What is the ADA?
The Americans with Disabilities Act of 1990 (“ADA”) is a federal law that says employers with 15 or more employees cannot discriminate against people because of their disabilities. In 2008, lawmakers passed the ADA Amendments (“ADAAA”) to clear up some legal confusion about the ADA.
The intent of the ADA and ADAAA is for disabled employees to get and keep a job they are qualified to do.
Under the ADA and the ADAAA, an employer cannot:
• Fire or refuse to hire a qualified individual with a disability because of the disability.
• Fail to promote a qualified individual with a disability because of the disability.
• Apply discriminatory terms or conditions to disabled individuals regarding wages, benefits, or other terms of employment.
• Limit, segregate, or classify disabled employees.
• Exclude disabled employees from regular programs and activities that are available to non-disabled employees.
• Refuse to provide reasonable accommodations for disabled employees.
• Allow harassment because of an employee’s disability
• Discriminate against a job candidate or employee because of their “association” with a disabled person.
What is a Disability?
The ADA has three different definitions of disability. You only need to meet one of these disability definitions to be protected by the ADA.
1. Having a physical or mental impairment that substantially (Another word for “substantially” is “considerably.”) limits a major life activity is one of the three definitions of disability.
A physical or mental impairment is some type of long-term or permanent health condition. A major life activity is an activity an average person can perform with little or no difficulty.
Not all health conditions are disabilities. The health condition must substantially limit one or major life activities or major bodily functions. Generally, a health condition that lasts for a short time, such as the flu, a cold, or even a sprained or broken bone is not a disability because these health conditions don’t last very long.
But, a health condition that occasionally flares up can also be a protected disability if the health condition would be a substantial limitation if active.
Caring for oneself, performing manual tasks, seeing, and hearing are some examples of major life activities. Normal cell growth (cancer), digestive, bowel, and bladder functions are some examples of major bodily functions.
A person may think they have a disability because of their poor health. But, whether a health conditions is an ADA disability can be difficult. Each health condition must be individually looked at to determine if the health condition is an ADA disability.
If you are employed and do not know if your health condition is an ADA disability, you should speak with your supervisor or the HR department. They should give you a form your treating physician can complete to determine if you have an ADA disability.
2. Having a record of a health condition that substantially limits one of more life activities is a second definition of an ADA disability.
A person who, in the past, was treated for a health condition that was substantially limiting, but is now cured or a person that has a substantially limiting health condition that is in remission is protected by this disability definition. An example of this is cancer. A person’s cancer may be cured or in remission. That person has a protected ADA disability under this definition.
An employer has violated the ADA when using a person’s record of a substantially limiting health condition against the person when making employment decisions.
3. Being regarded as having an ADA disability is the third definition of disability.
If your employer believes you have a health condition that substantially limits one of more life activities, even if you don’t, you may have ADA protection. For example, an employer thinks an employee is always stressed out limiting his ability to think quickly. The employee just looks stressed and can think quickly. Also, the employee has never been seen a doctor for looking stressed.
An employer has violated the ADA when using the employee “looking stressed” against the employee when making an employment decision because the employer believes the employee’s stress is a disability.
Disability Association Discrimination
There is also a fourth way for someone to be protected by the ADA.
Employers cannot discriminate against a job candidate or employee because of their association with a disabled person. For example, if an employer refuses to hire a job candidate because the candidate has a child or spouse with a disability because the disabled dependent would have high group health care costs, that would be disability discrimination against the job candidate.
A disabled candidate or employee is not automatically entitled to job protection. The disabled candidate or employee must be able to perform the duties (the ADA calls this “essential functions”) of the job with or without reasonable accommodation.
A reasonable accommodation may be allowing an employee to change their work hours, provide assistance with heavy lifting, giving work instruction in a different way, or providing a special work space, or any other accommodation that is reasonable and would enable a disabled person to do their job. Reasonable accommodation helps the employee meet the employer’s standards of performance. An employer does not have to lower its performance standards as a reasonable accommodation.
The disabled person must ask for the reasonable accommodation. This is true even if the disability is apparent, such as the employee is in a wheel chair or the employee is blind.
When an employee asks for a reasonable accommodation, the ADA requires the employer to talk with the employee about possible reasonable accommodations. The ADA refers to this as the “interactive process.”
The disabled employee is the person most knowledgeable about what can be done to meet performance standards. Therefore, the disabled employee must actively and honestly participate in this interactive process.
There is a very helpful resource for identifying reasonable accommodations. If the employer and employee cannot identify a reasonable accommodation, they can contact the Job Accommodation Network at www.askjan.org or (800) 526-7234, or (877) 781-9403 (TTY). The Job Accommodation Network is a federally funded project whose sole purpose is workplace accommodation and disability employment issues.
If you have a disability and need a reasonable accommodation to do your job, review your employer’s Anti-discrimination Policy to determine how you request a reasonable accommodation. If your employer does not have an Anti-discrimination Policy or you do not understand how to request a reasonable accommodation after reviewing the policy, speak with your supervisor or the HR department.
What to do if your rights have been violated
If you believe you are the victim of disability discrimination, review your employer’s Anti-discrimination Policy to determine who you should speak to and arrange a meeting with that person. If your employer does not have an Anti-discrimination Policy, find the person or persons responsible for HR. Have a meeting with that person and explain why you feel you have been discriminated against. Give the employer as many specific facts as you have. Listen to the employer’s explanation. If, after speaking with your employer, you still think your employer has discriminated against you because of a disability or has not provide you with a reasonable accommodation, you should contact the Equal Employment Opportunity Commission (EEOC) or the Civil Rights Division at the Arizona Attorney General's Office as soon as possible.
Here is their contact information:
Equal Employment Opportunity Commission
3300 West Central Avenue, Suite 690
Phoenix, AZ 85012
Telephone:(602) 640-5000 or 1-(800) 669-4000 or TTY 1-(800) 669-6820
Arizona Attorney General Civil Rights Division
1275 W. Washington Street
Phoenix, AZ 85007-2926
Telephone: (602) 542-5025
Arizona Civil Rights Division
400 West Congress, Suite 315
Tucson, AZ 85701-1720
Telephone: (520) 628-6504
Arizona Civil Rights Division
1000 Ainsworth Drive
Prescott, AZ 86305-1610
Telephone: (928) 778-1265
You can also file a charge of discrimination on-line at this website by going to azag.gov.
There is a time limit to file a charge. You have 180 days from the date of last incident of disability discrimination file a disability discrimination charge. These charges must be filed with the Civil Rights Division at the Arizona Attorney General's Office.
You have 300 days from the date of the last incident to file a charge with the EEOC.
Federal Agency Employees and Job Candidates for Federal Agencies
There is a much shorter time to file a claim for employees who work for the U.S. government and job candidates who have applies for a U.S. government job. Those people must contact a federal agency EEO counselor within 45 days of the last incident of harassment. The agency that you work in or applies with will provide you with the name and contact information of the EEO counselor.