last update 11-15-02

ADA -- Americans with Disabilities Act

The Americans with Disabilities Act (ADA) was passed by Congress in 1990 to provide disabled employees a right to employment under certain conditions. The law is set out at 42 USC 12101. Claims can be made under both Federal and State statutes.

Coverage Under the ADA

Initially, you must look to the size of the employer to see if he will fall within the scope of the law. Only employers who had at least 15 employees working for at least 20 weeks in the current or preceding calendar year are covered by the ADA.

Provisions of the ADA

The ADA prohibits discrimination against a qualified individual with a disability because of the disability relating to a job application, the hiring, advancement, or discharge of an employee, his compensation, job training and any other terms, conditions and privileges of employment.

To be a qualified individual, the employee must be able to perform the essential functions of the position either unaided or with reasonable accommodation.

The term "disability" means a (A) physical or mental impariment that substantially limits one or more of the major life activities of such individuals, (B) a record of such an impairment, or (C) being regarded as having such an impairment. Thus, if the person is not disabled, merely being perceived as having a disability may allow coverage under the ADA.

The courts have determined that AIDs and HIV infections qualify under the ADA because they both impact the major life activity of having children. However, a recent Fifth US Circuit Court has held that if the parties have decided not to have children and/or have had surgical procedures to prevent having children, they may not be covered by the ADA.

Prior to an employer terminating an employee with HIV-Aids, the courts have held that an "individualized inquiry" must be made of the person and the job position to make a determination of whether reasonable accommodations can be made or not.

Defenses to an ADA Claim

An employer can claim some defenses to an ADA claim. First, it may be a defense to a charge that an alleged person of qualified standards, tests, or selection criteria that screen out or tend to screen out a job to an individual with a disability has been shown to be job-related and consistent with business necessity, and as such, performance cannot be accomplished by "reasonable accommodation". The qualified standard can also include the requirement that the person not provide a "direct threat" to the health or safety of other individuals in the workplace. There can also be a defense of "undue hardship."

REASONABLE ACCOMMODATIONS may include (A) making existing facilities unsed by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devises, appropriate adjustment of examinations, training materials or policies.

DIRECT THREAT means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

UNDUE HARDSHIP means an action requiring significant difficulty or expense, when considered in light of the factors set forth below. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include (A) the nature and cost of the accommodation needed, (B) the overall financial resources of the faciltiy including the overall financial impact upon the operations of the facility, (C) the overall financial resources of the covered entity including the overall size of the business, number of employees and location of the facility, (D) the type of operation of the covered entity, including the composition, structure and functions of the workplace.

Interview Questions

During the interview, the employer cannot ask any questions about an alleged disability. An employer cannot ask if an applicant has HIV-Aids. Questions can be directed to whether a reasonable accommodation will be required for the applicant. A medical exam cannot be required prior to the offer of a job.

Filing Requirments

Before suit can be brought in Federal Court, the employee must first file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discrimination. The EEOC will investigate the charge and request a response from the employer. Thereafter, the EEOC may proceed with the case or may turn it back to the employee--whether it has determined there was a discrimination or not.

When the EEOC turns the case back to the employee, it will issue a letter telling the employee that he has 90 days from the date of the letter to file his suit. If suit is not filed within that time period, the matter is considered abandoned and suit cannot be brought later.

Damages

If the employee is successful in his suit, there are several types of damages that can be awarded, including:

--Compensatory damages for humiliation, embarrassment, etc.
--Punitive damages depending on the size of the employer
---------$ 50,000 for 15-100 employees
---------$100,000 for 101-200 employees
---------$200,000 for 201-500 employees
---------$300,000 for 501 or more employees
--Possible reinstatement to the job
--Back pay or pay lost since termination
--Front pay or pay into the future
--Reasonable Attorney's fees
--Interest on any monetary recovery from the date of the discrimination


========================  WARNING  =======================
                      AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed.  Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a 
attorney to discuss the specific facts of your case
and the law of your state.
==========================================================

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last update 11-15-02

ADA -- Americans with Disabilities Act

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