AMERICANS WITH DISABILITIES ACT
The Americans with Disabilities Act of 1990 (ADA) is the short title of United States
Public Law 101-336, 104 Stat. 327 (July 26, 1990), codified at 42 U.S.C. § 12101
et seq., signed into law on July 26, 1990 by President George H. W. Bush.
The ADA is a wide-ranging civil rights law that prohibits, under certain
circumstances, discrimination based on disability. It affords similar protections
against discrimination to Americans with disabilities as the Civil Rights Act of
1964, which made discrimination based on race, religion, sex, national origin, and
other characteristics illegal.
Disability is defined as "a physical or mental impairment that substantially limits a
major life activity." The determination of whether any particular condition is
considered a disability is made on a case by case basis. Certain specific conditions
are excluded as disabilities, such as current substance abusers.
The following are frequently asked questions about the Americans With Disabilities Act:
What Practices And Activities Are Covered By The
Employment Nondiscrimination Requirements?
ANSWER: The ADA prohibits discrimination in all
employment practices, including:
- Job application procedures
- Other terms, conditions, and privileges of employment
- Fringe benefits
- All other employment-related activities
Who Is Protected From Employment Discrimination
ANSWER: Employment discrimination is prohibited
against "qualified individuals with disabilities." This includes applicants for
employment and employees. An individual is considered to have a "disability" if he or she:
Persons discriminated against because they have a known association or relationship
with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who
have impairments. These must substantially limit major life activities such as:
- Performing manual tasks
- Caring for oneself
An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or
visual impairment, mental retardation, or a specific learning disability is covered,
but an individual with a minor, non chronic condition of short duration - such as a
sprain, broken limb, or the flu- generally would not be covered.
The second part of the definition protecting individuals with a record of a disability
would cover, for example, a person who has recovered from cancer or mental illness.
The third part of the definition protects individuals who are regarded as having
a substantially limiting impairment, even though they may not have such an impairment.
For example, this provision would protect a qualified individual with a severe
facial disfigurement from being denied employment because an employer feared the
"negative reactions" of customers or co-workers.
Who Is A Qualified Individual With A Disability?
ANSWER: A "qualified individual with a disability" is
a person who meets legitimate skill, experience, education, or other requirements of
an employment position that he or she holds or seeks, and who can perform the
essential functions of the position with or without reasonable accommodation.
Requiring the ability to perform "essential" functions assures that an individual with
a disability will not be considered unqualified simply because of inability to
perform marginal or incidental job functions. If the individual is qualified to
perform essential job functions except for limitations caused by a disability, the
employer must consider whether the individual could perform these functions with a
If a written job description has been prepared in advance of advertising or
interviewing applicants for a job, this will be considered as evidence, although
not conclusive evidence, of the essential functions of the job.
Does An employer Have To Give
Preference To A qualified Applicant With A Disability Over Other Applicants?
ANSWER: No. An employer is free to select the most
qualified applicant available and to make decisions based on reasons unrelated to
a disability. For example, suppose two persons apply for a job as a typist and an
essential function of the job is to type 75 words per minute accurately. One applicant,
an individual with a disability, who is provided with a reasonable accommodation for
a typing test, types 50 words per minute; the other applicant who has no disability
accurately types 75 words per minute. The employer can hire the applicant with the
higher typing speed, if typing speed is needed for successful performance of the job.
When Can An Employer Ask An
Applicant To "Self-Identify" As Having A Disability?
ANSWER: Federal contractors and subcontractors who
are covered by the affirmative action requirements of section 503 of the Rehabilitation
Act of 1973 may invite individuals with disabilities to identify themselves on a
job application form or by other pre-employment inquiry, to satisfy the section
503 affirmative action requirements.
Employers who request such information must observe section 503 requirements regarding
the manner in which such information is requested and used, and the procedures for
maintaining such information as a separate, confidential record, apart from regular
A pre-employment inquiry about a disability is allowed if required by another Federal
law or regulation such as those applicable to disabled veterans and veterans of the
Vietnam era. Pre-employment inquiries about disabilities may be necessary under such
laws to identify applicants or clients with disabilities in order to provide them
with required special services.
What Is A Reasonable Accommodation?
ANSWER: A "reasonable accommodation" is any modification
or adjustment to a job or the work environment that will enable a qualified applicant
or employee with a disability to participate in the application process or to
perform essential job functions.
Reasonable accommodation also includes adjustments to assure that a qualified individual
with a disability has rights and privileges in employment equal to those of employees
What Are Some Of The Accommodations Applicants And
Employees May Need?
ANSWER: Examples of reasonable accommodation include:
Reasonable accommodation also may include reassigning a current employee to a vacant
position for which the individual is qualified, if the person is unable to do the original
job because of a disability even with an accommodation. However, there is no obligation
to find a position for an applicant who is not qualified for the position sought.
Employers aren't required to lower quality or quantity standards as an accommodation,
or provide personal use items such as glasses or hearing aids.
The decision as to the appropriate accommodation must be based on the particular facts of
each case. In selecting the particular type of reasonable accommodation to provide,
the principal test is whether the accommodation will provide an opportunity for a person
with a disability to achieve the same level of performance and to enjoy benefits equal
to those of an average, similarly situated person without a disability. However,
the accommodation does not have to ensure equal results or provide exactly the same
When Is An employer Obligated To Make A
ANSWER: An employer is only required to accommodate
a "known" disability of a qualified applicant or employee. The requirement generally
will be triggered by a request from an individual with a disability, who frequently
will be able to suggest an appropriate accommodation.
Accommodations must be made on an individual basis, because the nature and extent of
a disabling condition and the requirements of a job will vary in each case.
If the individual doesn't request an accommodation, the employer isn't obligated to
provide one, except where an individual's known disability impairs his/her ability to
know of, or effectively communicate a need for, an accommodation that is obvious to
If a person with a disability requests, but cannot suggest, an appropriate accommodation,
the employer and the individual should work together to identify one. There are also
many public and private resources that can provide assistance without cost.
What Are The Limitations On The Obligation To Make A
ANSWER: The individual with a disability requiring
the accommodation must be otherwise qualified, and the employer must know of the
disability. In addition, an employer isn't required to make an accommodation if it
would impose an "undue hardship" on the operation of the employer's business.
"Undue hardship" is defined as an "action requiring significant difficulty or
expense" when considered in light of a number of factors. These factors weigh the
nature and cost of the accommodation in relation to the size, resources, nature, and
structure of the employer's operation. Undue hardship is determined on a case-by-case
Where the facility making the accommodation is part of a larger entity, the structure
and overall resources of the larger organization would be considered, as well as the
financial and administrative relationship of the facility to the larger organization.
In general, a larger employer with greater resources would be expected to make
accommodations requiring greater effort or expense than would be required of a
smaller employer with fewer resources.
If a particular accommodation would be an undue hardship, the employer must try to
identify another accommodation that will not pose such a hardship. Also, if the cost
of an accommodation would impose an undue hardship on the employer, the individual
with a disability should be given the option of paying that portion of the cost that
would constitute an undue hardship or providing the accommodation.
Must An Employer Modify Existing Facilities To Make
ANSWER: The employer's obligation under Title I is
to provide access for an individual applicant to participate in the job application
process, and for an individual employee with a disability to perform the essential
functions of his/her job, including access to the:
- Work site
- Needed equipment
- All facilities used by employees
For example, if an employee lounge is located in a place inaccessible to an employee
using a wheelchair, the lounge might be modified or relocated, or comparable facilities
might be provided in a location that would enable the individual to take a break
with co-workers. The employer must provide such access unless it would cause an
Under Title I, an employer isn't required to make an existing facilities accessible until
a particular applicant or employee with a particular disability needs an accommodation,
and then the modifications should meet that individual's work needs. However, employers
should consider initiating changes that will provide general accessibility, particularly
for job applicants, since it is likely that people with disabilities will be applying
for jobs. The employer doesn't have to make changes to provide access in places or
facilities that won't be used by a disabled individual for employment-related activities
Can An Employer Attain
Existing Production/Performance Standards For An employee with A Disability?
ANSWER: An employer can hold employees with
disabilities to the same standards of production/performance as other similarly
situated employees without disabilities for performing essential job functions,
with or without reasonable accommodation. An employer also can hold employees
with disabilities to the same standards of production/performance as other employees
regarding marginal functions, unless the disability affects the person's ability to
perform those marginal functions. If the ability to perform marginal functions is
affected by the disability, the employer must provide some type of reasonable
accommodation, such as job restructuring but may not exclude an individual with a
disability who is satisfactorily performing job-essential functions.
Can An Employer Consider Health And Safety When
Deciding Whether To Hire An Applicant or Retain An Employee With A Disability?
ANSWER: Yes. The ADA permits employers to
establish qualification standards that will exclude individuals who pose a direct
threat - for example, a significant risk of substantial harm - to the health or
safety of the individual or of others, if that risk can't be eliminated or reduced
below the level of a direct threat by reasonable accommodation.
But an employer may not simply assume that a threat exists. The employer must establish
through objective, medically supportable methods that there is significant risk
that substantial harm could occur in the workplace. By requiring employers to
make individualized judgments based on reliable medical or other objective evidence
rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes,
the ADA recognizes the need to balance the interests of people with disabilities against
the legitimate interests of employers in maintaining a safe workplace
Are Applicants or Employees Who Are Currently
Illegally Using Drugs Covered By The ADA?
ANSWER: No. Individuals who currently engage in the
illegal use of drugs are specifically excluded from the definition of a "qualified
individual with a disability" protected by the ADA when the employer takes action on
the basis of their drug use.
Is Testing For The Illegal Use of Drugs Permissible Under
ANSWER: Yes. A test for the illegal use of drugs is
not considered a medical examination under the ADA. Employers may conduct such testing
of applicants or employees and make employment decisions based on the results. The ADA
doesn't encourage, prohibit or authorize drug tests.
If the results of a drug test reveal the presence of a lawfully prescribed drug or
other medical information, such information must be treated as a confidential medical
Are Alcoholics Covered By The ADA?
ANSWER: Yes. While a current illegal user of drugs is
not protected by the ADA if an employer acts on the basis of such use, a person who
currently uses alcohol is not automatically denied protection.
An alcoholic is a person with a disability and is protected by the ADA if he or she
is qualified to perform the essential functions of the job. An employer may be required
to provide an accommodation to an alcoholic.
However, an employer can discipline, discharge or deny employment to an alcoholic whose
use of alcohol adversely affects job performance or conduct. An employer may also
prohibit the use of alcohol in the workplace, and can require that employees not be
under the influence of alcohol.