Americans with Disabilities Act

The Americans with Disabilities Act protects people with disabilities against discrimination due to disability, both in hiring and in employment. The ADA applies to all employers with 15 or more employees during a twenty-week period.

In Pennsylvania, the Pennsylvania Human Relations Act also prohibits discrimination against disabled persons. It is interpreted and applied similarly to the ADA, but covers employers with as few as 4 employees.

The remedies for violation of the ADA include various types of damages including back pay, front pay (with offsets for wages earned) and “liquidated” damages (similar to punitive damages) and attorney’s fees.

Disability Defined

The ADA defines a disability as "a physical or mental impairment that substantially limits one or more major life activities of an individual."

What are the things that constitute major life activities?

Generally, major life activities are “simple” things that the average person does with little or no difficulty, such as caring for oneself, walking, seeing, hearing, speaking, breathing, learning, sitting, standing, lifting, reaching, reading, etc. To be considered a disability under the ADA, the disabling condition must be permanent or long-term. So even if a temporary condition, such as a broken bone, the flu, or pneumonia, limits a person's activities as described, it is not considered a disability under the ADA. In addition, if the condition can be eliminated or controlled by medication or by a device, such as eyeglasses, the condition will probably not be considered a disability.

Reasonable Accommodation

Under the terms of the ADA, an employer must make what is called a "reasonable accommodation" for an employee or potential employee with a disability. If an employee can perform the essential functions or primary duties of a job, with a reasonable accommodation, then the employer cannot fire or refuse to hire the employee because of the disability. If an employer refuses to hire a person or fires a current employee solely because of a disability or to avoid having to accommodate that disability, then the employer has engaged in unlawful discrimination against that person under the ADA in most instances.

However, if an individual cannot perform the essential functions of a job due to his or her disability, either with or without accommodation, the employer is not required to retain the employee. And, if an employee claims that he or she cannot work at all, in order to claim Social Security Disability benefits, that employee cannot also claim validly that he can perform his job if the employer were to offer a reasonable accommodation of his disability. Such contradictory positions would need to be adequately explained and justified.

As a general rule, an accommodation is any change in the work environment or in the way things are normally done on the job so that a person with a disability can perform the essential functions of the job safely and effectively. This change or accommodation will vary according to the circumstance, i.e., the job in question and the nature of the disability. The accommodations an employer makes can range from adopting more flexible work rules (perhaps allowing more breaks to a person with a chronic bladder problem), to removing a physical barrier (such as installing a ramp so that a person in a wheelchair can get up a flight of steps). The most common forms of accommodation are physical changes to the work area (as with the handicap ramp), part-time or modified work schedules (for example, to accommodate therapy appointments), or modified or special equipment (e.g., an amplifier for a phone or a Braille typewriter).

However, there are limits to an employer's obligation to accommodate a person with a disability. First, no employer is required to lower production standards or to eliminate an essential job function or duty as a reasonable accommodation. While an employer may be obligated to make accommodations so that an employee can meet production standards, or perform the duties of the job, the production standards and job duties themselves do not have to be changed as part of that accommodation. Also, an employer will not be obligated to make an accommodation that causes an "undue hardship" to the business, i.e., an accommodation that would cause significant difficulty or expense to an employer, or would be so disruptive as to seriously affect the ability of the business to maintain operations. Whether an accommodation truly causes an “undue hardship” to a business varies with the size and nature of the business; something that is a minimal imposition on a large company may present an undue hardship to a very small organization. The nature of the business and the effect of the accommodation on normal operations are also considered. Finally, if the very nature of the job makes an accommodation impossible or impracticable, an employer will be relieved of the obligation.

An employer must be made aware of the need to provide accommodation for a disabled employee. The employer is then obligated to actively engage in the process of determining what type of accommodation is necessary for the employee. In other words, the employer cannot simply reject an employee's request out of hand, without trying to find a workable solution.

Reassignment

In order to qualify for protection under the ADA, an employee should be able to perform the essential functions of the job, with or without reasonable accommodation. However, if a person is unable to perform the essential job functions of his current position, despite reasonable accommodations, but can be reassigned to an alternate, vacant position that the employee can perform and for which the employee is qualified, the employer may be obligated to make such a reassignment. The reassignment can be to a lower paying position, or outside the geographical area, in which case the employee pays the moving expenses. If the employee refuses the offer of an alternative position, he or she will be precluded from making an ADA claim since the employer satisfied its statutory obligation.

Protection from Discrimination Against Caregivers

The ADA and the PHRA protect individuals with disabilities from employment discrimination. In addition, these laws extend protection against discriminatory actions taken against employees who are related to and/or provide care for persons suffering from a disability. For example, if an employer learns an employee is caring for a disabled family member or friend and, based on that knowledge, limits or terminates the employee's job opportunities due to concern about availability, such action would give rise to an ADA and/or PHRA claim for disability discrimination. Likewise, if an employer withdraws a job offer after discovering that the prospective employee is a caregiver to a chronically ill or disabled person, or a person suffering from an age-related condition (e.g., dementia), the prospective employee is likely to have claims for disability and/or age discrimination under the ADA, the Age Discrimination in Employment Act (“ADEA” discussed below) and/or the PHRA.