DAby
Julie Roberts
Comp 1113
Section 12-041
Instructor Joy Cleaver
December 2, 1996
There may be as many as one thousand different disabilities that affect
over forty-three million Americans. Of all the laws and regulations governing
the treatment of those Americans the American with Disabilities Act (ADA) is the
most recent major law. It was passed in 1990 and although it is spelled out in
a technical ADA manual that is several hundred pages in length. Two of ADA's
two major sections, Titles II and III concern the operation of state and local
government and places of public accommodation. They require new public and
commercial facilities to be accessible to people with disabilities.
Modifications to existing facilities need to be made only if the cost is
"readily achievable" and does not cause an undue financial or administrative
burden. This essay will concentrate on Title I, the employment aspects of the
law. This section forbids employment discrimination against people with
disabilities who are able to perform the essential functions of the job with or
without reasonable accommodation.This definition poses three main questions: Who is considered disabled?
What is an essential function of a job? What is considered Reasonable
Accommodation?
To be protected under the ADA an individual must have a physical or
mental impairment that substantially affects one or more major life activities.The impairment may not be due to environmental, cultural, or economic
disadvantages. For example a person who cannot read because they have dyslexia
is considered disabled but a person who cannot read because they dropped out of
school is not.
In addition persons who are perceived to be disabled are
protected by ADA. For example, if a person were to suffer a heart attack, when
he tries to return to work the boss might be scared the workload will be too
much and refuse to let him come back. The employer would be in violation of the
ADA because he perceives the employee as disabled and is discriminating based on
that perception. Two classes that are explicitly excluded from protection under
ADA are those individuals whose current use of alcohol or illegal drug is
affecting their job performance. However those who are recovering from their
former use of either alcohol or drugs are covered.The Equal Employment Opportunity Commission (EEOC), the federal agency
responsible for enforcing the ADA and other EEO laws that apply to most public
and private employers, separates job duties into two categories: essential and
marginal.
Essential functions are those duties that each person in a certain
position must do or must be able to do to be an effective employee. Marginal
functions are duties that are required of only some employees or are not
critical to job performance. The ADA requires that employers make decisions
about applicants with disabilities solely on the basis of
their ability to perform essential job functions.Reasonable accommodations are the actions taken to accommodate the known
disabilities of applicants or employees so that disabled persons can enjoy equal
employment opportunities.
Since it is not generally acceptable for a potential
employer to ask about a disability or conduct test such as HIV test to look for
disabilities, it is the responsibility of the applicant or employee to inform
the employer of the disability and needed accommodation. At that point the
employer must make "reasonable accommodation for the known disability. An
employer may not deny employment in order to avoid providing the reasonable
accommodation unless it would cause an undue hardship. Even then the applicant
or employee should be given the option of providing accommodation himself.
The employment provisions began to be enforced for business with 25 or more
employees on July 26, 1992. This affected approximately 264,000 employers. The
second phase of the employment provision went into affect July 26, 1994, and was
implemented for the approximately 666,000 U.S.
employers with 15 or more
employees.Many opponents of the ADA suggested that the law would cost small
businesses too much. They contended that the legislation would backlog the
courts with lawsuits from scorned job applicants. However this has not been the
case.
Over eighty percent of the discrimination complaints filed with the EEOC
have been entered by current employees who claim a prior disability or recently
disabled workers who contend that their employers have not reasonably
accommodated their needs under the law. According to EEOC records the most
common type of disabilities suffered by workers who claim employment
discrimination is back problems, which account for about eighteen percent of
complaints. Mental illness has the next largest portion of complaints, making
up about ten percent. It is followed by heart trouble, neurological disorders,
and diabetes. Only around twenty percent of all complaints filed argue that the
employer failed to provide them with reasonable accommodations for their jobs.Ten percent of compla ints received claim that they have unfairly disciplined
because of their disability, while nearly four percent contend they have been
denied rightful benefits.
Although the ADA was passed to bring disabled people
into the mainstream, these numbers show that most of the complaints filed have
not been what would traditionally be called handicapped people. In fact only
six percent of all the actions filed during the first three years the law was in
force were filed by the blind and the deaf.As of November 1994 two-thirds of all severely disabled adults remain
unemployed, the same number as when ADA was passed in 1991. Many experts
believe that people with traditional disabilities are not exploiting the law as
expected, partly because many fear losing comprehensive medical benefits from
programs like Medicaid. "Most of us are scared to death to get a job and lose
out on poverty-based health care," said Justin Dart, former chairperson of the
President's Committee on Employment of People with Disabilities. Meanwhile, the
ADA has armed less severely disabled workers with a law that is broad and vague.
The cost of "reasonable accommodation" has been a controversial topic
since the bill's inception. Many feared it would force many small businesses
under or at least add another barrier to entry for small business. In one
example a Denver restaurant owner paid thousands of dollars in additional
construction cost, legal fees, and fines to comply with the ADA.By the time
he was finished these additional expenses amounted to more than half the
original cost of opening the business.
This is however by no means the norm.To the contrary, studies show that costs of installing required accommodations
average less than one percent during construction. If the job had been done
right at the outset, none of the additional expenses would have been incurred,
according to the former Democratic representative from California who was the
principle author of the ADA. In fact according to a two year survey from the
Job Accommodations Network at West Virginia University, two-thirds of
respondents said their accommodations cost less than $500, and only four percent
said the accommodations cost more that $5000. The survey also reported that
business persons estimated they get back $30 in benefits such as increased
productivity for every dollar they spend. Over half of the sixty-one thousand
businesses that participated in this survey last year had less than a thousand
employees.
Experts agree that a proactive and collaborative approach is the best
way to accommodate workers with disabilities and thereby avoid litigation.Since the first step is for the employee or applicant to identify himself as
disabled, the employer is not obligated to consider or provide any kind of
accommodation until that identification is made. The request should be made in
written form. At that point the individual and the employer collaborate in
identifying the barriers that limit the employee's ability to perform essential
job functions.
There are standardized surveys that may assist in determining
the employee's existing or potential accommodation needs. One example is the
Work Experience Survey, which is a structured interview that enables respondents
to determine career adjustments and advancements in a variety of areas. Next
the employer should identify a variety of accommodations, using the person with
the disability as a resource. The alternatives are the considered and employer
determines which would impose fewest economic hardships, considering the
employee's preference when two equivalent accommodations have been identified.The chosen accommodation is then implemented.
As with any company policy, it is
important to document it and provide for ongoing reviews. Another important
factor is to make sure there is a clear channel of communication with the
disabled person for addressing future needs.According to an article in HR Focus there are some steps employers can
take in designing work areas to easily accommodate employees. Some of the
suggestions include: Use panel systems so that work spaces can be easily
modified and work surface heights can be raised or lowered as needed. Install
electronically controlled work surfaces and tables.
Lower storage areas or
install storage areas that are movable. Install adjustable keyboard pads that
adjust easily with little hand pressure. Install adjustable lighting with
variable intensity that can add more or less light to the work space as needed.
The Americans with Disabilities Act was enacted with the best of
intentions. Although it has undergone much scrutiny it is clearly a step in the
right direction. As is apparent by the previously mentioned statistics and
surveys, the ADA has not put too large a burden upon business to provide
reasonable accommodation.
However since the employment rate of the traditional
handicapped person has not been affected since the laws inception there is
obviously much work to be done. In the future if handicapped people are going
to be integrated into the mainstream of society it will take a collective effort
not from the United States Government, but from society in general. People from
both all walks of life, including handicapped and nonhandicapped, must want the
changes and take some initiative to make it happen.
Works Cited
Bowers, Brent.
"ADA Compliance comes cheap, a survey finds." Wall Street Journal
16 Sep. 1994 p(b)2 col 5.
Coelho, Tony. "A sad story, but not typical." The Washington Post 19 Feb.
1995
p(c)6.
Gomez-Mejia, Luis R., David B. Balkin, Robert L. Cardy. Managing Human Resources.
Englewood Cliffs, NJ: Prentice Hall, 1995.
Mullins, James A, Jr. "Use a Collaborative approach to reasonable
accommodation". HR Focus Feb.
1994 p16.
Renolds, Larry. "ADA Complaints are not what experts predicted." HR Focus Nov.
1993 p6.
Smolowe, Jill. "Noble Aims, Mixed Results" Time 31 July 1995.
"Some quick tips to make workspaces more flexible" HR Focus July 1992 p12-14.
Stamps, David "Just how scary is the ADA?" Training June 1995 p93.
"Who are the Disabled?: At work: A controversial law falls down on the job".
News Week 7 Nov. 1994.
Category: Law
