Climbing the Disability Mountain

There are times in life when you gotta crawl

Lose your grip, trip and fall

When you can't lean on no-one else

That's when you find yourself

I've been around and I've noticed that

Walking's easy when the road is flat

Them danged ole hiils'll get you every time

Yeah, the good Lord gave us mountains

So we could learn how to climb

~Mountains
Lonestar

I have to admit that I would not have known that Sunday, July 26, 2015, was the anniversary of an important piece of legislation if I had not quickly glanced at headlines last week. Twenty-five years ago, when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, I probably did not think much about it even though I was in law school at the time. Even now, we may not notice it, but the ADA is all around us.

Twenty-five years ago, if you asked me about the ADA, I would have said that it had to do with putting in wheelchair ramps and elevators, and making sure that there are enough handicapped parking spaces. That's just the tip of the iceberg.

According to the website ADA.gov, the ADA "prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services."

Introduction to the ADA

A disability is "a physical or mental impairment that substantially limits one or more major life activities.”

The ADA has five sections, or "Titles." Today, we look at Title 1.

Title 1--Employment.  In basic terms, the ADA says that an employer cannot use a disability as a reason:

• not to interview or hire a disabled person;
• not to promote a disabled person;
• to pay a disabled person less than a nondisabled person in a similar position with similar experience; 
• to fire a disabled person; or
• to treat a disabled person different from other employees in a similar position, except for providing "reasonable accommodations" for the disability.

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

"Reasonable accommodations" are adjustments or modifications an employer makes so people with disabilities can do their jobs. 

In the workplace, an employer must make a reasonable accommodation for a qualified applicant or employee if it would not create an “undue hardship” on the employer’s business. Generally, the person with the disability must ask for the accommodations. The accommodations needed depend on what will help the individual do his or her job.

Common types of reasonable accommodations:

• make existing facilities accessible;
•  job restructuring;
• part-time or modified work schedules;
• acquire or modify equipment;
• change tests, training materials, or policies;
• provide qualified readers or interpreters; or
• reassignment to a vacant position.

Examples of reasonable accommodations:

•  A deaf applicant may need a sign language interpreter during a job interview.
•  An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
•  A blind employee may need someone to read information posted on a bulletin board.
•  An employee with cancer may need leave to have radiation or chemotherapy treatments.
•  An employee with lupus might need to sit on a stool, rather than stand, to reduce fatigue.

As usual, the devil is in the details:

• An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is something that is too difficult or too expensive for that particular employer.
•  An employer does not have to eliminate an essential function that is a fundamental duty of the position. A person with a disability who is unable to perform the essential functions, with or without reasonable accommodation, is not a "qualified" individual with a disability within the meaning of the ADA.
•  An employer is not required to lower quality or production standards to make an accommodation. However, an employer may have to provide reasonable accommodation to enable an employee with a disability to meet the production standard. 
•  An employer is not obligated to find a position for an applicant who is not qualified for the applied-for position.
•  An employer is not obligated to provide personal use items such as prosthetic limb, a wheelchair, glasses or hearing aids.
•  An employer is not required to provide personal use amenities, such as a hot pot or refrigerator, if those items are not provided to employees without disabilities. However, items that might otherwise be considered personal may be required as reasonable accommodations where they are specifically designed or required to meet job-related rather than personal needs.

While the ADA has had a tremendous effect, advocates for the disabled point out that it cannot change everything. We cannot know what an employer is truly thinking, and it is hard to prove that an employer chose not to hire someone based on his or her disability. A recent Newsday article (Disabilities act has changed lives of millions 25 years after passage) stated:

A quarter-century after ADA's passage, joblessness among disabled Americans remains far higher than for other adults. Just 17.1 percent of people with a disability were employed in 2014, compared to 64.6 percent of those without a disability, according to the latest federal figures. 

Work is just part of a person's life. The ADA also provided rules for state and local government activities, public transportation, public accommodations and telecommunications relay services. I'll discuss those topics in the future.