The Basics
While there is a strong business case for disability inclusion, just as any other diversity dimension, there are laws and regulations in place today to ensure a fair non-discriminatory workplace environment and encourage proactive inclusion.
As a person with a disability, you are covered by particular laws related to employment. Many but not all employers are covered by the Americans with Disabilities Act (ADA) and its more recent amendments the Americans with Disabilities Amendments Act (ADAAA). All public or private employers with 15 or more employees are covered under the ADA and the ADAAA.
In addition employers who do contract work with the federal government are also covered under Section 503 of the Rehabilitation Act of 1973 as amended. In some states, disability is also a covered class under their State Human or Civil Rights Law.
Choose a Section:
What is the ADA and ADAAA?
President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed. The ADA is a discrimination law that defined disability and addressed the requirement for employers to provide reasonable accommodation to its workers and made it illegal to ask a candidate or employee to disclose that they had a disability. It doesn’t require an employer to hire or give preferential hiring/promotion to an individual with a disability. An individual with a disability is one who either has a physical or mental impairment that substantially limits a major life activity. Or, the individual has a record of having such an impairment (For example, a history of having cancer, TB, Chronic pain, fatigue, depression) or, is regarded as having a disability meaning that, a person is presumed to have a disability that substantially limits a major life activity and the employer takes negative action based on the misperception.
The ADA is divided into five titles:
- Title I requires covered employers from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment.
- Under Title II, public services (which include state and local government agencies, the National Railroad Passenger Corporation, and other commuter authorities) cannot deny services to people with disabilities or deny participation in programs or activities that are available to people without disabilities. In addition, public transportation systems, such as public transit buses, must be accessible to individuals with disabilities. Public accommodations include facilities such as restaurants, hotels, grocery stores, retail stores, etc., as well as privately owned transportation systems.
- Title III requires that all new construction and modifications must be accessible to individuals with disabilities. For existing facilities, barriers to services must be removed if readily achievable.
- Title IV requires that Telecommunications companies offering telephone services to the general public must have telephone relay service available to individuals who use telecommunication devices for the deaf like TTYs) or similar devices.
- Title V states that both the States and Congress are covered by the ADA, provides for recovery of legal fees for successful proceedings pursuant to the ADA, and establishes a mechanism for technical assistance along with specific instructions to many federal agencies.
Additionally, Title V includes a provision prohibiting coercing, threatening or retaliating against those attempting to aid people with disabilities in asserting their rights under the ADA.
A person may be considered an individual with a disability if they have one or more major life functions impacted by an individual’s condition. Examples of Major Life functions are:
Caring for Oneself, Performing Manual Tasks, Walking, Seeing, Hearing, Speaking, Breathing, Concentrating, Learning, Working, Sitting, Standing and Lifting.
One of the central tenants of the ADA is that peoples’ capabilities must be determined on an individual, case-by-case basis.
Title I is designed to ensure that qualified individuals with disabilities have the same employment opportunities that are available to individuals without disabilities. It prohibits employers from discriminating against qualified people on the basis of disability in job application procedures, hiring, job training, advancement, compensation, benefits, firing and all other employment-related activities. Private & public employers with 15 or more employees are covered. This insures protection for both full time and part time employees.
Although many individuals with disabilities don’t need reasonable accommodations, some do. For those who do, the ADA requires an employer to provide reasonable accommodation to qualified employees or applicants with disabilities, unless the accommodation would cause undue hardship.
The ADA does not relieve an employee or applicant from the obligation to perform the essential job functions. To the contrary, the ADA is intended to enable individuals with disabilities to compete in the workplace based on the same performance standards and requirements that employers expect of people who are not disabled.
The Department of Justice is responsible for enforcement of Title II and Title III. Title II and III are designed to ensure that qualified individuals are not discriminated against in services, programs and activities provided by state and local government entities and access to Public facilities such as restaurants, hotels, grocery stores and retail stores.
ADAAA
The ADA was amended in 2008 and the Americans with Disabilities Amendments Act (ADAAA) became effective January 1, 2009. The ADAAA was passed to return the ADA to its intended origins and to address issues that had historically resulted in individuals with disabilities to have to prove a disability first before proving the discrimination. It broadened the definition of disability and removed the regard of mitigating measures as a method of disallowing a disability.
The ADAAA also expanded the definition of a disability to include bodily functions such as: the Immune system, normal cell growth, Digestive, Bowel, Reproductive, Bladder, Brain, Circulatory, Cardiovascular, and Neurological.
An example of a disability under the category of normal cell growth is cancer. Prior to the expanded definition, if a cancer survivor was in remission they weren’t covered under the law because they weren’t considered substantially limited in a major life activity.
In addition, the ADA addressed specific areas that had been dismissed as disabilities in the past:
Episodic Disabilities are conditions that may be episodic in nature and are considered a disability, even in remission, if it would be substantially limiting when active. Examples of episodic disabilities are: Epilepsy, Hypertension, Multiple Sclerosis, Asthma, Diabetes, Major Depression, Bipolar Disorder, Schizophrenia, and Cancer.
Mitigating Measures are any device, measure, or medication that reduces the effects of the disability
Now under the expanded definition, Mitigating measures are ignored in determining whether an impairment is substantially limiting. Examples such as: medication, medical supplies, equipment, or appliances, Low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, are considered mitigating measures.
Individuals who use ordinary eyeglasses and contact lenses are not considered individuals with disabilities because the glasses or contacts were not correcting a substantially limiting condition.
Enforcement
EEOC: The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title I of the ADA and Title VII of the Civil Rights Act of 1963, as amended. (For all employers covered under the ADA and ADAAA, including federal contractors)
Department of Justice: The Department of Justice is responsible for enforcement of Title II and Title III.
OFCCP: Office of Federal Contract Compliance (OFCCP) is responsible for compliance of federal contractors and sub-contractors. It is a Federal government agency that falls under the U.S. Department of Labor. It is important that employers understand their contractual responsibilities regarding affirmative action and equal employment opportunity that’s required of those doing business with the Federal government. The OFCCP is responsible for enforcing compliance of Executive Order 11246 as amended, Section 503 of the Rehabilitation Act of 1973 as amended and The Vietnam Veterans’ Readjustment Assistance Act of 1974 as amended. These laws ban discrimination and require Federal contractors to take affirmative action to ensure that all individuals have equal opportunity for employment, without regard to race, color, religion, sex, national origin, disability or status as a Vietnam era or special disabled veteran. The OFFCP conducts audits, or what they refer to as compliance evaluations, to ensure employers comply with the regulations.
Glossary of Terms
ADA – Americans with Disabilities Act (ADA) went into law on July 26, 1990. The ADA is a discrimination law that defined disability and addressed the requirement for employers to provide reasonable accommodation to its workers and made it illegal to ask a candidate or employee to disclose that they had a disability.
ADAAAA – The ADA was amended in 2008 and the Americans with Disabilities Amendments Act (ADAAA) became effective January 1, 2009. The ADAAA was passed to return the ADA to its intended origins and to address issues that had historically resulted in individuals with disabilities to have to prove a disability first before proving the discrimination. It broadened the definition of disability and removed the regard of mitigating measures as a method of disallowing a disability
EEOC – The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing Title I of the ADA and Title VII of the Civil Rights Act of 1963, as amended. (For all employers covered under the ADA and ADAAA, including federal contractors)
IWD – Individual with a Disability
OFCCP – Office of Federal Contract Compliance Programs (OFCCP) at US Department of Labor. The purpose of the Office of Federal Contract Compliance Programs (OFCCP) is to enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government.
Disability.gov, Employment Laws
https://www.disability.gov/employment
Disability.gov, Guide to Disability Rights Laws
https://www.disability.gov/resource/disability-govs-guide-disability-rights-laws/
Office of Federal Contract Compliance, US Department of Labor
http://www.dol.gov/ofccp/regs/compliance/ofcpcomp.htm#Section503
Office of Disability Employment Policy, US Department of Labor
http://www.dol.gov/odep/topics/ADA.htmDisability.gov