The Americans with Disabilities Act (ADA) was signed into law July 26, 1990, by President George H. W. Bush. The Act was the culmination of years of work.
The National Council on the Handicapped (now the National Council on Disability, or NCD), issued a report, Toward Independence, in 1986. The report outlined, in part, challenges to employment faced by persons with a disability. It made recommendations that a new law be enacted, to protect their rights and raise awareness.
The ADA was not the first law enacted to assist people with disabilities. Section 504 of the 1973 Rehabilitation Act designated disability as a minority, and therefore protected class, for the first time in U.S. history. However, those protections did little to advance the cause of the community in the workplace.
In 1991, the ADA outlined specific requirements and regulations with regard to employment practices: in 1992 these were applicable to employers with more than 25 staff members.
In 1993, the Act lowered that number to employers with 15 or more full-time or full-time equivalent staff members. The ADA faced many challenges from business along its path.
ADA finds resistance with cases brought before the Supreme Court
Following passage of the ADA, many people filed lawsuits making claims against their employers. Courts across the country were inconsistent in their findings. Although the language of the law was specific, there was much room for interpretation.
By 1999, 3 cases went before the Supreme Court. The purpose of those was to adjudicate whether lower courts, whose findings significantly limited the interpretation of the ADA, were just. The Court provided opinions for ‘The Sutton Trilogy,’ as these cases came to be known, upholding the lower court’s decisions.
The Supreme Court‘s majority opinion stated persons suffering from a surmountable, correctable condition were not disabled. A person with poor eyesight could, in their opinion, be disqualified from becoming a pilot.
One of the cases, brought against United Airlines, claimed 20/20 vision was a qualification for employment. A plaintiff held they were discriminated against even though glasses or contact lenses corrected the issue.
Vision correction, the Court held, eliminated the plaintiff’s rights to claim a disability. Corrective measures, like glasses or taking medicine for diabetes or hypertension, excluded the person’s right to an accommodation under the law. They posited the corrective measures meant they were not disabled under the ADA.
The Court felt only those with the most severe and severely limiting impairments should be considered disabled. That was in order to keep from ‘diluting’ membership to this minority class.
Congress, advocacy groups, and the public disagreed. Almost 10 years after Sutton, an amendment to the ADA clarified language in the law to align it with the legislative intent of the original Act.
What is the ADA Amendments Act (ADAAA)?
President George W. Bush signed the ADA Amendments Act (ADAAA) into law in 2008. The amendment aimed to counteract the Supreme Court’s narrow interpretation of what a disability is and provide wider protection from discrimination for U.S. workers.
The ADAAA redefined the terms ‘disability.’ ‘major life activities,’ and ‘being regarded as having such an impairment.’ These clarifications continue to dictate how we interpret the rights of workers and the responsibilities of employers with regard to discrimination.
The refinements brought under the ADAAA gave broader access to workers to request an accommodation and assert their rights under the law. It gave businesses consistent, understandable guidance on what constitutes a disability, along with what their responsibilities are for compliance.
What does the ADA require of employers today?
The overall language of the ADA is relatively simple: the meaning behind the language more complex. Understanding what both the general and specific requirements are is critical to compliance. Here are the basics and what they mean:
The ADA prohibits employment discrimination against qualified individuals with a disability who can perform the essential functions of a job with or without a reasonable accommodation that does not pose an undue hardship on the employer.
Let’s explore each of these terms in bold in more depth.
Discrimination in employment is prohibited in every aspect of employment, from recruitment and selection through separation. Discrimination is prohibited against applicants as well as employees.
Harassment is another form of discrimination.
All terms and conditions of employment must be equitable. The ADA clarifies no person with a disability should be subject to any action or behavior those without a disability are not.
Harassment is another form of discrimination. People cannot demean or exclude a person with a disability on the basis of their status.
Any actions that negatively impact a person with a disability — that would not similarly impact someone without — are prohibited under the ADA.
A qualified individual is an applicant or employee who meets the necessary qualifications for the position. A person who does not meet the requirements for a vacancy, promotion, or transfer does not require consideration.
However, qualifications must be legitimate. They must be demonstrably needed to perform the functions of the position effectively.
Qualifications such as degree requirements, certifications, and licensure that are a business necessity are considered legitimate.
Other qualifications, including hard skills like computer literacy, years’ experience, etc., may also be used in candidate or employee selection. If a person with a disability meets the minimum qualifications for a position, promotion, or transfer, they must receive equal consideration, regardless of their disability.
A disability is a physical or mental impairment that substantially limits 1 or more major life activities. A person has protected status under the ADA if they have a record (or history) of such an impairment. This is also the case if people regard or believe them to have such an impairment.
The ADA does not have exhaustive lists of disabilities that the Act covers. Employers should review on a case-by-case basis.
Some of the most commonly recognized disabilities include visual, speech, or hearing impairments. The Act also covers the use of a wheelchair or prosthetics.
Medical conditions that include diseases like multiple sclerosis, cerebral palsy, cancer, diabetes, and others, are considered a disability, even if they are well-controlled with medication or in remission.
Mental and developmental health issues, including cognitive or mental health disorders (sometimes referred to as invisible disabilities), are also covered under the ADA.
A person who someone perceives to have a disability is covered under the ADA, as well. Even if they have no physical or mental condition, if an employer or colleagues believe (and/or act on that belief) in a negative way, the law protects the employee or candidate.
An example of this may be believing a thin person has cancer or an eating disorder. They may have no such condition, but may be treated differently than their colleagues as a result of that belief.
Many employers are surprised to note some forms of addiction are covered under the ADA. Alcoholism is considered a disability under the law.
In some instances, drug addiction is also covered, provided the employee is no longer using the drug and is or has completed rehabilitation. This includes illegal drugs as well as abuse or fraudulent use of prescribed medications.
A qualifying disability must substantially limit 1 or more major life activities
To qualify, a disability must substantially limit 1 or more major life activities. The Act does not specify what is considered a substantial limit overall, but some guidance is provided.
A blind person, for example, is substantially limited in their ability to see. Determining what is a substantial limit must be considered on a case-by-case basis.
Employers are required to ignore mitigating efforts, for example, when determining eligibility for protection under the ADA.
A person with asthma, hypertension, or diabetes, for example, has protection even if their condition is well-controlled with medication. Without medication, there would be a substantial limit on major life activities. Penalizing workers for attending to their medical needs is not the intent of the law.
A condition may be episodic. A person may have periodic seizures or flare-ups of a medical condition like MS. These may not be consistent — they may even be rare — but are considered a substantial limit of major life activities.
A condition may be temporary: possibly the result of an accident or injury. While the impairment may not be permanent, if its duration is long enough, the law may consider it a disability.
What qualifies as major life activities?
To be covered under the law, a disability must substantially limit 1 or more ‘major life activities.’ These can include every aspect of physical and mental being: seeing, hearing, walking, caring for oneself, performing manual tasks, learning, reading, etc.
The ADA does not have extensive lists of major life activities. Employers should consider each request on a case-by-case basis.
To be covered under the law, a disability must substantially limit 1 or more ‘major life activities.’
In general, major life activities include virtually every aspect of physical and mental health. Added to the ADA under the 2008 Amendment, were ‘major bodily functions’ in addition to major life activities. These include functionality of immune systems, organs (reproductive; digestive; neurological; respiratory;); cardiovascular; musculoskeletal systems, and other functions.
When a worker or candidate is limited in 1 or more of these major life activities or functions, they enjoy protected status under the ADA.
Next, the employee or candidate must be able to perform the essential functions of the position with or without an accommodation. Clearly delineating essential functions of every position is key to compliance.
The essential functions of a position are the duties and responsibilities necessary for performance and productivity. These are the main tasks of the role.
If the employee did not perform these functions, they could cause harm to the business, the employee, or others. Job descriptions should specify which functions are essential to the role and which are secondary or additional.
For many businesses, boilerplate job descriptions include ‘Additional tasks as needed or required.’ While this is an important inclusion, the Act generally does not consider ‘additional tasks’ to be essential functions.
A customer service representative, for example, may spend the majority of their time on the phone or online providing help and assistance. The role may also include occasionally filing reports in file cabinets.
A person in a wheelchair may have difficulty performing the filing task. This secondary duty may not be an essential function of the position.
In other cases, secondary tasks are as important to the role as main duties. Employers must review accommodation requests on a case-by-case basis. They must determine which functions are essential: which could cause damage or harm if not performed, and which are non-essential.
With or without a reasonable accommodation
The next step in compliance is making reasonable accommodations for persons with a disability. A reasonable accommodation must be ‘reasonable.’
It does not include the most expensive or complex solution to a problem. It does include solutions that people can easily implement and are effective.
Most employers find reasonable accommodations inexpensive. A few blocks to raise a desk high enough for wheelchair access; software that helps persons with visual impairments better see their screens. These are typically low-cost, easily accessible solutions that people would consider reasonable.
In addition to physical changes employers can make on the job site, there are other ways to reasonably accommodate a candidate or employee with a disability.
In 2020, the Job Accommodation Network (JAN) of the Department of Labor’s Office of Disability Employment Policy reported 56% of workplace accommodations cost absolutely nothing: the remainder typically cost about $500. That same survey found 75% of employers found accommodations very or extremely effective.
In addition to physical changes employers can make on the job site, there are other ways to reasonably accommodate a candidate or employee with a disability. Remote work is an excellent option for people with limited mobility or access to transportation.
Other accommodations may be as easy as reassigning tasks. The example of the customer service representative who would have difficulty filing could be an easy accommodation.
The company could assign filing to another worker. Or, the worker could have designated file cabinets that are lower, or more accessible, for their work product.
The final designation of the ADA refers to undue hardships. ‘Undue hardship’ is a request for an accommodation that requires significant difficulty or expense with regard to the size, resources, and nature of the business.
Undue hardships are situational. Reassigning small, non-essential tasks to another worker would generally not pose an undue hardship.
For a small company, with no one else to reassign the work, the hardship may be insurmountable. An expensive piece of equipment may assist a worker with a vision impairment. For a small organization, the price may be prohibitive.
Undue hardships are situational.
For a larger company, the cost would not. A case-by-case analysis is required to determine whether the accommodation is reasonable or poses an undue hardship.
Generally, it is not up to the applicant or employee to prove a request is reasonable and doesn’t pose an undue hardship. It’s up to the employers to show if it does.
Companies must be able to verify why a request for an accommodation was denied. If the claim is an undue hardship, it must be objective and provable.
Can employers offer unsolicited accommodations?
Employers are not required to offer or suggest an accommodation. In fact, they should not ask an employee or applicant if they need or want 1.
They should, rather, wait for a request for an accommodation and consider each on a case-by-case basis. Unless and until the applicant or employee requests an accommodation, employers should not assume a disability or a need to accommodate.
Instead, employers should ask every candidate if they can perform the essential functions of the position with or without an accommodation. If an existing employee reports a medical or health-related disability, they can make the same request.
If asked for an accommodation, employers then work with applicants or staff members to find solutions. The Job Accommodation Network (JAN), has a Searchable Online Accommodation Resource (SOAR) system that offers tried-and-true solutions. For businesses requiring more help, they offer expert assistance.
In most cases, the JAN can help business find a resource that works for the company and the worker. If they cannot, the organization has a verifiable response for declining the request for an accommodation.
Why is the ADA important?
In the 30+ years of the ADA, the rate of unemployment for persons with a disability remains disproportionately high. In 2021, the Bureau of Labor Statistics reports, 19.1% of persons with a disability were employed: 17.9% in 2020.
For persons without a disability in those same time periods, 63.7% were employed in 2021: 61.8% in 2020. It’s possible a wider understanding of the law, and how easily business can be proactive as well as comply, could help increase participation in the workforce.
Opening the door to diverse candidates and employees is critical for business. At less than 1/3 the employment participation rate, persons with a disability represent a vast talent pool for employers.
More than 35% of people with a disability have a high school diploma, some college, or an associate’s degree. Another 25% have a bachelor’s or higher degree. Employers who disregard these candidates do so at their own expense.
As more businesses strive for diversity and higher representation in their organizations, this cohort is important to include. In addition to compliance and social responsibility, there are good business reasons to expand your talent pool.
The importance of employing people with disabilities
In 2018 Accenture partnered with the American Association of People with Disabilities and Disability:IN. They found businesses that actively seek to employ people with disabilities see 28% higher revenue than businesses that don’t. Net income was double and profit margins were 30% higher for these organizations.
Another study found workers with disabilities have an 85% retention rate after 1 year. In today’s volatile applicant market, that high percentage is astonishing. Pizza Hut found the turnover rate for their employees with disabilities was 20% compared to coworkers without disabilities at 150%.
In addition to retention and loyalty, there are direct financial resources available for business to expand their workforce.
Small business hiring and tax credits and incentives help businesses hire and accommodate people with disabilities. Some credits even support efforts to make physical spaces more accessible for employees (and customers) with a disability.
How can business comply with the ADA?
Knowledge is key to understanding your responsibilities under the ADA as well as the rights of employees and candidates.
Beyond compliance, creative thinking can start your company in a proactive model. Look for groups in the community that can help find opportunities and pathways to employment for people with disabilities.
When employees or applicants request an accommodation, start with an optimistic attitude. Look for solutions that will work for the business and the employee (or potential employee).
In many cases, candidates have solutions that have worked in the past. If 1 solution doesn’t work, look for alternatives. You may find you’ll open a door to more possibilities and more potential candidates.
The ADA seems complex, but assistance is readily available. Advocacy and support groups in your area that work within the community have resources at the ready.
The JAN is also available for general questions as well as in-depth solutions. Compliance with the ADA begins with communication — with existing staff, applicants, and the resources available near you and nationwide.