CHAPTER THIRTEEN

Disability Discrimination

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Myths About DisabilityDiscrimination

1. A question on an application form about specific disabilities of an applicant is not improper

2. If an employer would have to alter the working environment to accommodate a disabled applicant or employee, that person is not qualified for the position

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3. Employees with disabilities have many more rights to their jobs than do disabled applicants

4. Individuals with disabilities generally are incapable of performing the jobs for which they apply

5. If someone does not have a disability but others believe she or he does, that person is still not protected against discrimination

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6. Individuals with disabilities only create liability for employers and are not good, productive employees

7. If an applicant with a disability applies for a job, the employer must hire that applicant

8. HIV status is not a disability under the ADA

9. Only physical disabilities are protected under the ADA

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10. Employers must give any and all accommodations requested by employees with disabilities

11. If an applicant needs a reasonable accommodation for a pre-employment test, that applicant is not qualified

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Americans with Disabilities Act of 1990 prohibits discrimination in employment based on disability

Vocational Rehabilitation Act of 1973 prohibits discrimination based on disability in receipt of benefits under any program receiving Federal funds

Statutory Basis

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Disproving Old Barriers

Groups with disabilities not covered under Title VII

Many employers refused to hire disabled applicants

Disabled applicants had to prove themselves far more than those not disabled

Employers should strive to be “disability-blind” and evaluate based on competence

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Regulation

Vocational Rehabilitation Act of 1973 – Applies to government and any firm

doing business with government– Section 503 requires affirmative action

on the part of federal contractors and agencies

– Did not protect private sector employees

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Americans with Disabilities Act (ADA)– Became effective in 1992– Applies Rehabilitation Act standards to

most private employers– Protects disabled from three types of

barriers Intentional discrimination Neutral standards with disparate impact Discrimination based on barriers that could

be overcome with accommodation

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– Employers must be proactive– To claim discrimination, employee must

prove That he or she is disabled That he or she is otherwise qualified That any accommodation required is

reasonable That he or she suffered an adverse

employment decision

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ADA defines disability as a physical or mental impairment that substantially limits one of more major life activities of an individual; a record of having such an impairment; being regarded as having such an impairment– Mental impairments and contagious

diseases may be included– EEOC gives guidelines for “major life

activity” and “substantially limits”– Including perception of impairment

protects disabled employees from prejudice

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Disabled employee must be otherwise qualified for position– Must be able to perform the essential

(fundamental) functions of the position– Employee may require and request

reasonable accommodation The removal of unnecessary restrictions or

barriers Does not place undue hardship on

employer

Disability harassment is also prohibited under ADA

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Effect on the Actions of Employers

Potential liability of employer based upon tort theory– Employer has a duty to protect

employees– Employer must not disclose

unnecessary medical information– Employers engage in genetic testing at

their own risk

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ManagementConsiderations

Medical exams permitted only after offer of employment and must be required of all employees in that position

Educate managers to become aware of the needs of the disabled

Internal Revenue Service offers tax credits to employers who hire disabled employees

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Don’t assume physical or intellectual limitations of disabled employee or applicant

Explore all possible reasonable accommodations for otherwise qualified employees or applicants

Document all discussions Be proactive and flexible Review application materials and job

descriptions to ensure no inappropriate questions or requirements