BASED ON DISABILITY
Section 201 of the Congressional Accountability
Act (CAA) applies certain rights and protections of the Rehabilitation
Act of 1973 and of the Americans with Disabilities Act of 1990
(ADA) to covered employees. Under this section, all personnel actions
-- e.g., hiring, discharge, promotion, pay, benefits -- must be
free from discrimination based on disability.
The ADA and Rehabilitation Act establish the
basic terms of what is prohibited employment discrimination on the
basis of disability. The Board has not adopted regulations on employment
discrimination on the basis of disability. However, employing offices
and covered employees may find it helpful to refer to court decisions
interpreting the ADA and Title VII, as well as the interpretations,
opinions, and other materials issued by the Equal Employment Opportunity
Commission (EEOC), which is responsible for implementing the applicable
sections of the Rehabilitation Act and the ADA.
This summary describes the rights and protections
applied by the CAA regarding employment discrimination on the basis
of disability, followed by "questions and answers."
The CAA provides that all personnel actions
affecting covered employees shall be free from discrimination on
the basis of disability. This includes hiring, discharge, promotion,
pay, benefits, reassignment, and other personnel actions affecting
the terms, conditions, and privileges of employment.
The covered employees and employing offices subject generally to
the CAA are described in the Introductory section.
2. Employment Discrimination
Based on Disability Prohibited
individuals with disabilities
The law prohibits employment discrimination against "qualified individuals
A qualified individual with a disability is an individual
with a "disability" who satisfies skill, experience, education,
and other job-related requirements of the position held or desired,
and who, with or without "reasonable accommodation," can perform
the essential functions of that position. If an employing office
has prepared a written description before advertising or interviewing
job applicants, this description will be considered evidence of
the essential functions of the job.
A disability is a physical or mental
impairment that substantially limits one or more major life activities;
or a record of such an impairment; or being regarded as having such
accommodation An employing office is
required to make a "reasonable accommodation" to the known physical
or mental limitations of an otherwise qualified individual with
a disability who is an applicant or covered employee, unless the
employing office can demonstrate that the accommodation would impose
an "undue hardship" on the operation of the business of the employing
accommodation may include, but is not limited to:
as defined in the ADA, is an action requiring significant difficulty
or expense, when considered in light of factors such as --
- making existing facilities used by covered
employees readily accessible to and usable by persons with disabilities;
- job restructuring, modification of work
schedules, reassignment to a vacant position;
- acquiring or modifying equipment or
- adjusting or modifying examinations,
training materials, or policies; and
- providing qualified readers or interpreters.
office is only required to accommodate a "known" physical or mental
limitation of an otherwise qualified applicant or employee. The requirement
generally will be triggered by a request from an individual with a
disability, who frequently will be able to suggest an appropriate
accommodation. However, if a person with a disability requests, but
cannot suggest, an appropriate accommodation, the employing office
and the individual should work together to identify one. If a particular
accommodation would be an undue hardship, the employing office must
try to identify another accommodation that will not pose such a hardship.
If an employing office suggests a reasonable accommodation that is
different than the one that the employee suggests, it is sufficient
if it is an effective accommodation, even if it differs from the one
that the employee has requested.
- the nature and cost of the accommodation;
- the overall financial resources of the
facility providing the accommodation, the number of employees
there, and the impact of the accommodation upon the facility's
- the employer's overall financial resources,
the overall size of the employer's business, and the nature and
structure of the employer's operation.
Inquiries and Medical Examinations
Before a job offer is made, employing offices may not ask job applicants
about the existence, nature, or severity of a disability. Nor may
they ask whether the applicant has suffered an on-the-job injury
or filed for worker's compensation. Applicants may be asked about
their ability to perform job-related functions.
A job offer may be conditioned
on the results of a medical examination conducted after the job
offer is made, but only if the examination is required for all entering
employees regardless of disability. In addition, all information
obtained must be maintained separately as confidential medical records,
with only limited job-related access allowed.
Medical examinations of current employees, or
inquiries about the existence, nature, or severity of a disability,
must be job-related and consistent with business necessity.
Kinds of Prohibited Discrimination
The ADA, as applied by the CAA, also prohibits:
- using standards or criteria that have
the effect of discrimination on the basis of disability;
- using qualification standards, employment
tests, or other selection criteria that tend to screen out an
individual (or class of individuals) with a disability unless
shown to be job-related for the position and consistent with business
- denying equal jobs or benefits to a qualified
individual because the individual is known to have a relationship
or association with an individual with a known disability.
Use of Drugs and Use of Alcohol
Covered employees and applicants currently engaging
in the illegal use of drugs are not
protected by the law when an employing office acts on the basis
of such use. The "illegal use of drugs" includes both the use of
illegal drugs and the illegal use of prescription drugs. The employing
office may prohibit the illegal use of drugs, and tests for illegal
use of drugs are not subject to the ADA's restrictions on medical
Unlike one who illegally uses drugs, an alcoholic
may be considered an individual with a disability, who is protected
by the law. However, employing offices may hold individuals who
are alcoholics to the same performance standards as other employees.
Furthermore, an employing office may prohibit the use of alcohol
at the workplace by all employees, and may require that employees
shall not be under the influence of alcohol at the workplace.
6. Intimidation or Reprisal
Intimidation, reprisal, or discrimination against
a covered employee for opposing practices or for initiating or participating
in a proceeding is prohibited, as described in the Introductory
In case of a violation of the provisions of
the CAA prohibiting discrimination on the basis of disability, several
kinds of remedies may be available:
A description of the generally applicable
remedies (attorneys fees, interest) and limitations (no civil penalties
or punitive damages) is found in the Introductory section.
- The remedy may be: enjoining unlawful
employment practices; ordering that such affirmative steps be
taken as may be appropriate, including reinstatement or hiring,
with or without back pay; or any other equitable relief as may
be deemed appropriate.
- Compensatory damages may be available for
(1) intentional discrimination on the basis of disability, or
(2) failure to make good faith efforts to make reasonable accommodation.
In such a case, compensatory damages for future pecuniary losses,
emotional pain and suffering, and other nonpecuniary losses are
capped at no more than $300,000.
BASED ON DISABILITY
Questions and Answers
1. Q. Who is protected from employment
discrimination by an employing office based on disability?
A. Employment discrimination is prohibited against "qualified
individuals with disabilities." An individual is considered to have
a "disability" if she or he has a physical or mental impairment that
substantially limits one or more major life activities, has a record
of such an impairment, or is regarded as having such an impairment.
Major life activities include seeing,
hearing, speaking, walking, breathing, performing manual tasks,
learning, caring for oneself, and working. An individual with epilepsy,
paralysis, HIV infection, AIDS, a substantial hearing or visual
impairment, mental retardation, or a specific learning disability
is covered, but an individual with a minor, or a nonchronic condition
of short duration, such as a sprain, broken limb, or the flu, generally
would not be covered.
An individual might have a "record" of a disability
if, for example, the person has recovered from cancer or mental
An individual might be "regarded as having"
a disability if an employing office believes an employee has a disability
even though she or he does not. For example, the law would protect
a qualified individual with a severe facial disfigurement from being
denied employment because the employing office feared the "negative
reactions" of customers or co-workers.
2. Q. Who is a "qualified individual
with a disability"?
A. A qualified individual with a disability is a person who
meets legitimate skill, experience, education, or other requirements
of an employment position that s/he holds or seeks, and who can
perform the "essential functions" of the position with or without
reasonable accommodation. Requiring the ability to perform "essential"
functions assures that an individual with a disability will not
be considered unqualified simply because of inability to perform
marginal or incidental job functions.
3. Q. What are essential job functions?
A. The essential functions of a job are the fundamental job
duties that an employee must be able to perform on his or her own
or with the help of reasonable accommodation. Essential functions
do not include marginal functions of the position. Marginal functions
are those that are merely incidental to the performance of the fundamental
job duties of an employment position. An employing office cannot
refuse to hire an individual because the individual's disability
prevents the individual from performing duties that are not essential
to the job.
For example, a proofreader must be able to proofread
documents; thus, the ability to proofread would be an essential
job function. Typing ability, although perhaps desired for a proofreader
position, would probably be considered a marginal function in this
A written job description or advertisement prepared
before the employment decision at issue would be some evidence of
the essential functions of the job.
4. Q. Does an employing
office have to give preference to a qualified applicant with a disability
over other applicants?
A. No. An employing office is free
to select the most qualified applicant available and to make decisions
based on reasons unrelated to a disability. For example, suppose
two persons apply for a job as a typist and an essential function
of the job is to type 75 word per minute accurately. One applicant,
an individual with a disability, who is provided with a reasonable
accommodation for a typing test, types 50 words per minute; the
other applicant who has no disability accurately types 75 words
per minute. The employing office may hire the applicant with the
higher typing speed, if typing speed is needed for successful performance
of the job.
5. Q. What is "reasonable accommodation"?
accommodation is any modification or adjustment to a job or the
work environment that will enable a qualified applicant or employee
with a disability to participate in the application process or to
perform essential job functions. Reasonable accommodation also includes
adjustments to assure that a qualified individual with a disability
has rights and privileges in employment equal to those of employees
Examples of reasonable accommodation may include
making existing facilities used by employees readily accessible
to and usable by an individual with a disability; restructuring
a job; modifying work schedules; acquiring or modifying equipment;
providing qualified readers or interpreters; or appropriately modifying
examinations, training, or other programs. Reasonable accommodation
also may include reassigning a current employee to a vacant position
for which the individual is qualified, if the person is unable to
do the original job because of a disability even with an accommodation.
However, there is no obligation to find a position for an applicant
who is not qualified for the position sought. Employing offices
are not required to lower quality or quantity standards as an accommodation;
nor are they obligated to provide personal use items such as glasses
or hearing aids.
A decision as to the appropriate accommodation
must be based on the particular facts of each case. In selecting
the particular type of reasonable accommodation to provide, the
principal test is that of effectiveness, i.e., whether the accommodation
will provide an opportunity for a person with a disability to achieve
the same level of performance and to enjoy benefits equal to those
of the average, similarly situated person without a disability.
However, the accommodation does not have to ensure equal results
or provide exactly the same benefits.
6. Q. What are the limitations on
the obligation to make a reasonable accommodation?
A. The individual
with a disability requiring the accommodation must be otherwise
qualified, and the disability must be known to the employing office.
In addition, an employing office is not required to make an accommodation
if it would impose an "undue hardship" on the operation of the employing
office's business. "Undue hardship" is defined as an "action requiring
significant difficulty or expense" when considered in light of a
number of factors. These factors include the nature and cost of
the accommodation in relation to size, resources, nature, and structure
of the employing office's operation. Undue hardship is determined
on a case by case basis. Where the facility making the accommodation
is part of a larger entity, the structure and overall resources
of the larger organization would be considered, as well as the financial
and administrative relationship of the facility to the larger organization.
In general, a larger employing office with greater resources would
be expected to make accommodations requiring greater effort or expense
than would be required of a smaller employing office with fewer
Q. Must an employing office give the employee the exact accommodation
the employee requests?
A. No. The decision
of what constitutes a reasonable accommodation in a given case is
made through an interactive process between the employing office
and the employee seeking accommodation. An employee requesting accommodation
may not necessarily get the accommodation he or she has requested.
The employing office is simply required to provides a reasonable
accommodation that allows the employee to perform the essential
functions of the job.
8. Q. Must an employing
office lower its standards for a particular position in order to
accommodate an individual with a disability?
A. No. The employing
office is not required to lower standards as an accommodation. An
individual with a disability must be qualified for the position,
and the employing office is under no obligation to change the essential
job functions or accept a work of inferior quality.
9. Q. Are applicants
or employees who are currently using illegal drugs covered by the
A. No. Individuals who currently engage
in illegal use of drugs are specifically excluded from the definition
of a "qualified individual with a disability" protected by the ADA
when the employing office takes action on the basis of their drug
use. Illegal drug use includes both use of illegal drugs, and illegal
use of legal drugs.
10. Q. Are alcoholics covered by the
A. Yes. While a current illegal user of drugs is not protected
by the ADA if an employing office acts on the basis of such use,
a person who currently uses alcohol is not automatically denied
protection. An alcoholic is a person with a disability and is protected
by the ADA if she or he is qualified to perform the essential functions
of the job. An employing office may be required to provide an accommodation
to an alcoholic, such as time off for treatment. However, an employing
office can discipline, discharge, or deny employment to an alcoholic
whose use of alcohol adversely affects job performance or conduct.
An employing office also may prohibit the use of alcohol in the
workplace and can require that employees not be under the influence
11. Q. May an employing office refuse to
hire an applicant because the employing office believes that it
would be unsafe because of the applicant's disability?
A. The ADA permits an employing
office to refuse to hire an individual if it can prove that the
individual poses a direct threat to the health or safety of him
or herself or others. A direct threat means a significant risk of
substantial harm. The determination that there is a direct threat
must be based on objective, factual evidence regarding an individual's
present ability to perform the essential functions of a job. An
employing office cannot refuse to hire someone because of a slightly
increased risk, or because of fears that there might be a significant
risk sometime in the future. The employing office must also consider
whether a risk can be eliminated or reduced to an acceptable level
with a reasonable accommodation.
12. Q. What
types of questions and procedures are appropriate or inappropriate
during the hiring process?
an applicant is offered a job, the employing office may not make
any inquiry that is likely to elicit information regarding a disability.
Further, the employing office may not require a medical examination.
The employing office may, however, ask applicants about their ability
to perform specific essential job functions, with or without reasonable
After an individual is offered a job, the employing
office may make job-related inquiries, so long as it treats all
post-offer applicants in the same manner.
Q. Are employees with AIDS covered?
A. Yes. The legislative
history to the ADA indicates that Congress intended the ADA to protect
persons with AIDS and HIV disease from discrimination.
14. Q. Does the employee
have to pay for a needed reasonable accommodation?
A. No. The ADA
requires that the employing office provide the accommodation unless
to do so would impose an undue hardship on the operation of the
employing office's business. If the cost of providing the needed
accommodation would be an undue hardship, the employee must be given
the choice of providing the accommodation or paying for the portion
of the accommodation that causes the undue hardship.
15. Q. If an employing
office has given an employee 12 weeks of Family and Medical Leave,
must the employing office give the employee more leave as a reasonable
accommodation for a disability?
A. Maybe. The employing office
may have to consider giving the employee more leave as a reasonable
accommodation if providing that additional leave would not cause
an undue hardship to the employing office. However, the employing
office may consider the fact that the employee has already taken
12 weeks in determining whether additional leave would impose an