Reducing Employer Liability Newsletter
A Publication of PEO7.com

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This is a monthly newsletter.  Each issue covers one specific area of employer liabilities with suggestions to control that liability.  You are not to rely on this publication as legal advice and must seek competent legal assistance.

In This issue: Americans With Disabilities Act

Employer Liability Under the Americans with Disabilities Act (ADA)

Carpal tunnel syndrome, sleep apnea, a difficult pregnancy, severe phobias, HIV and organ transplants are just a few of the impairments that can qualify employees as disabled under the ADA (American with Disabilities Act).  This disabled qualification bestows employers with a duty to make accommodations for employees with qualified impairments and exposes them to serious liability if they do not.  Unsuspecting and uninformed employers can also get themselves in hot water if they treat an employee “as if” they have a disability.

Disabled Doesn’t Always Mean Disabled

If an employer treats an employee as disabled, the treatment alone may qualify the person as disabled under the ADA.  Take for example, the Director of Social Services at a facility in Minnesota.  She had trouble getting along with colleagues and other staff.  After making some changes in the organizational chart to alleviate some of the interpersonal problems, the trouble continued.  The social worker’s supervisors requested that she submit to a psychological evaluation, which she refused to do.  She was later fired from her job.  She sued her employer under the ADA.  The courts held that her employer’s regarded her as disabled and sustained her claim that termination could have been due to her “disability”.

In other cases, employers have altered the workload of employees who they mistakenly believed to have HIV or high blood pressure without a request for accommodation from the employee.  This is called the “regarded as” standard and is well settled in this area of law.  Employers need to beware of making accommodations for employees who have not requested it.  Although the federal law is designed to be a “clear and comprehensive national mandate for the elimination of discrimination against people with disabilities”, in practice, it poses much confusion for employees and employers, as well as the courts.

What Exactly Does the ADA Cover?

The ADA aims to eliminate the discrimination of qualified individuals in regard to job application procedures, hiring or advancement, compensation, job training and in the discharge of employees. The ADA provides for compensatory damages and can result in extended and costly litigation.

How Do You Determine Whether a Person is Disabled Under the ADA?

Under the ADA a complex standard is used to qualify an individual as disabled, which doesn’t mean people with the above impairments can’t or don’t qualify.  There is an important distinction: A person may in fact be disabled by any lay person’s account, but they may not be disabled in relation to the job that they wish to, are now or were performing.  This turns on whether or not they are “substantially limited” in a major life activity. Conversely, a person may not seem disabled (someone with an eye impairment that only affects them while driving for example), but they might qualify if their impairment limits a major life activity and if their job entails operating a motor vehicle.

Under the ADA, all individuals with a “qualified” (meaning recognized under the ADA) disability are entitled to the same protection regardless of the specific disability.

For the purposes of ADA litigation, the courts have to engage in a relative analysis of the impairment (in comparison to individuals in the general population) whether the impairment qualifies as substantially limiting to a major life activity, and then the court will analyze that impairment in relationship to the individual’s specific job duties.  These factors are evaluated carefully on a case-by-case basis as mandated by the Supreme Court. Under the ADA there are no “per se” or clear-cut disability cases.

What Does the Employee Have to Prove to Sustain an ADA Action?

Whether the case involves a person interviewing for a job, one currently holding a position at your company, or whether they have been terminated and are now filing an action; the burden of proof falls upon the alleged disabled person to prove that they qualify to bring suit under the ADA.  This means that the employee (present or past) has to prove that he qualifies as disabled, that he is qualified to perform the tasks of the job with or without reasonable accommodation and that he suffered an adverse employment action due to his disability.

Making Sense of The ADA Requirements

The greatest difficulty in applying the law to disability discrimination cases involves making sense of just what “qualified disability” means under the ADA, as well as understanding the “substantially limits a major life activity” and reasonable accommodation requirements.

What Constitutes a Disability Under the ADA?

The ADA defines a disability as a physical or mental impairment that “substantially limits” one or more of the “major life activities”.  A medical diagnosis is not sufficient and a recent Supreme Court decision made it clear that the limitation cannot be viewed purely in relationship to the employee’s job function or requirements unless the major life activity in the claim is that of working.  In order to establish an ADA claim under the major life activity of working an individual must be precluded from more than one type of job, specialized job or particular job of choice.  If jobs utilizing an individual's skills are available, or if a host of different types of jobs are available, one is not precluded from a broad range of jobs.

 In all other cases, the courts will determine whether or not a person is substantially restricted or prevented from performing tasks that are of “central importance to most peoples’ daily lives” (i.e. a major life activity such as walking, seeing, hearing) in comparison to the general population and whether or not that impairment translates to their work in a very specific way.  If so, it may qualify as a disability under the ADA. 

Consider the example of a woman assembly-line worker with carpal tunnel syndrome who claimed that she could not perform some of the manual tasks involved in her job. In her personal life she had given up dancing, gardening, sweeping and had altered the way that she played with her children.

The Supreme Court ruled that she was not qualified as disabled under the ADA because there was no evidence that her ability to perform manual tasks was  “substantially limited” since she was able to perform certain major life activities in the form of manual tasks at home.  If she had been unable to take care of her personal hygiene, do the laundry or other chores around the house central to everyday life, the court may have found a disability under the ADA.

What Does Reasonable Accommodation Mean?

The ADA requires employers to make reasonable accommodations for employees with known and disclosed disabilities as long as it does not prove an undue hardship on the employer.  But remember, the individual with the disability must be able to perform the “essential functions” of his job with or without reasonable accommodations.  

According to case law, it is up to the employee to request the accommodation and it becomes the employer’s obligation to provide what is needed.  It is important not to assume that the employee’s request is the extent of the obligation on the part of the employer.  If an employer knows of an individual’s limitation and complies with accommodation requests, but later realizes that the limitation may be affecting other performance, the employer may have an obligation to make other accommodations without being asked.  “What matters are not formalisms about the manner of the request, but whether the employer… can be fairly said to know of both the disability and the desire for accommodation.”

What Do I Need to Know About Local Discrimination Laws?

Local or state laws may have some extended provisions beyond the requirements of the ADA.  Make sure that you know both.  For more information about how to find a consultant to help you meet the ADA requirements, check out: www.peo7.com.

ABOUT THE AUTHOR
David Sheehan is a licensed attorney and a member of the California State Bar, specializing in Business law, Employment Law, and Estate Planning. 

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