For many employers, the bottom line is their most important consideration, and they would not hesitate to fire, or refuse to hire, an individual with a disability that they assume will pose a minor inconvenience or added expense. Without adequate legal protections, many American citizens would find it exceedingly difficult to secure employment in an often cut throat professional environment.
Fortunately, we live in a nation of laws, and one in particular–the Americans with Disabilities Act, or the ADA for short–offers a wide range of protections to those with disabilities to ensure that they are treated fairly and well-accommodated in all areas of public life.
In this guide, we’ll focus on the portion of the ADA that covers employment discrimination and explain who is protected, what types of employers are covered under the act, as well as answering a number of frequently asked questions many have about the law. You’ll also find important resources regarding disability and the workplace.
What is the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act of 1990 (ADA) is a landmark civil rights law affording a wide range of anti-discrimination protections to disabled persons in all areas of life. Often compared to the Civil Rights Act of 1964 which illegalized discrimination on the basis of race, sex, religion, and national origin, the ADA was principally authored by Iowa Senator Tom Harkin and signed into law in July 1990 by President George H.W. Bush.
The ADA expanded upon the Rehabilitation Act of 1973, which made discrimination on the basis of disability illegal in all federal agencies, programs receiving federal financial aid, and by federal contractors. Using similar wording and definitions as the prior statute, the ADA extended anti-discrimination protections to state agencies, as well as the private sector.
The ADA comprises five titles covering many provisions:
- Title I – Employment
- Title II – Public Entities
- Title III – Public Accommodations
- Title IV – Telecommunications
- Title V – Miscellaneous Provisions
For the purposes of this article, our focus will be on Title I, which bars employers from discriminating against “a qualified individual with a disability”, a definition that includes both employees and job applicants.
All “covered entities” (employers required to follow the law) are prohibited from discriminating in the following practices:
- hiring and firing
- pay and benefits
- leave and sick days
- job assignments
- other assorted employment-related situations and activities
The ADA also states that employers may not ask job applicants if they have a disability or inquire about the severity of a job applicant’s disability. Furthermore, employers must provide reasonable accommodation to applicants and employees with a disability in order to allow them to perform their job tasks effectively, although employers may appeal if they can prove that accommodation would involve “undue hardship”, i.e, significant difficulty or expense.
In addition to protecting disabled persons, ADA Title I also prohibits employers from discriminating against abled persons due to a relationship they may have with a disabled person. For example, if a family member suffers from a disability that requires an employee or job applicant’s time and attention, necessitating that they take time off of work to care for that family member, employers may not fire them, or remove them from consideration for a position.
Though the ADA protects individuals with disabilities from discrimination, it does not state that employers should favor disabled candidates, and they are entitled to choose the person best suited to the job.
Finally, the ADA allows those unlawfully discriminated against to take appropriate legal action against employers, initially through filing a complaint with the United States Department of Justice or EEOC, followed by a lawsuit, if necessary.
Which types of employers are covered under the ADA?
The “covered entities” prohibited from discriminating against those with disabilities include:
- state and local governments
- federal government agencies
- private employers
- employment agencies
- labor organizations and labor-management committees
Under the law, it is illegal for any employer with 15 or more employees to discriminate against disabled people. However, many states have stricter laws that bar employers with fewer than 15 employers from discriminating against disabled individuals.
For more information on individual state laws regarding employee discrimination, check out this page put together by Workplace Fairness.
What about foreign businesses operating in American territory?
Spector v. Norwegian Cruise Line Ltd. was an interesting case filed on the behalf of Douglas Spector, a disabled man, and four other disabled plaintiffs arguing that the Norwegian Cruise Line was in violation of the ADA since the cruise ship they had purchased tickets for had many facilities, including the restaurants, swimming pools, and restrooms, which were not accessible to disabled persons. Additionally, the cruise line did not allow the plaintiffs to participate in emergency drills, and the company lacked an emergency evacuation plan for individuals with disabilities.
In defense, Norwegian Cruise Line argued that since they flew a foreign flag on their ships, they were exempt from following the guidelines of the ADA. Initially, a federal court in Florida, as well as the Fifth Circuit Court of Appeals, ruled in the cruise line’s favor. However, the Supreme Court eventually overturned the ruling on the basis that the cruise line operated in U.S. waters and through U.S. port facilities, and was headquartered in the United States.
The case set a precedent that cruise lines operating in the United States must follow ADA regulations for both employees and passengers, regardless of what country’s flag it flies in its vessels (source).
Check out our guide to the LGBTQ Rights in the U.S. Workplace
What disabilities are included under the ADA?
When it was first signed into law, the ADA defined a “covered” disability as:
- a significant physical or mental impairment that limits one or more major life activities
- having a history of such impairment
- being regarded by others to have such an impairment.
The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with interpreting the law in its original form, and that interpretation has evolved over the years, particularly with the passing of the most important federal legislation covering disability since the original ADA.
Signed into law by President George W. Bush, the ADA Amendments Act of 2008 (ADAAA), expanded on the original definition of disability, pushing for a broader interpretation of the term in order to extend the ADA’s protections to a wider range of people. The updated definition adds in additional activities that qualify as “major life activities” such as bending and reading, as well as “major bodily functions” like digestive, respiratory, circulatory, immune system, and endocrine functions.
As the law’s definition of disability is purposely left vague so as not to accidentally exclude anyone that should be covered, there’s no simple way of listing every medical condition that may qualify. The general rule of thumb is that if one is afflicted with a condition or impairment that makes any aspect of life difficult, or has in the past, for example, a cancer patient now in remission, then such a person can be understood to have a disability.
What is “reasonable accommodation”?
The ADA requires employers to provide “reasonable accommodation” to individuals with disabilities, which can be defined as an adjustment to the work environment allowing disabled employees to perform the essential functions of the job at a level on par with employees without disabilities.
Necessary accommodations vary according to the needs of each disabled employee and applicant. Upon being hired, or being considered for a position, the employee or candidate should begin the process of requesting reasonable accommodation by disclosing their disability, specifically state which tasks or difficulties they face in the current arrangement, and request the changes they wish to be made.
Without specifically requesting changes, an employer is not required to implement them, so it’s important to be clear about your needs and provide them in writing, if necessary.
The following are common examples of reasonable accommodation:
- Altering existing equipment or acquiring special equipment or software that is necessary for employees to do their jobs.
- Making facilities such as restrooms accessible to those with disabilities.
- Job restructurings, such as adjusting job tasks or work schedules
- Reassigning a disabled employee to a vacant position.
- Providing specially designed training materials and exams.
- Providing accessible parking.
It’s important to note that employers can not take money out of a disabled person’s pay, or pay them a lower salary to cover the costs of reasonable accommodation. Any attempt to do so is a violation of the ADA and should be met with the filing of an official complaint.
Employers may deny providing your desired accommodation if it presents an “undue hardship”, which typically means an expense that the employer can not reasonably meet. However, it is rather difficult for employers to prove undue hardship, so be firm in your needs and file a complaint if you feel you have been unfairly denied.
Bates v. UPS
Occasionally, courts rule that an employer has failed to accommodate not just one, but an entire category of disabled employees. One such situation was the 1999 case of Bates v. UPS, the first equal opportunity class action brought forth on the behalf of Deaf and Hard of Hearing workers regarding workplace discrimination.
The court found that UPS failed to accommodate deaf employees on a number of levels, including a failure to address communication barriers between deaf and non-deaf employees, as well as neglecting to implement a system of alerting deaf employees in the case of emergencies. The court also found that deaf employees were often passed over for promotions, excluded from important workplace information, and exposed to dangerous conditions and situations.
In the end, UPS awarded $5.8 million, collectively, to its deaf employees, and initiated an extensive accommodations program that was put in place in their facilities around the country (source).
When can an employer deny a person with a disability a certain job?
According to the ADA, if an employer legitimately determines that an individual with a disability represents a “direct threat” to the health and safety of the individual, or other employees, even after reasonable accommodations are made, the employer may deny that individual a particular position.
The safety of everyone in the workplace environment is an employer’s top priority, and certain disabilities pose an unacceptable risk, particularly for jobs requiring the use of heavy machinery, or when an individual is tasked with the care of other people.
In making such a decision, an employer should present sufficient evidence that an unacceptable risk is present, and making assumptions based on incomplete evidence may constitute a violation of the ADA.
Are alcoholism and substance abuse covered as disabilities under the ADA?
The short answer is no, alcohol and drug addiction are not considered protected disabilities under the ADA, and drug testing is not considered a “medical examination” as far as the law is concerned.
However, one case in which an alcoholic or recovering drug addict is protected by the ADA is if they need to make a personal phone call to a loved one or Alcoholics Anonymous sponsor during work hours in order to deal with a craving to use drugs or alcohol. An employer should accommodate an employee with this need by making a special exception to a rule stating that employees should not make personal calls during work hours.
Am I required to disclose my disability to employers?
An employee or job applicant is not required to disclose any information to an employer about disability unless they are requesting reasonable accommodation. If reasonable accommodation is deemed necessary, a medical examination documenting the basis of disability may be needed in order for the employer to follow through with the request.
One exception where an employee is obligated to disclose information about a disability is if the person will need special assistance in the event of an emergency evacuation. Employers are allowed to periodically survey their employees about whether they require assistance in such an occasion if the employer is clear about why they are asking. They should ask all employees, regardless of whether or not a disability is apparent, and should not make assumptions about disabled persons requiring special assistance.
Is an employer permitted to withhold medical insurance coverage to an employee with a disability?
No, employers are legally required to provide all employees with equal access to the medical insurance offered by the firm. The ADA states that an employer may not make exceptions regarding medical insurance for an employee with a disability, and doing so constitutes a violation of the law.
However, if the medical insurance offered by the employer to all employees does not cover the medical needs posed by an individual’s disability, they are not required by law to provide special coverage that does cover these needs.
How can I file a complaint about unlawful disability discrimination?
If you are the victim of discrimination, you can file a complaint with the US Department of Justice through the mail, on the phone, fax, or e-mail. Be sure to include:
- detailed personal information: name, address, telephone number
- the name and address of the offending business or organization
- a description of the discriminatory act, the people involved, and the date(s) the act(s) occurred
- All other additional material or information that will help to support your complaint
Send your complaint to the U.S. Department of Justice at:
US Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section – 1425 NYA
Washington, D.C. 20530
Fax: (202) 307-1197
Email: [email protected].
For those with questions about the filing process, you can call the ADA Information line at:
- 800-514-0301 (voice)
- 800-514-0383 (TTY mode)
What happens if an employer is found guilty of disability discrimination?
If an employer or organization is found guilty of discrimination, an employee may be entitled to remedies including, but not limited to: front pay, back pay, automatic hiring, reinstatement, legal fee remuneration, compensatory damages, punitive damages or promotion. The remedies awarded to the complainant will vary depending on which state they live in.
Furthermore, by filing a successful complaint against an employer for discrimination, an individual is helping to ensure that such violations are less likely to occur in the future, since the offending party may be legally required to take corrective actions to bar discriminatory practices.
What happens if an on the job injury leaves me disabled?
If you get injured or acquire an illness at work and require medical attention, workers’ compensation, a type of employer-paid accident insurance, will pay your medical bills without any payroll deductions. For those that miss work due to work-related injury or illness, workers’ compensation will cover wage-loss compensation for the period of absence. Workers’ compensation benefits are usually paid through a state-run workers’ compensation fund or a private insurance company.
Whether or not your on the job injury or illness qualifies you for anti-discrimination protection under the ADA depends on the severity of the illness or injury. A majority of the time, employees recover from workplace injuries and illnesses without any lasting disability. Therefore, those who receive workers’ comp benefits for a period do not necessarily receive protection under the ADA.
The same definition of disability for all other cases applies to potential on-the-job-related disabilities, so they should be evaluated on a case-by-case basis to see if they qualify for ADA protection.
What if my disability requires me to take medical leave?
Individuals with disabilities are typically expected to follow the employer’s leave policy applying to all employees. Therefore, employers can not refuse leave to individuals with a disability if all other employees are eligible for the same leave. Essentially, all employees follow the same rules regarding leave, whether they have a disability or not.
However, an individual with a disability that requires medical leave may negotiate a special leave and consider it a “reasonable accommodation” as long as it does not pose an “undue hardship” to the employer. Whether or not the leave is an “undue hardship” is evaluated on a case-by-case basis, yet a long-term, open-ended period of leave is almost always considered to be so.
What if I am too disabled to work?
For individuals suffering from a disability that makes regular employment a difficult or impossible proposition, applying for disability benefits through the Social Security Administration may be important for receiving funds necessary to live a decent life.
Visit the Social Security Administration’s page on disability benefits for a step-by-step guide on how to apply, what materials you will need to send, and information on how long one should expect to wait after filing a claim before receiving benefits.
Disability in the Workplace Resources
- The Americans With Disabilities Act of 1990, As Amended – This is the full text of all five titles of the amended ADA if you have the time and patience. Since it’s the actual law, it serves as the definite document of reference for questions about disability in the workplace, with the exception of specific state laws.
- State Laws on Disability Discrimination – Put together by Workplace Fairness, this is the best resource on individual state laws regarding disability in the workplace. As such laws vary considerably from state to state, this is an important resource.
- EEOC Home Page – The official page of the Equal Employment Opportunity Commission. Here you’ll find the latest news on discrimination cases, information on employer’s and employee’s rights, training program postings, and other useful resources. You can also file a discrimination complaint or make an appeal through the site.
- Social Security Benefits Planner: Disability – All you need to know about filing for disability benefits, as well as the spot where you can fill out and send your application.
- The American Association of People with Disabilities – The official site of the AAPD, which advocates for individuals with disabilities in all areas of life, not just employment-related issues.
- What you can do?: The Campaign for Disability Employment – A wonderful page dedicated to helping individuals with disabilities secure employment. You’ll find tips on writing a resume, preparing for interviews, links to job training programs, online job search tools, and much more.
Succeeding in the workforce is tough, and the added difficulty of coping with a disability makes it even more trying. The statistics are telling: just 20% of the disabled population in the United States is a part of the workforce. While many disabled individuals are simply unable to work, others are likely intimidated by the possibility of rejection by employers, or of requesting the accommodations necessary for them to thrive in the workplace.
However, federal laws are on your side: the Americans with Disabilities Act is thorough and extensive in its provisions protecting the rights of disabled individuals. Being informed of your rights will prepare you for any challenges a job search or employers throw your way. It’s your right to work without unlawful discrimination, and education is the first step to personal empowerment and a higher quality of life, no matter what disability you may have.