Disability Discrimination in the Workplace: An Overview of the ADA

The Americans with Disabilities Act (ADA) protects employees from discrimination based on a disability.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees or applicants with disabilities in all aspects of employment including hiring, pay, promotion, firing, and more. It also protects employees from retaliation when they enforce their rights under the law. (To learn more about ADA rules for the hiring process, read Nolo's article on getting hired with a disability.)

The ADA also requires employers to provide reasonable accommodations to workers with disabilities, as long as it won't cause the employer undue hardship. The ADA specifies what counts as a disability, which workers are protected by the law, when accommodations are required, and what constitutes an undue hardship.

Private employers with at least 15 employees must follow the ADA. However, many states have similar laws, which may apply to smaller employers.

Covered Employees

The ADA protects the following employees:

  • An employee who has a disability. If an employee has a physical or mental impairment that substantially limits a major life activity, he or she is protected.
  • An employee with a history of impairment. An employer can't discriminate against an employee based on his or her previous disability (for example, an employee who is in remission from cancer).
  • An employee who the employer regards as disabled. This is true even if the employer is wrong, and the employee is not actually disabled. If the employer discriminates against an employee based on an incorrect belief that the employee has a disability, the employee is protected by the ADA.

Defining "Disability"

A disability for purposes of the ADA is a physical or mental impairment that substantially limits a major life activity. What constitutes a major life activity is broadly defined to include basic tasks (like walking, reading, bending, and communicating), as well as major bodily functions (such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).

If an impairment doesn't significantly limit a person's ability to perform a major life activity, it isn't a disability protected by the ADA. For more information on whether specific ailments are considered disabilities, visit the Equal Employment Opportunity Commission's (EEOC) website at www.eeoc.gov.

Who is a Qualified Worker With a Disability?

Only qualified workers with disabilities are protected by the ADA. A qualified worker with a disability is someone capable of performing the essential duties of the job, with or without a reasonable accommodation by the employer.

The essential duties of the job are those tasks that are fundamental to the position. Ancillary duties don't count. For example, a call center's customer service representatives might answer phones, draft correspondence to dissatisfied customers, and resolve customer complaints. If business is slow, the employees might also file or restock office supplies. The customer service tasks are probably essential duties of the job, while the "filler" tasks probably aren't.

Reasonable Accommodation

An employer must provide a reasonable accommodation—an adjustment or modification that allows the employee to do the job—to a qualified employee with a disability. Unless the disability is obvious or already known to the employer, the employee must request a reasonable accommodation; the employer isn't required to guess whether one is needed. Also, the employer isn't required to provide the particular accommodation an employee requests if another accommodation will do. However, the employer must engage in the "interactive process," a dialogue with the employee about accommodations that will meet that person's needs. Read more about reasonable accommodation for disability.

Undue Hardship

The employer doesn't have to provide a reasonable accommodation if doing so would create an undue hardship. An undue hardship means significant difficulty or expense to the business. These factors determine whether an accommodation creates an undue hardship:

  • the nature and cost of the accommodation
  • the financial resources of the employer (a larger, more successful business can usually afford to do more than a smaller one)
  • the nature of the business, including size, composition, and structure, and
  • accommodation costs already incurred in the workplace.

If the cost of an accommodation threatens the financial viability of the organization—whether because the company is so small or the cost is so large—it's probably an undue hardship and not required. However, according to the EEOC, the majority of accommodations cost less than $500. For most employers, that makes them reasonable and easy to implement.

Confidentiality

The ADA also has a strict confidentiality requirement. Employers must keep medical information related to an employee’s disability and medical history private. Medical records and other documents containing information about a disability must be stored in a secure medical file separate from the personnel file. Employers also cannot disclose that an employee has requested or is receiving a reasonable accommodation.

The ADA does allow disclosure of a disability in certain circumstances, however. An employer may disclose confidential medical information under the following circumstances:

  • to supervisors or managers, if necessary to communicate disability-related work restrictions or accommodations
  • to first-aid workers and first responders, if the disability might require medical treatment or special evacuation procedures
  • to government workers who are investigating the employer's compliance with the ADA
  • to state workers' compensation agency employees, as required by law, and
  • for insurance purposes.

In some cases, though, an employee’s voluntary disclosure of a disability is not considered confidential under the ADA. This might happen when an employee tells an employer about a disability without prompting or in response to very general inquiries (such as “How’s it going?” or “Is everything okay?”)—and the employee is not requesting a reasonable accommodation at the time. For example, in one case, an employee was a no-show to work and his boss emailed him saying “We need to know what is going on.” The employee emailed back, saying that he suffered from severe migraines after a car accident several years ago, which left him bedridden at times. Because the disclosure was not in response to a targeted inquiry about his medical condition or ability to do his job, the court found that the employer was not required to keep the employee’s medical condition confidential.

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