The Americans with Disabilities Act (ADA) protects applicants and employees from discrimination based on their disability. This doesn't mean that employers have to hire or retain someone who can't do the job, however: The employee must be able to perform the essential functions of the job, with or without a reasonable accommodation. If an someone can't meet the job's basic requirements, even with an accommodation from the employer, the employer is free to fire or not hire the person.
What's a Disability?
The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities. Major life activities are basic activities that the average person can perform with little or no difficulty, including walking, standing, lifting, talking, hearing, learning, and taking care of oneself. Major bodily functions, such as the proper processing of the digestive, endocrine, reproductive, or neurological system, are also included.
In 2008, Congress passed the ADA Amendments Act (ADAAA). One of the primary purposes of the ADAAA was to make clear that Congress intended the term "disability" to be defined broadly, so that more people enjoyed its protections. Congress believed that courts were interpreting "disability" too narrowly. In the ADAAA, Congress stated that the focus in most cases should not be on whether the employee has a disability, but instead on whether the employer met its obligations under the law.
Qualified Individual with a Disability
Of course, not every employee with a disability is suited to every job. The employee must be otherwise qualified for the job; only qualified individuals with disabilities are protected from employment discrimination.
Someone is qualified for a position only if both of the following are true:
- The person must meet the prerequisites for the position. For example, the person must have the necessary educational degrees, licenses, skills, and employment experience. To practice law, for instance, the employee must have a law degree and have passed the Bar exam -- whether or not the employee has a disability.
- The person must be able to perform the essential functions of the position, with or without a reasonable accommodation.
Essential job functions are the fundamental duties of the job. A job duty is an essential function if:
- the reason the job exists is to perform that function (for example, a bus driver drives a bus)
- only a few employees can perform the function, or
- the function is so highly specialized that the employer hires people for the position specifically because of their skill at performing that function.
To determine whether a job duty is an essential function, courts look at:
- written job descriptions
- the employer's opinion
- the amount of time people in that position spend on that duty
- the consequences of giving the job to someone who couldn't perform that function
- the terms of applicable collective bargaining agreements, and
- the work experience of those who have held the job.
A reasonable accommodation is a change to the job or workplace that will enable an employee to do a job despite a disability. For example, an employer might change the height of a desktop to accommodate an employee in a wheelchair, provide voice activated software for an employee with carpal tunnel syndrome, or provide TDD telephone equipment for a worker with a hearing impairment.
An employee's ability to perform the essential functions must be considered in light of reasonable accommodations. For instance, an employer can't refuse to consider an applicant who has dyslexia for a job that requires keyboarding, if the applicant would be able to perform the job's essential functions using special software.
An employer doesn't have to provide an accommodation if it poses an undue hardship: significant difficulty or expense, considering the accommodation's cost, the size and financial resources of the business, the business structure, and the effect the accommodation would have on the business.
Getting Legal Help
If you believe you have been discriminated against because of a disability, you should consider a consultation with an experienced lawyer. An attorney can help you assess your situation and decide how to move forward.