Basics Under Title I Continued

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

This is the second part of our two-part look at Title I of the Americans with Disabilities Act (Title I). In the first episode dedicated to Title I, I covered important definitions under Title I. Some of the concepts discussed in this episode may be easier to understand if you have some familiarization with the material from the previous episode. Still you should learn importnat things from this episode even if you did not review the previous episode.

As I said last time, there is no way to cover this kind of material without using words like impaired that many of us in the disability community don’t use. I’m using words like impaired here because those are the words used in the law.
Whether we like it or not, when communicating about the law we are required to use terms that are outdated. Maybe someday the ADA will be revisited and the updated law will provide for meaningful enforcement and be written in modern language. For now, we have to discuss the law as it has been written.

Our discussion is based on the rules defining compliance with Title I as set forth by the Equal Employment Opportunity Commission (EEOC) in 29 C.F.R. § 29.1630. To make this presentation easier to follow, I’m not going to mention the exact citations to different sections of the Code of Federal Regulations. As always, I will link to the individual sections when this episode is posted to the Demand Our Access website.

In listening to the previous episode, I decided that the term "covered entity", while used in the Code of Federal Regulations, may be too confusing for people just learning about Title I. So, I have decided to replace the term "covered entity" with the term "employer". While I’m doing this to make the presentation easier to follow, it must be remembered that not all employers are covered by Title I; for example, if an employer employs fewer than 15 employees that employer is not covered by Title I.

Important Concepts Under Title I

Discrimination Prohibited

It is unlawful for an employer to discriminate on the basis of disability against a qualified individual in regard to the following:

1. Recruitment, advertising, and job application procedures
2. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring
3. Rates of pay or any other form of compensation and changes in compensation
4. Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists
5. Leaves of absence, sick leave, or any other leave
6. Fringe benefits available by virtue of employment, whether or not administered by the covered entity
7. Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities and selection for leaves of absence to pursue training
8. Activities sponsored by a covered entity, including social and recreational programs
9. Any other term, condition, or privilege of employment

The term discrimination includes but is not limited to the acts described in 29 C.F.R. § 1630.4 through 29 C.F.R. § 1630.13. Even though I won’t mention those citations, I will now, hopefully, help you begin to become familiar with the types of disability discrimination discussed by the EEOC in those sections of the Code of Federal Regulations.

Limiting, Classifying, and Segregating

It is unlawful for an employer to limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability.

Contractual or Other Arrangements

It is unlawful for an employer to participate in a contractual or other arrangement or relationship that has the effect of subjecting the employer’s own qualified applicant or employee with a disability to the discrimination prohibited by Title I.

Contractual or Other Relationship Defined

The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with an employment or referral agency, labor union, including collective bargaining agreements, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

Application

This section applies to an employer, with respect to its own applicants or employees, whether the entity offered the contract or initiated the relationship, or whether the employer accepted the contract or acceded to the relationship. An employer is not liable for the actions of the other party or parties to the contract which only affect that other party’s employees or applicants.

Standards, Criteria, or Methods of Administration

It is unlawful for an employer to use standards, criteria, or methods of administration, which are not job-related and consistent with business necessity, and that:

• Have the effect of discriminating on the basis of disability; or
• That perpetuate the discrimination of others who are subject to common administrative control

Relationship or Association with a Person with a Disability

It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.

Not Making Reasonable Accommodation

• It is unlawful for an employer not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
• It is unlawful for an employer to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such employer to make reasonable accommodation to such individual’s physical or mental impairments.
• An employer shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act.
• An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.
• An employer is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the actual disability prong or the record of a disability prong under the definition of disability. Someone who is regarded as having a disability is not entitled to reasonable accommodations under Title I.

Qualification standards, tests, and Other Selection Criteria

It is unlawful for an employer to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the employer, is shown to be job related for the position in question and is consistent with business necessity.

Qualification Standards and Tests Related to Uncorrected Vision

Not withstanding the typical rule that people whose vision can be corrected to the normal range through the use of standard eyeglasses and contact lenses are not covered by Title I, an employer shall not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criterion, as used by the employer, is shown to be job related for the position in question and is consistent with business necessity. An individual challenging and employer’s application of a qualification standard, test, or other criterion based on uncorrected vision need not be a person with a disability, but must be adversely affected by the application of the standard, test, or other criterion.

Administration of Tests

It is unlawful for an employer to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

Retaliation and Coercion

Retaliation

It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by Title I or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in Title I.

Coercion, Interference, or Intimidation

It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by Title I.

Medical Examinations and Inquiries

The topic of medical examinations and inquiries is very technical. For this section, I’m going to leave the Code of Federal Regulations and try to explain medical examinations and inquiries under Title I as simply as I can explain them. In trying to keep this explanation simple, I’m not going to cover everything that could be covered here; instead, I’m going to provide what I think is the information most people need in most situations.

If you are interested, the information about medical examinations and inquiries is set forth in 29 C.F.R. § 1630.13 (Prohibited Medical Examinations and Inquiries) and 29 C.F.R. § 1630.14 (Medical Examinations and Inquiries Specifically Permitted).

There are three times when the question of medical examinations and inquiries arise: before a job offer is made; after a job offer has been made; and once someone is working for an employer.

Pre-Offer Exams and Inquiries

• An employer may not ask or require a job applicant to take medical examination before making a job offer.
• An employer cannot make any pre-offer inquiry about a disability or the nature or severity a disability.
• An employer may ask questions about your ability to perform specific job functions and may, with certain limitations, ask a person with a disability to describe or demonstrate how they will perform those functions.
• An employer may condition a job offer on the satisfactory result of a post-offer medical examination or inquiry if it is required of all entering employees in the same job category.

Post-offer Exams and Inquiries

• A post-offer medical examination or inquiry does not have to be job related and consistent with business necessity.
• If an individual is not hired because of a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring them must be job related and consistent with business necessity.
• The employer must also show that no reasonable accommodation was available that would enable the person with a disability to perform the essential job functions or that accommodations would impose an undue hardship.
• A post-offer medical examination may disqualify someone if the employer can demonstrate that the individual would pose a direct threat in the workplace.
• A post-offer medical examination or inquiry may not disqualify someone who is able to perform the essential functions of the job because the employer speculates that the disability poses the threat of future injury.

Employee Medical Exams and Inquiries

• After a person starts work, a medical examination or inquiry of an employee must be job related and consistent with business necessity.
• Employers may conduct employee medical examinations where there is evidence of job performance issues or safety problems that the employer reasonably believes is related to a medical condition
• examinations required by other federal laws
• Return to work examinations when the employer reasonably believes the employee will be unable to do their job may pose a direct threat because of a medical condition
• Voluntary examinations that are part of employee health programs

Confidentiality

Information from all medical examinations and inquiries must be kept separate from general personnel files. The records from medical examinations and inquiries must be made available only to certain people and under certain conditions.

Tests for illegal drugs are not considered medical records under Title I and do not need to be kept confidential in the way that records from medical examinations and inquiries must be kept confidential.

Employer Defenses

I’m not going to cover employer defenses to charges of disability discrimination. In case you are interested in learning about how Title I imagines employers defending themselves when faced with a charge that they discriminated against someone on the basis of disability, you can visit 29 C.F.R. § 1630.15.

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