The Americans with Disabilities Act (ADA) prohibits private employers with 15 or more employees, State and local governments, employment agencies, and labor unions from discriminating against “qualified individuals with disabilities” in every employment practice – from job applications and hiring to compensation and training to lay-offs and terminations. The myriad of employment scenarios is too great for a single article. This post starts at the beginning: the application and hiring process.
Who are Qualified Individuals with Disabilities?
At the outset, there are a four terms that need to be defined to understand how the ADA operates:
An individual has a disability if at least one of the following criteria are met:
- She or he has a physical or mental impairment that substantially limits one or more major life activities;
- Major life activities include both significant activities such as seeing, hearing, reading, communicating, performing manual tasks, etc. and major bodily functions such as functions of the immune system, digestion, bowel, bladder, brain, reproductive system, etc.
- There is a record of such an impairment; or
- For example, an individual who is in remission from cancer treatment.
- She or he is being regarded as having such an impairment.
- For example, a person appears to be physically or cognitively disabled, but is not.
Qualified Individual with a Disability
For employment purposes, the term refers to individuals who meet the qualifications of the job and can perform the job’s essential functions.
Any modification that enables a qualified individual with a disability to apply for a position or perform an essential function of the job.
- In the event that such an individual meets the qualifications, but cannot perform an essential function due to limitations that are caused by the disability, the employer must consider whether the functions can be performed with a reasonable accommodation.
If the accommodation causes significant difficulty or expense for the employer. There are at least four factors that must be considered in assessing the difficulty or expense:
- the nature and cost of the accommodation needed under this chapter;
- the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
- the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
- the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S. Code § 12111(10)(B)(i)-(iv)
What is an Employer Required to Do in the Application and Interview Process?
The number one thing to keep in mind with respect to ADA compliance is that the law is individually based. In other words, an employer does not have to make a reasonable accommodation prior to knowing a qualified individual with a disability has a need for a specific accommodation. At that time, the accommodation should be based on the individual’s work needs. In the job application context, the employer is required to provide the applicant with an accommodation once the disability is known and a specific accommodation is needed, so long as it doesn’t impose an undue hardship on the employer. For example, an employer may need to make the application accessible to an applicant with visual or hearing impairments if such an accommodation is requested.
In the interview process, there may be reasonable accommodations that employers should consider, such as ensuring that there is physical access to where the interview is conducted. In addition, if there are qualification tests or examinations that applicants must take the employer may need to modify the format to accommodate the individual’s disability. However, in no event is the employer required to hold the individuals with disabilities to a different performance standard or not measure an essential job skill. For example, if an applicant is visually impaired and eyesight is an essential function of the job the employer is not required to alter the job qualifications.
Who Must the Employer Hire?
As always, employers may hire the most qualified applicant, so long as that decision is unrelated to disability. This tenet underscores the importance of an accessible application and interview process. All things being equal, the most qualified applicant for the position should be selected. A good rule of thumb to ensure that the determination is objective is to review the essential functions of the position and make certain that all applicants had the ability to demonstrate their capacity to perform those functions.
What Happens After the Hiring Decision is Made?
The reasonable accommodation process is the same for every aspect of employment. The type of reasonable accommodations needed may change when an applicant becomes a regular employee. The employer should engage in an interactive process to understand the needs of the employee and determine whether modifications can be made without creating an undue hardship for the employer. Regardless of whether the applicant is hired or not, the employer must maintain records including, but not limited to, applications, other hiring records and forms, and requests for reasonable accommodation. In addition, if the applicant is hired, the employer must retain records pertaining to promotions, demotions, transfers, lay-offs or terminations, rates of pay or other terms of compensation, and selections for training or apprenticeship. All such records must be retained one year after making the record or taking the personnel action involved, whichever occurs later.
This post merely scratches the surface of the ADA. In addition to the requirements described above, employers should consider best practices that may lessen the difficulty of making individualized accommodations every time one is needed by making their facilities and application forms generally accessible. As a business owner, you want to find the best and most qualified applicants. Anticipating accessibility issues in advance will allow for a greater pool of skilled applicants and reduce the complexity of frequently making common modifications.