CHAPTER THIRTEEN Disability Discrimination

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Myths About Disability Discrimination 1.A question on an application form about specific disabilities of an applicant is not improper 2.If an employer would have to alter the working environment to accommodate a disabled applicant or employee, that person is not qualified for the position

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Employees with disabilities have many more rights to their jobs than do disabled applicants 4.Individuals with disabilities generally are incapable of performing the jobs for which they apply 5.If someone does not have a disability but others believe she or he does, that person is still not protected against discrimination

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Individuals with disabilities only create liability for employers and are not good, productive employees 7.If an applicant with a disability applies for a job, the employer must hire that applicant 8.HIV status is not a disability under the ADA 9.Only physical disabilities are protected under the ADA

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Employers must give any and all accommodations requested by employees with disabilities 11.If an applicant needs a reasonable accommodation for a pre- employment test, that applicant is not qualified

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved  Americans with Disabilities Act of 1990 prohibits discrimination in employment based on disability  Vocational Rehabilitation Act of 1973 prohibits discrimination based on disability in receipt of benefits under any program receiving Federal funds Statutory Basis

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Disproving Old Barriers  Groups with disabilities not covered under Title VII  Many employers refused to hire disabled applicants  Disabled applicants had to prove themselves far more than those not disabled  Employers should strive to be “disability-blind” and evaluate based on competence

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Regulation  Vocational Rehabilitation Act of 1973 –Applies to government and any firm doing business with government –Section 503 requires affirmative action on the part of federal contractors and agencies –Did not protect private sector employees

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved  Americans with Disabilities Act (ADA) –Became effective in 1992 –Applies Rehabilitation Act standards to most private employers –Protects disabled from three types of barriers  Intentional discrimination  Neutral standards with disparate impact  Discrimination based on barriers that could be overcome with accommodation

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved –Employers must be proactive –To claim discrimination, employee must prove  That he or she is disabled  That he or she is otherwise qualified  That any accommodation required is reasonable  That he or she suffered an adverse employment decision

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved  ADA defines disability as a physical or mental impairment that substantially limits one of more major life activities of an individual; a record of having such an impairment; being regarded as having such an impairment –Mental impairments and contagious diseases may be included –EEOC gives guidelines for “major life activity” and “substantially limits” –Including perception of impairment protects disabled employees from prejudice

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved  Disabled employee must be otherwise qualified for position –Must be able to perform the essential (fundamental) functions of the position –Employee may require and request reasonable accommodation  The removal of unnecessary restrictions or barriers  Does not place undue hardship on employer  Disability harassment is also prohibited under ADA

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Effect on the Actions of Employers  Potential liability of employer based upon tort theory –Employer has a duty to protect employees –Employer must not disclose unnecessary medical information –Employers engage in genetic testing at their own risk

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved Management Considerations  Medical exams permitted only after offer of employment and must be required of all employees in that position  Educate managers to become aware of the needs of the disabled  Internal Revenue Service offers tax credits to employers who hire disabled employees

McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved  Don’t assume physical or intellectual limitations of disabled employee or applicant  Explore all possible reasonable accommodations for otherwise qualified employees or applicants  Document all discussions  Be proactive and flexible  Review application materials and job descriptions to ensure no inappropriate questions or requirements