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DISCRIMINATION BASED ON DISABILITY

Summary

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."

1. Coverage

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

a. Qualified individuals with disabilities The law prohibits employment discrimination against "qualified individuals with disabilities."

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 an impairment.

b. Reasonable 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 office.

Reasonable accommodation may include, but is not limited to:

  • 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 devices;
  • adjusting or modifying examinations, training materials, or policies; and
  • providing qualified readers or interpreters.
Undue hardship, as defined in the ADA, is an action requiring significant difficulty or expense, when considered in light of factors such as --
  • 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 operation; and
  • the employer's overall financial resources, the overall size of the employer's business, and the nature and structure of the employer's operation.
An employing 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.

3. 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.

4. Other 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 necessity;
  • 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.

5. Illegal 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 examinations.

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 section.

7. Remedies

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:

  • 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.
A description of the generally applicable remedies (attorneys fees, interest) and limitations (no civil penalties or punitive damages) is found in the Introductory section.


DISCRIMINATION 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 illness.

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 context.

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"?

A. Reasonable 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 without disabilities.

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 resources.

7. 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 ADA?

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 ADA?

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 of alcohol.

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?

A. Before 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 accommodation.

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.

13. 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 undue hardship.

 

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