Employment law and workers with disabilities: implications for public sector managers and human...

The Americans With Disabilities Act (ADA)(1) extends protection against discrimination in employment, housing, public accommodations, education, transportation and communications to an estimated 43 million Americans(2) with physical and/or mental disabilities. Given that many Americans with disabilities

The Act officially became law upon being signed by President Bush on 26 July, 1990 with affected organizations granted a two-year grace period to comply with its provisions. Title I of the five separate titles or sections of the Act regulates employment relationships and prohibits employers from discriminating against any qualified individual with a disability with regard to hiring, promotion or privilege of employment.(3) It seeks to provide protection to workers with disabilities similar to that provided by the Civil Rights Act of 1964(4) which prohibited discrimination in employment based on race, sex, color, religion and national origin.(5)

Nature of Employment Discrimination

In passing the Act, Congress identified two particular problems which hindered those with disabilities.(6) The first was that the disabled were socially isolated due to a lack of access to adequate educational opportunities; the second, that the disabled were largely unemployed or underemployed.(7) It might seem that the lack of educational opportunities was a contributing source of the unemployability issue. However, with respect to the latter, Congress recognized that discrimination, not a lack of training, was preventing many disabled persons from securing meaningful employment.(8)

Discrimination against those with disabilities in employment settings has often involved the use of application blank questions and/or interview questions that have inquired into the existence of a disability. While the existence of a disability often has no direct relationship to the prospective employee's ability to do the job, it has nonetheless been used to exclude individuals with disabilities from being hired. Rather than inquire into the existence of a disability, employers need to determine an applicant's ability to perform the functions of the job. Many individuals with disabilities have exemplary job performance; hence, the mere existence of a disability often does not impact an employee's ability to do his/her job.

Discrimination also includes slotting workers with disabilities into menial or dead-end jobs or passing them over for promotions for which they are qualified. Many employers who have hired individuals with disabilities have placed them in undesirable positions and/or positions that fail to utilize their skills and abilities. Promotion opportunities for these individuals have also been scarce. Legal actions against these practices can argue that discrimination is not just limited to initial entry into the organization but extends to ongoing treatment once an individual is employed.

Scope of the Act

The scope of the Americans With Disabilities Act is much more extensive than its predecessor, the Vocational Rehabilitation Act, passed in 1973.(9) The Rehabilitation Act covered only the federal government as an employer,(10) federal contractors and subcontractors(11) and recipients of federal grants and funds.(12) The ADA, on the other hand, covers the majority of state and local government agencies in addition to the federal government. Specifically it applies to "any employer, employment agency, labor organization or joint labor-management committee with fifteen or more employees"(13) and prohibits discrimination against "any qualified individual with a disability because of such disability in regard to job application procedures, hiring or discharge of employees, employee compensation, advancement, job training and other terms, conditions, and practices of employment."(14)

As of 26 July, 1992 organizations that employ twenty-five or more individuals are subject to the-provisions of the Act and in two years coverage will be extended to organizations that have fifteen or more employees.(15) Enforcement of the Act is under the jurisdiction of the Equal Employment Opportunity Commission.(16) However, unlike the Rehabilitation Act which was enforced only by the Federal government, the ADA also provides for private action by citizens who retain private attorneys.(17) This ability to circumvent the cumbersome bureaucracy of the Federal government may also contribute to a significant increase in litigation under the ADA.

Definitions and Interpretations

Similar to the Rehabilitation Act, the Americans With Disabilities Act specifically extends protection against discrimination to three different groups of individuals in its definition of what constitutes a "disabled individual" for statutory purposes; those who have "an actual physical or mental impairment which substantially limits one or more major life activities,"(18) those "with a record of physical or mental impairment which substantially limited one or more major life activities,"(19) and those "regarded as having a physical or mental impairment which substantially limits one or more major life activities." As a guideline, the Rehabilitation Act describes a physical or mental impairment as "any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems; neurological; musculoskeletal; special sense organs; respiratory; genito-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."(21) The Rehabilitation Act further defines "major life activities" as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."(22) Given the consistent definition of what constitutes a disabled person in the two Acts,(23) these clarifying points of the Rehabilitation Act are expected to apply to the Americans With Disabilities Act as well.

One of the important components of the Americans With Disabilities Act is the broad definition of a disabled person to include persons who suffer discrimination because of past disabilities that no longer exist(24) (second category) or because of the perceptions and attitudes of others (third category).(25) This second category, "having a record of such impairment," is distinguished from the first category, "having such impairment," in that under the former, a person no longer has to have a current physical or mental impairment to qualify. If an employer decides to terminate an employee based on the individual's past history of impairment or the fear that the condition will recur, the employee would be protected under this part of the definition. In an appendix to the Rehabilitation Act, the United Stated Department of Health and Human Services cited examples of some conditions that should qualify under such an interpretation of this category.(26) These conditions include people with mental or emotional illness, heart disease, or cancer who have since recovered as well as persons incorrectly classified of having a condition such as mental retardation.

The third category of disability, "regarded as having such an impairment," clearly allows inclusion of a large number of individuals who would not be covered under the first two categories. These individuals have either a physical or mental impairment that does not substantially limit one or more major life activities or a physical or mental impairment that substantially limits a major life activity because someone else believes they are so limited. The United States Department of Health and Human Services has also cited examples of some qualifying conditions under this category.(27) These conditions include persons with traits such as a limp or disfiguring scar as well as those infected with the HIV virus which causes AIDS.

Regardless of which of the three categories an individual might claim membership to define him/herself as disabled under the statute, one important and somewhat controversial qualification exists. It involves the inclusion by Congress of the term "otherwise qualified." Originally stated as part of the Rehabilitation Act,(28) this condition was continued in the Americans With Disabilities Act.(29) It states that, "No otherwise qualified disabled individual shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" where "consideration is given to the employer's judgement as to what functions of a job are essential."(30)

This distinction of "otherwise qualified" is an important one. It assumes that the individual is capable of performing the normal requirements of a job even through he/she is disabled. As a result, an individual charging an employer with discrimination based solely on the reasons of his/her disability must not only establish that he/she satisfied the statutory definition of a "disabled individual" but must also demonstrate that he or she is an "otherwise qualified" individual who meets all job requirements. The burden of proof falling on the alleged victim of discrimination becomes two-fold. Hence, in the event that an individual's disability prevents him or her from satisfactorily performing a job, the Americans With Disabilities Act will not protect the individual.

Despite a number of similarities to the Rehabilitation Act, the Americans With Disabilities Act does break new ground on several fronts. The first of these involves an enumeration of eight specific types of conduct which would constitute employment discrimination.(31) Specifically, the Act defines discrimination to include: 1) adversely classifying an applicant or employee because of his or her disability; 2) participating in a contractual relationship that has the effect of discriminating against qualified applicants or employees with disabilities; 3) using standards or procedures which have the effect of discrimination on the basis of disability or which perpetuate such effect; 4) denying qualified individuals equal jobs or benefits because they associate with an individual known to have a disability; 5) not making reasonable accommodations to the known physical or mental limitations of a qualified individual who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business or such covered entity; 6) denying employment opportunities to a job applicant or employee who is a qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairment of the employee or applicant; 7) using employment tests or other selection criteria which have a disparate impact on individuals with disabilities unless the test or selection criteria can be shown to be job-related and consistent with business necessity; 8) failing to administer employment tests in a manner which most accurately reflects the job related skills of employees and application with disabilities.

Another distinguishing aspect of the Act is that it requires employers to make "reasonable accommodations" to the known physical or mental limitations of qualified individuals unless those accommodations "would impose an undue hardship on the operation of the business."(32) While the Rehabilitation Act also requires "reasonable accommodation,"(33) it doesn't define any such accommodations in specific terms. The ADA, however, does so and includes under reasonable accommodation, "making existing facilities usable by individuals with disabilities"(34) as well as "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies...and other similar accommodations for individuals with disabilities."(35)

Such reasonable accommodation can be denied if it creates an "undue hardship" upon the employer.(36) The only guidance the Act provides in assessing the state of an accommodation as an undue hardship defines such a hardship as "an action requiring significant difficulty or expense."(37) While the Americans With Disabilities Act, like the Rehabilitation Act, does list general factors to be considered in assessing whether a particular accommodation would create an undue hardship, such as the overall size of the employer's business, its type of operation, and the nature and cost of the accommodation,(38) the intent of Congress here implies that a case-by-case analysis must be made concerning "undue hardship." While the statute is vague and offers no specific guidelines, the standard would dearly be determined relative to the physical and financial resources of the employer. Hence, what might be reasonable for a larger more resource-abundant employer, could constitute an undue hardship for a smaller employer. Nonetheless, the vagueness of the statute in this regard could easily be a point of contention in an alleged discrimination charge. It should be noted, however, that recent experience has shown that two-thirds of all such accommodations cost less than $500. and that half cost no more than $50.

It should be further noted that the ADA departs from the Rehabilitation Act in that the former allows "qualification standards"(39) or criteria that are "job-related and consistent with business necessity, where such performance cannot be accomplished by reasonable accommodation."(40) In other words, requirements related to the performance of specific tasks may be established that are not intentionally designed to exclude specific categories of workers. Further, this "qualification standard" may require that an individual not "pose a direct threat to the health and safety of other individuals in the workplace."(41) Hence, while such "qualification standards" could result in the exclusion of certain workers with disabilities, they are not illegal in and of themselves unless their purpose was to intentionally limit opportunities for these workers.

Implications for Public Sector Organizations

The fact that the coverage of the Act includes the vast majority of public sector organizations has resulted in a tremendous amount of uncertainty for many employers who were not covered under the Rehabilitation Act. A critical question many of these organizations seek to answer is how the ADA will effect them and what changes will they need to make in operations and human resource policies. An interesting point relative to this is that even though the ADA will cover most public and private employers, it will not affect all of these employers to the same extent. Many states and municipalities have enacted laws prior to the passage of the ADA that were as stringent or even more stringent than the terms of the ADA. Consequently, many employers will have already met the requirements of the ADA by their compliance with their own state or local laws pertaining to discrimination based on disability.

As previously discussed, the ADA has been considered by many to be the equivalent of the Civil Rights Act for persons with disabilities as it extends the same protection against discrimination to those with disabilities as the Civil Rights Act of 1964 extends to those discriminated against due to race, color, religion, sex or national origin.(42) Ironically, however, discrimination based on disability has been found to be rooted in ignorance while hostility has traditionally formed the basis for discrimination toward those covered under the Civil Rights Act. The implication of this for organizations is important. In order for discrimination against those with disabilities to be curtailed, it will be necessary to change the way people think about individuals with disabilities. Perceptions will need to be confronted and workers, as well as those in the larger society, will need to be educated to combat this ignorance and any resulting prejudices.

Role of Public Managers

Managers in the public sector will be called upon to confront perceptions and the resulting behaviors of their employees relative to the employment of workers with disabilities. Before this can happen, managers themselves must confront their own perceptions of what it means to have a disability and the extent to which workers with disabilities can and should be a integral part of their work environments. Managers can be role models in deterring their subordinates' unfounded myths and prejudices concerning potential coworkers with disabilities. This, however, cannot be achieved until managers confront their own perceptions and attitudes.

As part of their own training, managers must first be made aware of what constitutes a disability. It is critical to remember that the ADA has defined an individual with a disability in three ways; those with a "physical or mental impairment that substantially limits one or more major life activities,"(43) those with "a record of such impairment"(44) and those who are "regarded as having such an impairment."(45) In terms of what constitutes either an "impairment" or a "major life activity," the Act clearly identifies and explains some of these conditions and functions.(46)

A caveat is in order, however, concerning the third portion of the definition. This section covers individuals who have impairments that do not actually interfere with work or any other major life activity, but who may be discriminated against by the negative attitudes of others towards the functionally insignificant attribute or impairment.(47) The ADA in these cases defines the disability as the negative attitudes of others, rather than the "impairment" itself. Hence, the ignorance and prejudice that exist in our society toward those with disabilities can be the basis of legal action against an employer or a potential employer.

The first critical step managers will need to take in this regard is to become knowledgeable about the specific nature of disabilities of their employees and applicants. The coverage of the Act is so wide-ranging and includes so many varied types of disabilities that organizations must avoid grouping all disabled individuals into one class. Employment of an individual with one type of disability is not necessarily comparable to employment of a person with another type of disability. Various disabilities have different symptoms and affect the ability and capacity for work differently. This issue is of particular concern as the ADA seems to encourage a case-by-case analysis of the specific facts of each situation.(48)

In addition those afflicted with certain disabilities, such as AIDS, do not have a standard manifestation and progression of symptoms. Employers are, therefore, advised to avoid implementing blanket rules regarding what accommodations will be provided for any particular disability or class of disability. Managers who do not take it upon themselves to self-educate about certain conditions will not be able to respond to employees in a manner that is consistent with ADA requirements.

Human Resource Practices

In training managers to confront these issues concerning the employment of workers with disabilities, a number of human resource management tools and strategies can be utilized. The first of these involves the preparation and scrutiny of detailed job descriptions for each position. The critical question that needs to be addressed here concerns what constitutes the essential elements or functions of the job. The courts in deciding whether an alleged discrimination victim is "otherwise qualified" to hold a given job are instructed to rely upon an analysis of the essential or critical functions of the job.(49) A clear specific job description will allow a clearer determination of the individual's ability to perform the job in question.

Job descriptions should not include those responsibilities or functions which are "desirable" or "nice to have" as the courts will probably find them to be invalid in defense of a discrimination charge. Although this process involves placing weight on what the employer judges to be essential job functions, the law specifically states that written job descriptions prepared before advertising or interviewing applicants will be considered evidence of the job's essential functions in a discrimination action.(50) Job descriptions should hence not be overly broad nor contain functions which the employee may never actually have to perform.

Managers can also scrutinize their selection processes, particularly relative to job requirements and testing. Job requirements should be consistent with the detailed job description and not mandate skills or experiences that are not necessary for effective performance of the job in question. Any non-essential standards that intentionally or unintentionally exclude certain classes of individuals would be a violation of the law relative to the theory of disparate impact. In inquiring about an applicant's ability to perform a job, the ADA prohibits any pre-employment inquiries of disability.(51) The Act limits any such inquiry to a general question of whether the individual has the ability to perform specific job-related functions.(52)

Any form of testing that intentionally or unintentionally screens out applicants with disabilities is prohibited unless it can be shown that the test is directly related to the responsibilities of the position.(53) Tests that tend to violate this the most affect individuals with sensory, manual or speaking disabilities. Unless these traits will inhibit the performance of the essential functions of the job, alternative testing should be considered or the test itself discontinued.

Physical testing must also be reevaluated in this context. Physical examinations often limit the opportunities for workers with disabilities, and the ADA has responded by prohibiting them unless the medical exam is specifically related to the tasks to be performed.(54) The Act further prohibits any medical exam designed to determine whether a person has a disability or to assess the severity of an existing disability.(55)

One method of determining the potential "fit" of an applicant with a disability with job requirements is to utilize a work sample test. Work sample tests are becoming increasing popular in human resource practice and require the individual to actually perform essential or critical functions of the job in question. These tests would clearly fit within the parameters of ADA requirements as long as they are based upon a thorough job analysis and test those skills most critical or essential to successful performance of the job. Work sample tests are also useful in allowing an applicant to get a first-hand feel for what the job will actually be like. This can be important for a worker with a disability in allowing him/her to assess the "fit" between personal skills and needs and the tasks and responsibilities of the job.

Participative management techniques can be a tremendous asset in understanding workers with disabilities and their needs and integrating them into an existing workplace. Given the facts that managers undoubtedly have little time to self-educate themselves about specific disabilities and that disabilities need to be handled situation specifically, involving the employee in decisions that affect him/her would not only be time-efficient but also potentially motivating to the individual as well. Managers should ask employees with disabilities about their specific disabilities and what they expect or need relative to "reasonable accommodation." Consulting with the individual with a disability to ascertain the precise job-related limitations imposed by the disability and jointly discussing potential accommodations would also be well within the guidelines established by the ADA from a legal standpoint.

One of the more difficult challenges managers may face regarding the employment of individuals with disabilities is altering the perceptions and opinions of coworkers. Individuals within the work group may be uninformed concerning the disability or disabilities in general and have resulting prejudices that will not only impact the performance of affected workers but also fall under the coverage of the ADA via the third classification of an individual with a disability.

One technique to help remedy this would be the formation of work groups or teams with interdependent tasks whereby the worker with the disability comes into greater contact with coworkers. Assigning tasks and responsibilities to a team rather than individuals will potentially allow the worker with a disability to become more a part of the mainstream. Workers with disabilities are often isolated socially by the nature of their tasks, prohibiting coworkers from gaining any knowledge or understanding of the individual and the disability. While the move toward interdependent tasks and self-managed work groups has been gaining increased popularity in management practice for the many other benefits they provide, these groups could also be an ideal means to fully socialize individuals with disabilities within their organization and to allow employees the opportunity to become better informed about coworkers with disabilities.

As previously stated, hiring individuals with disabilities is not enough from either an ethical or legal standpoint. Individuals with disabilities must be treated equally, particularly relative to opportunities for advancement and promotion. One tool that can be used to assist in the development of individuals with disabilities is the skills inventory. The use of a skills inventory can assist in identifying any individual in the organization, including those with disabilities, for opportunities for which they are qualified. Given the facts that many individuals with disabilities have traditionally been under-utilized relative to their skills and that many have been denied the appropriate training and development opportunities both inside and outside of the organization, the skills inventory can not only further assist in the development of employees with disabilities but also assist the organization in effectively utilizing its human resources.

Conclusion

The Americans With Disabilities Act raises a number of questions for public sector employers, not all of which can be answered at this point in time.(56) Like all laws, many of its terms are open to interpretation and subject to the specific facts of the case at hand. As specific allegations of discrimination are filed and cases heard, more specific operational implications for management will emerge. Despite the fact that there is no "cookbook" approach to deal with the requirements of the Act, guidelines, such as the ones provided above, can significantly reduce the chances of management violating the terms of the Act. At the same time, organizations and managers can perform a vital service to society and those individuals with disabilities in society by opening up additional employment opportunities to those with disabilities and bringing these workers into the mainstream of their organizations and communities.

Notes

1. 42 U.S.C. Sect. 12101 (1990)

2. 42 U.S.C. Sect. 12101 (a)(1)(1990)

3. 42 U.S.C. Sect. 12111

4. P.L. No. 88-352, 78 Stat 353 (1964) as amended 86 Stat 103 (1972), 92 Stat 2076 (1978)

5. The ADA extends the coverage of the Vocational Rehabilitation Act of 1973, P.L. No. 93-122, 87 Stat 355 (1973), as amended 92 Star 2984 (1978) to all employers with fifteen or more employees, making its scope of coverage identical to that of the Civil Rights Act of 1964. The ADA also provides remedies for employment discrimination identical to those available under the Civil Rights Act of 1964. These remedies consist of injunctive relief, which requires the employer to temporarily return the employee to his/her position until the full discrimination charges are heard, and upon the discrimination claim being upheld by the court, permanent reinstatement and backpay.

6. 42 U.S.C. Sect. 12101 (a)

7. 42 U.S.C. Sect. 12101 (a)

8. 42 U.S.C. Sect. 12101 (a)

9. 29 U .S.C. Sect. 706

10. 29 U.S.C. Sect. 792

11. 29 U.S.C. Sect. 793

12. 29 U.S.C. Sect. 794

13. 42 U.S.C. Sect. 12111 (2), (5)(A)

14. 42 U.S.C. Sect. 12112 (a)

15. 42 U.S.C. Sect. 12111 (5)(A)

16. 42 U.S.C. Sect. 12111 (1)

17. 42 U.S.C. Sect. 12212

18. 42 U.S.C. Sect. 12102 (2)(A)

19. 42 U.S.C. Sect. 12102 (2)(B)

20. 42 U.S.C. Sect. 12102 (2)(C)

21. 45 C.F.R. Sect 84.3 (j)(2)(i)-(ii) (1987)

22. 45 C.F.R. Sect 84.3 (j)(2)(i)-(ii) (1987)

23. The ADA utilizes the Rehabilitation Act's definition of what constitutes a "handicapped" individual in its own definition of a "disabled" individual.

24. Section 12102 (2)(B) describes those "with a record of physical or mental impairment."

25. Section 12103 (2)(C) describes those "regarded as having a physical or mental impairment."

26. 45 C.F.R. Sect.84 Appendix A

27. 45 C.F.R. Sect.84 Appendix A

28. 29 U.S.C. Sect.794

29. 42 U.S.C. Sect. 12111 (8)

30. 42 U.S.C. Sect. 12111 (8)

31. 42 U.S.C. Sect. 12112 (b)(1)-(7)

32. 42 U.S.C. Sect. 12111 (8), (10)

33. 45 C.F.R. Sect. 84.12 (b)

34. 42 U.S.C. Sect. 12111 (9)(A)

35. 42 U.S.C. Sect. 12111 (9)(B)

36. 42 U.S.C. Sect. 12111 (10)(A)

37. 42 U.S.C. Sect. 12111 (10)(A)

38. 42 U.S.C. Sect. 12111 (10)(B)(i)-(ii)

39. 42 U.S.C. Sect. 12113 (a)

40. 42 U.S.C. Sect. 12113 (a)

41. 42 U.S.C. Sect. 12113 (b)

42. see notes 4 and 5

43. see note 18

44. see note 19

45. see note 20

46. see note

47. 42 U.S.C. Sect. 12102 (2)(c)

48. 42 U.S.C. Sect. 12213 (a)

49. 42 U.S.C. Sect. 12111 (8)

50. 42 U.S.C. Sect. 12111 (8)

51. 42 U.S.C. Sect. 12112 (c)(2)

52. 42 U.S.C. Sect. 12112 (c)(2)(B)

53. 42 U.S.C. Sect. 12112 (c)(4)(A)

54. 42 U.S.C. Sect. 12112 (c)(4)(A)

55. 42 U.S.C. Sect. 12112 (c)(4)(A)

56. Examples of this would be what constitutes "reasonable accommodation", "otherwise qualified" and "essential" functions of a job. While guidelines have been established, a body of case law will be needed to fully interpret both the meaning and reach of such terms.

Jeffrey A. Mello, Ph.D. (Northeastern University) is a Visiting Assistant Professor in the College of Business Administration at Northeastern University in Boston, MA.