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Americans With Disabilities Act Training Presentation (ADA)
- 1. Americans with Disabilities Act (ADA) BUS 4046 UNIT 3 JACKIE XICARA
- 2. What is the Americans with Disabilities Act? The Americans with Disabilities Act was established in 1990 to protect individuals with disabilities from discrimination. The ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against potential qualified candidates based on a disability or impairment (Americans with Disabilities Act of 1990 (ADA), n.d.). This protection applies during the hiring, firing, promoting, training, compensation, etc., and covers employers with 15 or more employees.
- 3. Disability under the ADA The ADA defines a disability as “a physical or mental impairment that that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment” (Introduction to the ADA, n.d). Qualified candidates or applicants with disabilities are individuals who can perform the job in question with or without reasonable accommodation (Americans with Disabilities Act of 1990 (ADA), n.d.).
- 4. What is Reasonable Accommodation? modified work schedules (i.e and. employee needs to attend dialysis on a daily or weekly basis). making all areas accessible to disabled individuals (i.e. installing ramps and wheelchair lifts). Making all areas accessible to a service animal assisting a disabled individual. providing interpreters, readers, modified equipment and/or training material. (i.e. a sign language interpreter for a person with a hearing and/or speaking impairment.
- 5. Providing Reasonable Accomodation An employer must provide reasonable accommodation unless this would create undue hardship for the employer. Refusing to accommodate an employee because the accommodation requires an expense, such as purchasing special equipment is not allowed under ADA. An employer is not required to make the exact accommodation the employee is requesting. If more than one option is available to accommodate that works, the employer may decide which to provide (Disability Discrimination, n.d.).
- 6. Defining “Undue Hardship” Undue hardship can be anything that poses a significant expense difficulty for the employer when compared to its size and resources. Undue hardship for example can have a negative effect on business, such as putting up bright lights in a relaxing spa (When does a reasonable accommodation create undue hardship? - Nolo.com, n.d.)
- 7. Alternatives when undue hardship exists. An employer must demonstrate that attempts have been made to accommodate in spite of undue hardship. In the example of a spa, it may not be good for business if the lighting of the business changed. However, the employer may consider assigning the employee to administrative duties in the management office if bright lighting is necessary.
- 8. Disability Discrimination Disability discrimination is when a covered employer treats an individual differently because of his/her disability. Disability discrimination also occurs when an employer treats an employee or applicant less favorably than other individuals because of a history of illness or because he/she is perceived to have a physical or mental impairment (Disability Discrimination, n.d.). Disability discrimination also protects individuals based on their relationship with a disabled person (Disability Discrimination, n.d.).
- 9. Examples of Disability Discrimination An applicant is denied a position for employment because of an existing disability. An applicant is given less consideration or denied a position because he/ she is accompanied by a service animal. An employee is denied a promotion because he/she has a history of cancer but is now in remission. A top performing employee is terminated without reason because health benefit costs are too expensive due to a disability. Giving a qualified candidate less consideration for a position because their spouse is disabled and may require care at times.
- 10. Disability Discrimination cont. It is prohibited to discriminate during employment based on disability. This includes hiring, firing, promoting, pay, job assignments, training, providing benefits, etc. The ADA also prohibits anyone from harassing an individual because of a disability. Although the law is not specific to teasing or offensive comments in the workplace, it is considered harassment if the actions are frequent and/or create a hostile work environment. This is applicable to an employee’s supervisor, a coworker, a supervisor from another department, or a company client.
- 11. Disability Prescreening A hiring manager cannot prescreen candidates for disabilities. This includes asking medical questions during the application/interview stage or requesting they take a medical exam prior to extending a job offer. A manager must not ask any questions in order to determine whether a disability exists. An alternative is to ask if the candidate can perform the duties of the position with or without reasonable accommodation. If the company requests candidates take a medical exam post job offer, the medical exam must be justifiable and related to the job in question.
- 12. Enforcement Agencies The Department of Labor is one of the enforcement agencies responsible for enforcing the Americans with Disabilities Act. The other four agencies are: The Equal Employment Opportunity Commission The Department of Transportation Federal Communication Commission Department of Justice These agencies may file suit on an employee or applicant’s behalf if there is evidence of discrimination.
- 13. Cases of ADA Violations A candidate was hired for a position at Kmart and was asked to take a urine drug test as a condition of the offer. The candidate mentioned to the hiring manager that he would not be able to provide a urine sample due to his kidney disease. The candidate requested an alternative such as a blood, hair test or any other test that did not require a urine sample. The company refused this reasonable accommodation request and denied the candidate the job as a result. The EEOC sued under ADA for failure to provide a reasonable accommodation.
- 14. Case Result The EEOC’s lawsuit claimed that the employer violated the ADA by failing to provide the reasonable accommodation the candidate was requesting. The employer could not prove that undue hardship existed by allowing the candidate to take a different test. Kmart was required to pay $102,048 in damages and ordered to revise its drug testing policies. In addition, training was required in the district where the violation occurred, this applied to all managers and HR employees (Kmart Will Pay $102,048 to Settle EEOC Disability Discrimination Lawsuit, n.d.).
- 15. Ensuring compliance In order to provide all candidates with an equal opportunity for employment and advancement in the workplace, our managers must maintain an open communication with Human Resources. Open communication with HR will ensure management has the latest compliance updates and knows how to avoid disability discrimination. Any concern of potential ADA violation must be reported to Human Resources. It is management’s responsibility to take any complaints seriously and provide swift action to investigate such complaints and provide a speedy resolution.
- 16. References Americans with Disabilities Act of 1990 (ADA). (n.d.). Retrieved October 29, 2015, from http://www.shrm.org/legalissues/federalresources/federalstatutesregulationsandguidanc/pages /americanswithdisabilitiesactof1990(ada).aspx Disability Discrimination. (n.d.). Retrieved October 31, 2015, from http://www.eeoc.gov/laws/types/disability.cfm Introduction to the ADA. (n.d.). Retrieved October 29, 2015, from http://www.ada.gov/ada_intro.htm Kmart Will Pay $102,048 to Settle EEOC Disability Discrimination Lawsuit. (n.d.). Retrieved October 31, 2015, from http://www.eeoc.gov/eeoc/newsroom/release/1-27-15b.cfm When does a reasonable accommodation create undue hardship? - Nolo.com. (n.d.). Retrieved October 31, 2015, from http://www.nolo.com/legal-encyclopedia/when-does-reasonable- accommodation-create-undue-hardship.html
Editor's Notes
- There are different types of reasonable accommodation depending on the disability. It is the employer’s responsibility under ADA to ensure disabled employees have equal access to the premises as other employees. Employers must also ensure that the employee can perform the job functions with or without reasonable accommodation.
- Second Bullet: An employer cannot refuse an accommodation request simply because it involves the company having to pay for the accommodation. In addition, the employer should not ask the employee to purchase or pay for the accommodation on their own. Third Bullet: This is not considered refusing an accommodation request because the employer is still accommodating. This means that the employer can perform research for more cost effective options. For example, if a Teletypewriter is required there are various options available. Although the employee may prefer a specific brand or model, the employer can choose a different teletypewriter which is less costly yet still allows the employee to perform the functions of the job.
- First bullet: If the company is a small family owned business with very limited funds, it would be an undue hardship for the business to provide an accommodation which it cannot pay for. Second bullet: A spa usually requires serene dim lighting as a part of the ambience provided to customers. If an employee has a disability requiring brighter lights, this negatively affects the business as a whole. We will now explore alternatives to undue hardship.
- The employer cannot simply fire an individual because it cannot afford to purchase a certain equipment or the accommodation is bad for the business. The company must still try to provide alternatives when the first accommodation is not an option. In the second bullet, we see the example indicates the employee can be reassigned to a different role. This is allowed under ADA, however it should be the last option to accommodate, not the first.
- Any preference of one applicant over another because of a disability is not allowed. Managers must be careful not to make comments which may be perceived as discriminatory. For example, if after an interview I am asked how it went by another manager, it may be perceived as discrimination if I reply that it went well other than the candidate having a disability. A disability existing or not, should not be a determining factor in any employment related decision made by management.
- In the third bullet, we see that an individual is covered even though the disability is no longer present. This is to ensure that the employer does not discriminate because of a concern that the disability or impairment will occur again in the future. Terminating an employee because of healthcare costs can be an ADA violation. For example, if the employee is dependent on the employer provided health insurance plan to care for a disability, that person cannot be terminated simply because the employer wants to save money and not pay for the increased health expenses. A spouse is also covered under ADA if their partner has a disability. We cannot refuse employment, terminate, refuse promotion of a qualified person because their spouse is disabled and may require medical care.
- Let’s review the third bullet. Although the law is not specific as to what is harassment and what is not, it must be standard practice to not condone any teasing or offensive remarks about a person’s disability. This is not just to comply with ADA, it is also to show compassion and understanding for our employees and their wellbeing. In regards to the last bullet, please take note that clients and customers are covered. It is the duty of management to protect our employees from any offensive comments or behavior from fellow employees and the customers with whom they interact.
- Management must not try and ask questions to find out if any disability exists during any interaction with a candidate. It is not required for candidates to disclose their health condition, only whether or not they can perform the essential duties of the job with our without accommodation. Requesting medical exams after a job offer should be related to the job. For example, it can be justified to request that a valet attendant or anyone else who drives as part of the job to take an exam for safety purposes. It may not be as justifiable if we request that an administrative assistant or office manager undergo the same exam.
- All it takes is one complaint to any of these agencies to spark an investigation. If evidence that an ADA violation occurred, these agencies may file lawsuits on behalf of the employee and request punitive damages. We will now look at one case in which an employer violated ADA.
- Although the standard practice for the company may have been a urine test, there were other options to provide the employer with the same result they were looking for.
- This case is just one of many, if an employer has a history of discriminatory behavior, the punitive damages increase. The end result was a large fine, and company time spent on retraining all management and HR within this district to avoid a similar situation in the future. This is time the company could have devoted to running the business. It is important that management understands the role they play in recognizing and preventing this behavior.
- Any concerns or complaints must be reported immediately to HR. All employees have the right to receive a speedy resolution and update to their complaint. Any violations will result in disciplinary action which may include termination of employment.