Home Business The Complicated World of Employment Discrimination (Part IV)
The Complicated World of Employment Discrimination (Part IV)

The Complicated World of Employment Discrimination (Part IV)

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By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material I wrote for APUS classes. It is the fourth article in an eight-part series on employment discrimination law and sound employment practices. In this article, we will look at how “disability” is defined by the Americans with Disabilities Act (ADA) and what this definition means for employers.

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Defining a Disability in Regard to Employment

A question that naturally emerges from the ADA requirements that employers must accommodate disabled individuals is “What constitutes a disability?” The ADA generally defines a “disability” as:

  • A physical or mental impairment that substantially limits one or more major life activities of an individual
  • A record of an impairment
  • Being regarded as having an impairment

Although this definition of a disability sounds fairly clear, how to apply it – as with a lot of legislative language – can be as clear as mud.

Some disabilities might at first glance seem to unquestionably meet the standard of “substantially limiting one or more major life activities,” but a closer examination only brings more questions. For example, the mobility impairments of a quadriplegic are obviously covered, but what if an individual walks with a slight limp or uses a cane?

Similarly, the blind are unambiguously protected by the ADA, but when does a person go from simply having poor eyesight – which would require prescription glasses, for example – to being considered disabled under the ADA? And if an employee is a little “hard of hearing,” is that employee entitled to the same accommodations that would be required for a completely deaf person?

It gets worse. Mobility, sight, and hearing are classic, intuitive examples of disabilities, but what about less established conditions? Are people who suffer from dwarfism – i.e. “little persons” – also covered under the ADA?

What about pervasive, ongoing health issues that most Americans live with? For example, two out of every three people in the United States are considered obese by medical standards. So if obesity limits life activities as it sometimes does, is obesity considered a disability?

The answer to many of these questions is that it depends on the circumstances. However, employers should always err on the side of caution and, when in doubt, assume that a disability exists and act appropriately. More often than not, the cost of accommodation outweighs the risk of litigation over breaking the law.

Other Aspects of the Americans with Disabilities Act

There are a few miscellaneous key points to understand about the ADA and its requirements. First, the ADA – like the original Civil Rights Act – only governs employers with 15 or more employees, so technically employers with fewer than 15 employees are not required to make any accommodations for disabled persons. However, a refusal to hire disabled persons when doing so would require little or no accommodation may still be considered illegal discrimination.

A disabled employee may request accommodations for a disability at any time during the employer-employee relationship. The employee is not required to disclose such disabilities or request accommodations at the time of hiring.

If a disability is not obvious, an employer may ask the individual in question for documentation validating the disability and the accommodations needed. But if the disability is obvious, then this practice is illegal.

In these instances, employers should be cognizant of and sensitive to a disabled person’s right to privacy. An individual may be required to disclose specific medical details to the employer for the purposes of ADA accommodations. But even if the individual’s appearance/behavior or the accommodations provided may make a disability apparent to coworkers, customers, and third parties, the employer must still maintain the confidentiality of the exact details of an individual’s disability, ADA status, and accommodations. Employers should have no discussions concerning an employee’s disability with anyone other than the employee.

Second, employers are only obligated to provide reasonable accommodations to perform the job in question where appropriate. They are under no obligation to provide accommodations that are necessary for the individual to use in their personal lives. For example, employers are not required to provide wheelchairs, prosthetic limbs or service animals, as these items are necessary for a disabled person to perform basic personal functions unrelated to work.

Third, an employer is only required to provide what is necessary to perform the job at hand, notwithstanding the preferences of the disabled person. In other words, where an accommodation may be accomplished through more than one method, the employer is not obligated to consider the employee’s preferences.

Fourth, regardless of whether an employer is required to provide an accommodation under the ADA, the employee is not required to accept the accommodation. For example, an employer may be required to provide TTY telephones for a deaf person, but the employee may refuse to use this type of phone.

If this refusal results in the employee’s inability to perform a job, the employer may lawfully terminate him or her. However, a smart employer would first consider reassigning the employee to a different position in the interest of avoiding potential hostility, litigation and poor public relations.

Amending the Americans with Disabilities Act

In 2008, Congress amended the ADA with the Americans with Disabilities Act Amendments Act (ADAAA). The ADAAA clarified many of the prescriptions of the original Act, expanded the definitions for various disabilities and broadened protections for disabled persons. Consequently, the Equal Employment Opportunity Commission (EEOC) relied on the amendments under the ADAAA to win several court cases holding that obesity may, under certain circumstances, be a disability.

In the next part of this article series, we’ll examine some of the other protections that have been added to federal law since the passage of the original 1964 Civil Rights Act, including age, pregnancy and other personal characteristics.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.

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