in light of” factors such as the “the nature and cost of the accommodation needed.”
Additional factors can be found in 42 USC § 12111(10)(B).
3. Retaliation Prohibited
An employer cannot retaliate against an employee or applicant for exercising their rights under the ADA. 42 USC §12203(a).
4. Other Employee Responsibilities
Employers have additional responsibilities under the ADA. For an overview of employer responsibilities, read EEOC’s publication, “The ADA: Your Responsibilities as an Employer.”
How To Make Sure Your Company Stays Compliant With the ADA
The ADA has many requirements. Some are so technical that it’s easy to make a mistake. The following steps will help you shore up your ADA compliance.
Step 1: Read EEOC’s Enforcement Guidance
Step 2: Establish Standard Operating Procedures for ADA Processes
One of the biggest tasks HR has under the ADA is to ensure that all reasonable accommodation requests are processed compliantly. Processes related to recruitment and hiring must also be reviewed to make sure hiring doesn’t discriminate against qualified applicants based on disability.
Standard operating procedures (SOP), which are step-by-step directions for how to complete a given process, will ensure that reasonable accommodations, recruitment processes and other aspects of employment are compliant with ADA.
Step 3: Check Your Communications Surrounding ADA
Communication to Disclosing Employees or Applicants
You can inform all employees and applicants that they have rights under the ADA, including the right to a reasonable accommodation. For example, under the ADA, you’re required to add a notice in an accessible format on your job postings informing applicants of the basic provisions of the ADA. On the other hand, you can’t ask an employee to disclose a disability. For example, you can’t ask them whether they have a disability after making them a conditional offer.
Communication Between Supervisors and HR
Employees and applicants don’t need to submit a request for an accommodation in writing. Because disability disclosures and accommodations are often made to supervisors or managers, and very often not in writing, it’s important to have a communication plan in place to make sure disclosures and requests don’t fall through the cracks.
Step 4: Train Your Employees on How ADA Protects Qualified Employees and Applicants
What is the purpose of the Americans with Disabilities Act? All employees, particularly supervisors, should be able to answer this question.
Employees should be trained in ADA compliance to ensure they understand what the purpose of the ADA is and how it impacts them. This is very important for supervisors and managers, as disability disclosures and requests for accommodations are likely to come to them first.
Penalties for Violating ADA regulations
A company can be fined up to $75,000 for their first ADA violation and $150,000 for additional violations. Further, employees can also sue you for your ADA violations. ADA violations often overlap with other types of legal liability, like worker’s compensation and personal injury liability. Damages for these kinds of lawsuits will vary depending on the circumstances.
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