I. Handicap Discrimination

The federal Americans With Disabilities Act (ADA) was enacted in 1990 to widen the scope of protection available to disabled workers. Employers with more than 15 workers must avoid disability discrimination in all phases of the job. Employers are required to eliminate any inquiries on medical examinations and forms designed to identify an applicant's disabilities. Persons with disabilities cannot be disqualified from applying for a job because of the inability to perform nonessential or marginal functions of the job. Employers must scrutinize all job requirements so they do not inadvertently screen out qualified disabled applicants. Under the ADA, it is unlawful to refuse to hire people with disabilities who have equal skills after the employer provides reasonable accommodation, such as purchasing a telephone headset for a person with a hearing impairment.

The following list will familiarize you with typical obligations employers must generally follow during the hiring process:

1.Employers cannot ask disability-related questions (such as "Do you presently have a disability?" or "Do you have any impairments which prevent you from performing the job you've applied for?") in interviews.

2.Employers cannot inquire about the kind of accommodation a person needs in order to perform the job properly if hired.

3.A medical exam can be requested only after hiring provided it is an essential condition for employment for all entering employees in that position.

4.All contracts with employment agencies, unions, and insurance plans cannot be discriminatory.

5.Employers cannot deny employment opportunities to an applicant or employee because of the need to make reasonable accommodation for a disability.

6.Employers must avoid employment tests or selection criteria that have a disparate impact on individuals with disabilities unless the test or criteria are shown to be job-related and supported by business necessity.

7.Employers may deny jobs to handicapped workers if they can demonstrate the position poses a danger to the individual's health and welfare or that the hiring would significantly interfere with productivity or create dangers to others.

The main object of the ADA is to protect any person with a physical or mental impairment that substantially limits one or more life activities. This covers a broad range of disabilities, including deafness, AIDS, cancer, and learning disabilities. It does not include compulsive gambling or pregnancy. (Note: State law may be more inclusive as to what constitutes a covered disability, so speak to a lawyer for more details if applicable.)

In addition to job applications and screening procedures, every aspect of the employment relationship is protected, from employee compensation, terms, and privileges to job classifications, fringe benefits, promotions, training opportunities, and discharge.

Although ADA does not require an employer to give preferential consideration to persons with disabilities, such persons cannot be excluded for consideration for a raise, promotion, or on-the-job opportunity because of an inability to perform a marginal function. The law also states that persons associated with those who have a disability, such as an individual who does volunteer work with AIDS patients, cannot be discriminated against because of that relationship or association.

Tip:The law does not cover workers who cannot work because of a total disability; the law only protects workers with disabilities who are capable of continuing working if the employer provides reasonable accommodation. On-the-job accommodations that must be provided to handicapped employees include:

• Restructuring or modifying work schedules
• Offering part-time work
• Permitting the employee to work at home
• Reassigning an individual to a vacant position
• Providing readers or interpreters for blind or deaf persons
• Acquiring or altering equipment or devices
• Making existing facilities readily accessible to the disabled
• Adjusting marginal job requirements
• Allowing flexibility in arrival and departure times for people who require special vehicles for transportation or who are confined to wheelchairs

Counsel Comments:Employers are required to make such accommodations only if the disability is known, if the accommodation requested is reasonable, and if the employee is truly partially disabled. An employer is relieved of responsibility to accommodate a disabled employee when to do so would impose an undue hardship. Factors considered in determining whether undue hardship exists include the nature and the costs of the accommodation to the employer, the overall financial resources of the employer (i.e., number of employees, overall size of the business, etc.), and other related factors. Courts will look at the type of the operation, overall size, budget, profitability of the employer, and the financial impact of the suggested accommodation in determining whether undue hardship exists. The facts concerning what constitutes undue hardship vary from case to case; however, if the employer can afford to accommodate, it must generally do so.

Final Tips

As a result of the ADA and various state laws, employers now have enhanced obligations to current employees who develop disabilities while working. Wrongful discharge of such persons could result in severe penalties, particularly for workers who contract the AIDS virus, develop alcohol problems affecting their attendance or performance, or even become obese. (Note: Although the ADA defines drug addiction as a disability, which means that you cannot be refused a job or be fired because of past drug addictions, there is no protection for current drug users. You can be legally terminated for using drugs on the job or working in an impaired state because of current drug use.)

While employers are generally permitted to terminate workers who become completely disabled, every opportunity must be extended to give handicapped workers the opportunity to work at less demanding jobs or offer other accommodations. Employers must also provide you with existing short- or long-term disability benefits and other existing medical coverage (as well as an enhanced severance package if you can negotiate it) before you leave. Thus, always try to obtain the best post-termination benefits if you are fired and possess a disability. Contact a lawyer immediately to discuss your rights and options.