PRESENTED B Y THE IOWA CIVIL RIGHTS COMMISSION

Enactment and effective date The ADA is a civil rights law that was enacted on July 26, 1990.

ADA Fact In 1990, Congress estimated 43 million Americans had one or more physical or mental disabilities. In the mid-90s that figure was revised to 49 million Americans. Today the estimate is in excess of 53 million

ADA Amendments Act of 2008 In 2008 the ADA was amended to get back to its original intent of a “broad scope of protection.” ADA Amendments Act makes it easier for a person seeking protection under the ADA to establish that he/she has a disability within the meaning of the statute

The Americans with Disabilities Act Title I: Employment Title II: Public Services Title III: Public Accommodations Title IV: Telecommunications Title V: Miscellaneous

Title I - Employment Title I of the ADA prohibits discrimination against persons with disabilities in employment by businesses having 15 or more employees, or by State and local governments. It also applies to employment agencies and to labor organizations.

ADA Fact – Iowa  Iowa prohibits discrimination in employment by businesses having 4 or more employees, not 15

Scope of ADA In employment, the ADA prohibits discrimination against qualified individuals with disabilities in public and private sector employment. This includes a requirement that those employers covered under the Act make “reasonable accommodations.”

Your knowledge of the ADA Quick Quiz 5 Questions

ADA Quiz – Multiple Choice What percentage of working-age individuals with disabilities are unemployed? A. 25% B. 3% C. 50% D. 67%

Answer: D 67% of working-age individuals with disabilities are unemployed.

Question #2 If you live to the age of 70, the chance of you having a disability is: A. 12% B.28% C.55% D.82%

Answer: D There is an 82% chance of having a disability if you live to age 70.

Question #3 Approximately 88% of accommodations for people with disabilities will cost: A. Under $1,000 B. Between $1,000 - $1,999 C. Between $2,000 - $5,000 D. More than business can afford

Answer: A 88% of accommodations for people with disabilities will cost under $1,000

Reasonable Accommodations Average Cost of Job Accommodations:  31% of all accommodations suggested at no cost  19% cost between $1 and $50  19% cost between $50 and $500  19% cost between $500 and $1000  11% cost between $1000 and $5000  >1% cost more than $5000 Source: Job Accommodation Network Survey

Question #4 – True/False The ADA is an affirmative action law for individuals with disabilities.

Answer: False The ADA provides equal access to the employment process, but does not require employers to proactively hire persons with disabilities.

Question 5: True or False The employment provisions of the ADA are applicable to entities, organizations and private businesses that employ 15 or more employees (and to all Title II entities* regardless of size). *state and local governments

Answer: True All businesses with 15 or more employees are covered by the ADA. State laws may cover smaller businesses as well.

Who is considered a person with disability? The ADA defines a person with a disability using a 3-prong approach.

First Prong: Person with a physical or mental impairment that substantially limits one or more major life activities

Physical Impairment Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine (This list is non-exhaustive)

Mental Impairment Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. (This list is non-exhaustive)

Substantially Limits Means the major life activity is restricted as to the conditions, manner or duration under which it can be performed in comparison to most people. Previously the standard was “significantly restricted,” but the ADAAA redefines “substantially limits” as “materially restricts.” This is a new term that is not otherwise defined in the legislation.

Substantially Limits (con’t)  Under the Amendments Act, the term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by courts.  An impairment does not need to prevent or significantly restrict a major life activity to be considered “substantially limiting.”

Substantially limits (con’t)  The term “substantially limits” is to be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.  As was true prior to the Amendments Act, the determination of whether an impairment substantially limits a major life activity requires an individualized assessment.

Combination of Impairments An individual may have two or more impairments, neither of which alone constitute a disability, but taken together may be considered disabling.

Three factors to consider  The nature and severity of the condition;  How long it will last or is expected to last; and  Its permanent or long term impact, or expected impact.

Temporary Impairments May or may not be disabilities. The question is answered by looking at the extent, duration, and impact of the impairment.

Major Life Activities Include: Caring for oneself Performing manual tasks Walking Seeing Hearing Speaking Standing Eating Reading Breathing Learning Working Concentrating Communicating Thinking Learning Working Lifting Bending

Bodily Functions The ADA Amendments Act has clarified that major life activities is expanded to include Bodily Functions.

Major Body Functions include: Functions of the immune system Normal cell growth Digestive function Bowel function Bladder function Brain function Functions of the respiratory system Circulatory function Neurological function Endocrine function Reproductive function

Mitigating Measures

What are they? Mitigating measures are measures that eliminate or reduce the symptoms or impact of an impairment. Examples include: medication, medical equipment & devices, prosthetic limbs, hearing aids, mobility devices, assistive technology, low vision devices (devices that magnify a visual image).

Change of Rules The Amendments Act of 2008 changed the rules on mitigating measures. Substantial limitation is now assessed without regard to mitigating measures other than contacts or corrective lenses

Second Prong: A person with a record of having a disability

For Example: A history of mental illness Heart disease Cancer Muscular dystrophy Epilepsy Multiple sclerosis

Episodic or in Remission  Congress stated in the Amendments Act that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

Third Prong: “Regarded as” having an impairment An individual meets the requirement of being regarded as having an impairment if the individual establishes that he or she has been subjected to a prohibited action because of an actual or perceived impairment that is not both “transitory and minor” – regardless of whether or not the impairment limits or is perceived to limit a major life activity.

In other words  A person who is not substantially limited but is treated as such  A person whose substantial limitation is only the result of the attitudes of others  Someone who has no impairment – but is treated or perceived as having an impairment that is not transitory and minor.

Exclusions A person who currently illegally uses drugs is not protected by the ADA when the covered entity acts on the basis of such use alone. However, an individual who is engaged in or has completed drug rehabilitation and is no longer using drugs is protected under the ADA.

Some Important Distinctions The use of a drug must be illegal to be exempt from the definition of disability not the substance itself. Addiction is covered under the definition of disability but not current illegal use. If a person was addicted in the past or is perceived as addicted they would be covered. Casual users in the past are not covered.

What about alcoholism?  People who abuse alcohol are considered disabled even if they are currently using. A person who is an alcoholic is considered a person with a disability under the ADA.

Other Exclusions  Homosexuality and Bisexuality;  Transvestitism, transsexuals, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavioral disorders;  Compulsive gambling, kleptomania, or pyromania; or  Psychoactive substance use disorders resulting from current illegal use of drugs

Association The ADA also protects anyone who associates with someone who has a disability as defined above. An entity may not discriminate against an individual or entities because of their relationship with a person with a disability

Retaliation or Coercion Retaliation or coercion is prohibited under the ADA

What employment issues are covered?  Recruitment  Pay  Hiring  Promotion  Job Assignment  Training  Leave  Lay-off  Benefits

Who is a Qualified Individual? Individual who satisfies the required work, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation can perform the essential functions of such position.

Steps to Determine Whether an Individual is Qualified  Determine if the individual meets the necessary prerequisites for the job; and  Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation

Essential Functions The ADA requires that the employer focus on the essential functions of a job to determine whether a person with a disability is qualified.

Essential Job Functions These are the fundamental job duties of the employment position. They do not include marginal functions.

Determining the Essential Job Functions Focus on the purpose of the function and the result to be accomplished rather than on the manner in which the function presently is performed

What to look for:  Employer’s judgment as to what is essential  Written job description  Amount of time spent on the task  Terms of a bargaining agreement  Consequences of not performing the task  Work experience of current or former incumbents

Essential Job Functions – Questions to Ask  Are other employees in the position actually required to perform the function?  Would removing that function fundamentally change the job?  Does the position exist to perform the function?

Questions – (Con’t)  What is the number of other employees available to perform the function, or among whom the function can be distributed?  What is the degree of expertise or skill required to perform the function

What about reasonable accommodations?  Employers must make reasonable accommodations to known physical or mental limitations of a qualified applicant or employee with a disability unless the employer can demonstrate that the accommodation would be an undue hardship

Definition of Reasonable Accommodation Any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity.

Required in Three Areas 1. Ensure equal opportunity in application process; 2. Enable qualified individual with a disability to perform the essential functions of a job; and 3. To enable an employee with a disability to enjoy equal benefits and privileges of employment.

ALSO: Social activities; or any other term, privilege or condition of employment.

What are some forms of reasonable accommodation?  Job restructuring  Modifying work schedules  Making facilities accessible  Acquiring or modifying equipment or devices  Hiring readers, interpreters and assistants  Reassignment to a vacant position

ADA FACT Personal items are generally not required as forms of reasonable accommodation

Let’s talk about undue hardship  It is the responsibility of the employer to provide a reasonable accommodation unless it would be an undue hardship.  Undue hardship is defined as an action requiring significant difficulty or expense, extensive, substantial disruption or something that would fundamentally alter the nature of employment.

Do I have to hire an applicant with a disability even if they are not qualified? No. A qualified individual with a disability is one who satisfies the requisite skill, experience, education, and other job-related requirements of the position and can perform the essential functions of the job with or without reasonable accommodation.

Recruitment and Hiring ADA does not require employers to undertake special activities to recruit people with disabilities However, recruitment activities that tend to “screen” out individuals with disabilities may violate the ADA

Recruitment and Hiring Pre-offer inquiries about a disability, or about the nature of severity of a disability on an application, forms in a job interview, or in background or reference checks are a problem under the ADA.

Pre-Employment Testing ADA has two requirements in relation to tests 1. If a test screens out or tends to screen out an individual with a disability or a class of such individuals on the basis of a disability, it must be job-related and consistent with a business necessity; and 2.There must be accommodations in administering testing.

Medical Examinations An employer may not make medical inquires or conduct a medical examination until after a job offer has been made. A job offer may be conditioned on the results of a medical exam or inquiry only if it is required for all entering employees in similar positions.

What about Safety Issues? An employer may require that an individual not pose a direct threat to the health and safety of others.

Conditional Job Offer If a conditional offer is withdrawn, employer must show: 1.Reasons for the exclusion are job-related and consistent with business necessity, or that the person is being excluded to avoid a “direct threat;” and that 2. No reasonable accommodation was available that would enable this person to perform the essential job functions without significant risk to health or safety, or that such an accommodation would cause undue hardship.

Post-employment Medical Exams Must be job-related and justified by business necessity. May be conducted when there is evidence of a job performance or safety problem. May conduct to determine “fitness” to perform a particular job. May perform voluntary exams that are part of employee health programs.

Results of Medical Exams  All information gathered must be collected and maintained on separate forms, in separate medical files and must be treated as a confidential medical record. Medical information should NOT be put in the employee’s personnel file.

Conclusion An employer or other covered entity may not limit, segregate or classify an individual with a disability, on the basis of the disability, in a manner that adversely affects the individual’s employment.

ADA Technical Assistance Access Board Technical Assistance Department of Justice Technical Assistance Equal Employment Opportunity Commission Technical Assistance Publications

Iowa Civil Rights Commission Grimes State Office Building 400 E. 14 th Street Des Moines, Iowa FAX

Employer Rights & Responsibilities Americans With Disabilities Act as Amended (ADAAA) Presented by The Iowa Civil Rights Commission