This is the second installment of HR Summer School. Over the next several weeks, we’ll be reviewing the three employment laws that are the most difficult to apply–the Americans With Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA). For details on the topics to be covered, see the Course Catalog.
ADA 102, part of the HR Summer School’s Back-to-Basics Program, reviews what the Americans With Disabilities Act requires of employers.
The Americans with Disabilities Act of 1990 (“ADA”), makes it unlawful for an employer to discriminate against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in the provision of State and local government services, public accommodations, transportation and telecommunications. This outline is limited to the employment context.
The ADA Applies to All “Employment Practices”
This means that any decision relating to employment must be made without violating the ADA. Some of the most common “employment practices” include:
The Three Types of Discrimination
1. Discrimination in Employment Practices
Employers may not make employment-related decisions because of a disability.
Employers may not retaliate against an applicant or employee for asserting his rights under the ADA.
3. Associational Discrimination
Employers may not discriminate against an applicant or employee because he associates with someone disabled.
Pre-Employment Inquiries and Medical Exams
An employer may ask “disability-related questions” and require medical exams only after the applicant has been given a conditional job offer.
1. Before an Offer Is Given, An Employer May:
- Ask about the applicant’s ability to perform specific job functions.
- Ask about the applicant’s non-medical qualifications and skills.
- Ask about how the applicant to describe how he would perform job tasks.
2. Once a Conditional Offer Is Made, An Employer May:
- Ask disability-related questions and require medical exams but only if this is done for all entering employees in that job category.
3. If the Offer Is Revoked, the Employer Must Show:
- That the disability-related reason is job-related and consistent with business necessity; or
- That the employee poses a “direct threat” of substantial harm to himself or to others and the risk cannot be reduced through a reasonable accommodation.
Pre-Offer Disability-Related Questions
1. What Is a “Disability-Related” Question?
A “disability-related question” is a question that is likely to elicit information about a disability. This includes directly asking an applicant whether he has a particular disability. It also means that an employer cannot ask questions that are closely related to a disability.
2. What If the Applicant Has an Obvious Disability?
If an applicant with no known disability interviews for a job, the employer may not ask whether the applicant will need an accommodation to perform the job.
But when an employer could reasonably believe that an applicant will need reasonable accommodation, the employer may ask the applicant certain limited questions, including whether he needs reasonable accommodation and what type of accommodation would be needed to perform the functions of the job.
This is permissible in three circumstances:
- If the applicant voluntarily discloses a hidden disability;
- The employer reasonably believes an accommodation will be needed because of an obvious disability; or
- The applicant voluntarily discloses that he needs a reasonable accommodation