The Americans with Disabilities Act

Question 1

Who is protected by the ADA?

Answer 1

Any current employee, former employee, or job applicant who has a disability and is qualified to perform the essential functions of a job, with or without reasonable accommodation.

Question 2

Who can be sued under the ADA?

Answer 2

The ADA covers any

• private and public employers
• with 15 or more employees
• who work each workday in each of 20 weeks in the current or preceding year.

Also covers any agent of such employers.

Question 3

Under what circumstances must an employer make accommodations for the employee with a disability?

Answer 3

Accommodations are required if

• the accommodation is reasonable AND
• the accommodation would not cause undue hardship.

Employer has burden of proving that the accommodation would cause undue hardship.

Question 4

Are state employees covered by the ADA?

Answer 4

Yes, but the Eleventh Amendment prohibits suing a state for monetary damages, so state employees’ remedies are restricted.

Question 5

What remedies can state employees seek under the ADA?

Answer 5

1. File complaints with the EEOC, after which the federal government can sue the state for damages under the ADA.
2. Sue in federal court for an injunction for violations, such as a court order to reinstate an employee, to make a reasonable accommodation, or to change violative policies.

N.B.: Local governments are not protected by the Eleventh Amendment! So you can sue a local government for money damages under the ADA.

Question 6

What types of disability are there?

Answer 6

An individual qualifies as having a disability in one of three ways:

1. They have an actual disability.
2. They have a record of a disability.
3. They are regarded as having a disability.
4. They are related to somebody with a disability (under the first three definitions).

N.B.: Congress intends the definitions of disability to be construed broadly in favor of providing coverage to individuals.

Question 7

What is an actual disability?

Answer 7

A physical or mental impairment that substantially limits one or more of an individuals major life activities as compared to most people in the general population.

How to write this essay question:

1. Identify the major life activity that may be implicated.
2. Determine whether that major life activity is substantially limited, as compared to most of the people in the general population, by evaluating
   
   1. the nature and severity of the limitation;
   2. the duration; and
   3. the impact on the individual.
3. Conclude.

Question 8

What is a major life activity?

Answer 8

Functions such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Also the operation of a major bodily function, such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Question 9

What does it mean for something to substantially limit an idividual’s major life activities?

Answer 9

Under 2008 amendment, an impairment need not prevent nor significantly or severely restrict the individual from performing a major life activity; however, not every impairment will constitute a disability.

The term is mean to be construed boradly in favor of expansive coverage.

Question 10

What effect do mitigating measures have on an ADA analysis?

Answer 10

In determining whether a disability exists: Positive effects of mitigating measures (pump, glasses, etc.) should be ignored in determining if an impairment substantially limits a major life activity. Negative effects may be considered, though!

In determining whether the employer needs to provide a reasonable accommodation: Both positive and negative effects may be considered.

N.B.: Eyeclasses and contact lenses are an exception from these rules.

Question 11

Are temporary conditions covered?

Answer 11

Generally no. Supreme Court has not come down on this, though, and there is some discord.

Question 12

Are episodic impairments or impairments in remission covered?

Answer 12

Yes, if the episodic impariment would substantially limit a major life activity when active/if there is a possiblity that the impariment in remission could return in a substantially limiting form.

Examples: epilepsy, hypertension, MS, asthma, diabetes, major depression, bipolar disorder, schizophrenia; cancer.

Question 13

Is illegal drug use covered?

Answer 13

Generally not, however there is a safe haven for past users who either

• have successfully completed a supervised drug rehab program or are currently participating in such a program;
• have otherwise been rehabilitated successfully; OR
• are erroneously regarded as engaging in the illegal use of drugs.

Question 14

Is alcoholism covered?

Answer 14

Yes. An employer may not discriminate against someone on the basis of their alcoholism, though the employer can discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job performance. An employer may also prohibit employees from being under the influence of alcohol during work.

Question 15

What is a record of disability?

Answer 15

A person has a disability under the ADA if they have a record of a physical or mental impairment that substantially limits one or more major life activities, even if she is not currently limited.

You can’t discriminate against somebody who used to have cancer, for example. This is even true if the record represents a misdiagnosis!

Question 16

What does it mean to be regarded as having a disability?

Answer 16

Employer’s can’t take an action prohibited by the ADA (discriminatory failure to hire, termination, or demotion) based on the individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is transitory (six months or less) and minor.

Examples: a severely burned person would be “regarded as” having a disability if the employer didn’t hire them because the employer feared customers wouldn’t respond well.

Question 17

Does an employer need to provide reasonable accommodations for somebody who is merely “regarded as” having a disability?

Answer 17

No.

Question 18

Can an employer discriminate against somebody who is related to a person with a disability but does not have a disability themself?

Answer 18

No. An employer can’t do this, for instance, because they fear the employee would require more time off to care of the spouse with a disability.

Question 19

What is the prima facie case for a failure to accommodate claim under the ADA?

Answer 19

The plaintiff must show that they

1. have a disability within the meaning of the ADA;
2. are qualified to perform, with or without reasonable accommodation, the essential functions of the position they hold or desire; AND
3. suffered an adverse employment action by an employer subject to the ADA as a result of discrimination.

Question 20

What does it mean to be a “qualified employee” (and who must prove it)?

Answer 20

An employee must prove that

1. they possess the requisite skill, experience, education, and other job-related requirements of the position; AND
2. they are able to perform the essential functions of the position with or without reasonable accommodation.

Question 21

What are essential job functions?

Answer 21

The fundamental job duties of the position in question. Factors to consider:

• the position exists to perform that function;
• there are a limited number of employees available among whom that job function can be distributed; OR
• the function is highly specialized so that person who holds the position is hired for their expertise to perform that function.

Examples: Regular attendance and reporting for work at a particular time.

Question 22

Can an employer disqualify somebody for an inability to perform non-essential job functions?

Answer 22

No. Performance of marginal or incidental job functions may not be considered.

Question 23

When is a reasonable accommodation required?

Answer 23

When the individual is qualified to perform essential job functions except for limitations caused by an actual disability or a record of disability (but not a “regarded as” disability), AND the employer is aware of the disability.

Question 24

What is a reasonable accommodation?

Answer 24

Any change or adjustment to the job, the work environment, or the way things usually are done that would allow the person with a disability to apply for the job, perform the job functions, or enjoy equal access to benefits available to other individuals in the workplace.

Question 25

What standard is used to determine what “reasonable” means?

Answer 25

A case-by-case analysis.

Question 26

Who has the burden of proving that a reasonable accommodation exists?

Answer 26

The employee/plaintiff.

Question 27

How must the appropriate accommodations be determined?

Answer 27

Through an interactive process between the employer and the employee.

Question 28

Is reassignment allowed as a reasonable accommodation?

Answer 28

Yes, as long as

1. there is no accommodation that would enable the employee to remain in their current position AND
2. the employee is qualified to perform the essential functions of the position to which they are being reassigned, with or without reasonable accommodation.

N.B.: The employer has to assist the employee in identifying open positions, but the employee has to prove that they can perform the essential functions of that position.

N.B.: The employer is not obligated to “bump” another employee from a position in order to accommodate the employee with a disability.

Question 29

How can the employer defend against a failure to accommodate claim?

Answer 29

By arguing that the accommodation was an undue hardship OR that the accommodation would create a direct threat to the safety or health of other employees.

Question 30

What is an undue hardship?

Answer 30

An action that would require significant difficulty or expense when considered in relation to factors such as the size of a business, its financial resources, and the nature and structure of its operation.

This is determined on a case-by-case basis. Once the employee shows that an accommodation is reasonable on its face, the employer has the burden to prove that the particular accommodation would pose an undue hardship.

Question 31

Can an employer condition an offer of employment on the results of a medical exam?

Answer 31

Yes, but only if

1. all entering employees in similar jobs are subject to a medical exam requirement AND
2. the results of the exams are kept confidential.

N.B.: There is no requirement that the exams be job-related or consistent with business necessity UNLESS the employer is subjecting current employees to the exam.