Issue of the Month

March 2001, ADA Discrimination Charges: How to Investigate

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) prohibits discrimination against disabled individuals in employment, public accommodations and in public transportation. The employment provisions of the ADA prohibit employers from discriminating against qualified employees with disabilities in all aspects of employment practices, including application procedures, hiring, compensation, training, advancement and discharge. The law seeks to eliminate any artificial barriers for the employment and promotion of the disabled for those perceived to be disabled. The law also seeks to encourage qualifying the disabled for employment and promotion versus disqualifying them in these areas. The ADA protects employees who work for an employer that has more than 15 employees. (Most states and some large municipalities have laws covering disabilities and discrimination; you should check to determine if these laws are similar to or different from the federal law.)

What is a disability? The definition of "disability" is divided into three parts. An individual is considered to have a "disability" if that individual either:

1. Has a physical or mental impairment which substantially limits one or more of that person's major life activities; or
   
2. Has a record of such an impairment; or
   
3. Is regarded by the covered entity as having such an impairment.
   

Most cases involve the first paragraph. Your investigation starts with asking and answering the following questions. Remember, do not assume anything; avoid making judgments about an employee's claim; remain open-minded; investigate the claim thoroughly - consult a medical dictionary when necessary as well as the internet, which has extensive medical research on most issues - this will help you understand the employee's claim. Now for the questions:

• Is the employee's claimed limitation mental or physical?
  
• Is the claimed limitation substantial (does it cause restrictions that are beyond those of an average person?)
  
• What major life activities are limited or affected? In order for a physical or mental impairment to be a disability, it must substantially limit a major life activity. "Major life activities" are defined as "functions" such as: caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and "working."
  
• What is the employee unable to do?
  
• Can they perform their job? Be specific as to what job duties and responsibilities they cannot perform and how that relates to their job. Get the employee to write down their limitation and how it affects their ability to perform the job.
  
• What medical proof does the employee have? Get a doctor's statement and, if necessary, have a conversation with the doctor asking specific questions about the medical limitations and the doctor's knowledge of the job that the employee performs.
  
• How long will the employee's restrictions continue (one to two weeks or permanent; short-term disabilities are not covered under the ADA)?
  
• What non-work related activities has the employee been involved in? Have them explain their activities in detail; how do these activities differ from the job responsibilities and how are they the same?
  
• Are there any medicines to overcome the restrictions or are there other devices that would allow the employee to perform the job?
  
• Can the employee's limitations be accommodated so that the employee can perform the essential functions of their job?
  

An employer is required to make reasonable accommodations available to employees. This process should be interactive. Examples of accommodations include the following:

• making facilities accessible and usable
  
• job restructuring
  
• reassigning an individual to a vacant position
  
• instituting flexible or part-time work schedules
  
• modifying leave or attendance policies
  

The employer can meet this requirement by taking four steps:

1. Assess all jobs to determine the essential and nonessential job functions;
   
2. Meet with the disabled employee to ascertain whether or not he/she would have difficulty performing one or more of the position's essential job functions;
   
3. Review all reasonable accommodations available, including any accommodation suggested by the individual; and
   
4. Decide which accommodation, if any, is appropriate (i.e., feasible or workable) for the situation.
   

Be creative in making changes. Your investigation does not bind you to a change; it is merely a process so you can study your options. Is the employee requesting an accommodation that will cause you an undue hardship? Be careful here because to prove this, significant evidence is necessary. Also, be sure to answer the following question: If the employee continues in their employment, will they create a direct threat to the safety and health of others?

It is important that an employer keep accurate records of its efforts in this regard.

The Investigation - A Practical Application

An employee who is an assistant manager develops Morton's Neuroma (an irritation and inflammation to the second and third toes) on her right foot. Standing for extended periods becomes painful. She gives her store manager a doctor's slip that states: "Employee should avoid extended standing." Review the questions listed above. If the employee can stand for 8 hours a day and 40 hours per week, is she disabled under the ADA? The simple answer is probably not. Why? Because the limitation is not substantial and, by comparison to most other people, she is considered "average." You need to understand the specific medical restrictions. Ask all the relevant questions: Can she wear tennis shoes and will that help? Can she take any medication for the pain? Can she sit during working hours and does her job require her to stand the entire 8 hours? Can she use a cane, etc.? Make sure the doctor knows the job she performs and find out whether he did an independent evaluation of the pain and her ability to stand. Find out if it was merely the employee who created the restriction. Is the pain episodic? What can the employee do during the work day to get her job done – does she take her appropriate breaks, etc. This process may appear to be time consuming but once you've done it one or two times it will become standard operating procedure.

Provided below is a checklist that includes an audit to determine your compliance.

Compliance Audit Checklist

This Compliance Audit Checklist is designed for use by an employer to assess compliance of its current employment policies and practices with the requirements of law and to make any necessary corrections.

• Are disabled employees offered reasonable accommodations before excluding them from employment?
  
• Are physical examinations required for applicants for employment? If so, are they required after an offer of employment has been made?
  
• Does the Company use any test (physical, written or verbal) in the application selection process?
  
• Do advertisements indicate any preference, limitation or specification as to race, religion, age, sex, national origin or physical condition?
  
• Does the Company have a policy for accommodating employees with psychiatric disabilities?
  
• Do any of the job descriptions contain criteria relating to age, appearance, disability or other potentially discriminating basis?
  
• Does the Company have a light duty program? If yes, has it been reviewed in light of the Americans With Disabilities Act?
  
• Are all employees treated the same with regard to requests for leaves of absence?
  
• Does the Company have a policy on approving job transfers as a reasonable accommodation?
  

If you have any questions, email educational services, or call (414) 423-1330.