Employment Law

Employment Discrimination Under the Americans with Disabilities Act

     The Americans with Disabilities Act, also known as the “ADA” (and not to be mistaken with the ADEA) is a legislative Act that was passed in 1990 to assist individuals with disabilities throughout the nation in various important areas and to eliminate existing barriers that largely impacted people with disabilities’ ability to participate in important, everyday activities. Essentially, the ADA is meant to create equal “playing ground” between those who have disabilities and those who don’t to ensure “equal treatment under the law,” as required by the Fourteenth Amendment.

     As late as 1990, at the time the ADA was passed, many people with disabilities did not have the same protections and opportunities that they do today or the same protections and opportunities that non-disabled people have. Less than 25 years ago, there was no wheelchair access to the U.S. Capitol, there was no braille in elevators (some critical government buildings didn’t even have elevators), and there were no subtitles used in TV to relay important government messages. To combat this serious social problem, legislators and disability advocates passed the ADA, believing that where the law progressed, society would progress also. 

     The ADA addresses those areas viewed as essential to a thriving democracy and society, where access and equitable treatment had long been missing, such as in employment, transportation, communications, public accommodations, and access to various government programs and services. Accordingly, Congress enacted provisions that would address these areas. As such, the ADA is broken down into several Titles, each pertaining to a broad area where equal treatment and equal access is required. Although there are 5 Titles, we will only discuss Title I, as it is the Title relating to employment discrimination against people with disabilities.

     However, while we have come far as a country, we still have a long way to go, as many people with disabilities still do not receive equal treatment in the workplace or retain equal access to important government programs and services. The EEOC reported that in 2021, a staggering 22,843 employment discrimination claims were brought under the ADA, Title I (and concurrently under Title VII, the EPA, the ADEA, and GINA), although this is lowest number reported since 2009.

The ADA and Employment Discrimination: An Overview

     The ADA makes employment discrimination based on any real or perceived disability illegal. Where a disability does not have any substantial impact on an employee’s ability to conduct themselves in the position they are interviewing to work in or already working in, an employer must provide them with the assistance they need so that they may have the opportunity to work competently in the position in their role. However, this is not read to mean that an employer is bound to hire or retain an employee with a disability when someone with a disability applies. Rather, an employer is only prohibited in considering a disability in making employment decisions.

     Harassment is also prohibited under the ADA, which could include derogatory remarks and slurs, intentional exclusion and isolation, and other inappropriate workplaces behaviors indicating discrimination against a protected class. Generally, harassment denotes behavior that is ongoing rather than a single instance, which ultimately results in an adverse employment action against the employee such as demotion or termination. Ultimately, the adverse action taken against an employee with a disability is what makes the harassment illegal.

     When a discriminatory act has occurred and an adverse employment action has taken place, the complaining employee generally has 180 days to bring a charge against the employer. In addition, those persons who are known to associate with a disabled person or people or have a relationship with disabled person also are protected under the ADA. Discrimination on this basis is known as discrimination based on “relationship and association.” Surprisingly, the ADA is not applicable to all employers. However, the ADA’s provisions are generally applicable to private and public employers as well as labor organizations, employment agencies, and labor management committees.

The Term “Disability” as it Relates to the ADA

     A disability is any physical or mental impairment that hinders or “substantially impairs” a person’s ability to engage in important, everyday activities, such as walking, talking, hearing, seeing, eating, breathing, learning, and many other activities. Impairments or conditions that are not covered under the ADA are generally more temporary in nature and deemed non-chronic, such as an ankle sprain or a stomach virus. However, even when a person has a disability coming within this very broad interpretation, to receive coverage under Title I in the ADA, an employee must have a record indicating the claimed disability and be regarded as having a disability. Where either cannot be established, an employee is unlikely to receive the ADA’s protections.

Reasonable Accommodations

     In order to remain in compliance with the ADA’s provisions, an employer must provide an applicant or an employee who has a disability with a reasonable accommodation. A reasonable accommodation is any measure taken in regard to a workplace position or workplace environment that will allow a suitable candidate or employee to adequately participate in the application process or engage in essential work-related duties. However, reasonable accommodations are not only used to ensure that an employee with a disability can adequately work in their assigned position, but it also ensures that a disabled employee will receive the same rights and privileges that non-disabled employees are entitled to. Some reasonable accommodations might include having somebody to assist a blind employee with reading workplace bulletins, allowing an employee with kidney disease to leave early to receive treatment, or providing an employee with hearing loss with a sign language interpreter at important company meetings.

     For example, suppose that Alicia has Type 1 Diabetes. Although mostly under control, Alicia has recently been struggling to manage her blood sugar levels. Alicia works at XYZ Customer Service Center. Because employees are generally on a phone line at their individual workstations each day helping customers, XYZ’s Customer Service Center employs a policy that completely prohibits employees eating while at their workstations. When Alicia’s blood sugar levels become dangerously low, it might be medically necessary to eat or drink something quickly to avoid a medical emergency. To prevent this, Alicia’s manager allows her to keep small, hard candies at her workstation if she experiences a substantial decrease in her blood sugar levels. This would constitute a reasonable accommodation.

     Nevertheless, an employer is not necessarily bound to provide a disabled employee with reasonable accommodations. An employer covered by the ADA does not have to provide a reasonable accommodation if doing so would create an “undue hardship.” Essentially, an undue hardship is any action that would require a substantial expense or challenge when considering the organizations or company’s size, resources, and its operational nature.

     However, most people with disabilities protected under the ADA will not need accommodations, and when they do, the necessary accommodations are generally low-cost. Many prevalent and debilitating conditions relating to mental health, such as ADD, depression, and anxiety, can be addressed with medications or other medical intervention without employer involvement. In a study published by the Job Accommodation Network, where 1,029 employers were surveyed, around 58% reported absolutely no expense to provide their employee(s) with reasonable accommodations.

Title I: Employment Discrimination and Prohibited Conduct under the ADA

Discrimination in the Workplace

     The term “discrimination” is somewhat broad. However, in its most simple terms, discrimination is any negative action taken against someone based on a key characteristic associated with a person’s identity that usually places them in a minority class or subset. For example, race, national gender, religion, age, and pregnancy are all characteristics connected to an individual’s personal identity and are all protected classes under employment discrimination regulations, such as the CRA.

     Title I under the ADA prohibits discriminatory practices with respect to all stages in the employment process, including the application process, hiring, training, pay determinations, promotions, demotions, terminations, and any other employment privileges and conditions. This includes both intentional discrimination, known as “disparate treatment discrimination,” which includes discriminatory behavior such as using derogatory terms or language aimed at a person with a disability, as well as “disparate impact discrimination,” which is generally unintentional, and not outwardly discriminatory, but has a discriminatory impact in practice. Title I also prohibits harassment based on their disability and an employee may not be disciplined or retaliated against upon asserting their rights under the ADA. The term “harassment” used in the employment discrimination context is not the same as used in a social context, as “harassment” actually has to meet certain requirements to be legally deemed discrimination under the ADA, which we will discuss more below.

Disparate Treatment vs. Disparate Impact

     Discrimination can be broken down into two subcategories: disparate treatment discrimination and disparate impact discrimination. When an employer, a supervisor, a co-worker, or anyone else intentionally discriminates against an employee based on their membership or association within a protected class in an employment setting, it is known as disparate treatment discrimination. When an employer has a particular policy or practice in place that outwardly appears neutral but ultimately has an adverse impact on a protected class, this is known as disparate impact discrimination.

Disparate Impact: An Example

     Suppose Mega Grocery, Inc. is a large grocery chain employing several hundred people. This grocery chain is relatively new in the industry but has proved to be a big hit with its huge product variety, extremely reasonable prices, and impeccable customer service. To ensure that they are only hiring the “best” employees, Mega Grocery, Inc. implements a written examination that applicants must pass to be hired on. The examination involves various question types and topics deemed “practical” and “basic” by its corporate management, testing the ability to count money, customer service skills, proper bagging, and stocking/product placement. To be hired, the applicant must receive a 75 or higher, which was generally shown to be an easily attainable score.

     Lenny, who is 27, has extensive work experience in grocery stores throughout the city, and has worked in several positions throughout each grocery store. Lenny recently applied to work at Mega Grocery, Inc. as a cashier, an area in which he has three years’ experience. He made it all the way to the written examination, which was the last step in the hiring process. Lenny has Asperger’s Syndrome, and is very competent in math-related topics, is very meticulous, detail oriented, and incredibly reliable, but he struggles with social interaction, making conversation, and picking up on social cues. Lenny scored a 68 on the written exam. He answered all questions correctly except those relating to customer service because he does not have the intuitive social skill set that many people without Asperger’s Syndrome naturally develop. Because Lenny did not get the 75 points required, Lenny was denied employment.

     This is an employment policy with a disparate impact, because, while it is not written in a discriminatory manner or with a discriminatory intent in mind, people lacking in any single are covered on the examination are likely to be denied employment without a valid basis in doing so. This policy could exclude people with a vast range in applicable abilities to the position they are seeking. Lenny is great with money, he needs consistency and gives consistency in return, and thrives on order and organization—all qualities essential to a good employee and good cashier. His general lack in customer services skills could be worked on and he is otherwise competent to work as a cashier. Accordingly, this policy likely will be deemed disparate impact discrimination.

Harassment vs. Bullying

     Harassment and harassing behavior are prohibited under the ADA. Harassment can be expressed by various means and usually occurs when an employer or an employee makes derogatory remarks, slurs, or directs negative symbols to disabled employees. Although this behavior could also constitute bullying, harassment and bullying are not interchangeable terms when used in the employment discrimination context. Where harassment is legally actionable under the ADA, bullying generally isn’t, although an employer bullying another employee may be reprimanded or terminated due to a company’s own, non-actionable anti-bullying policies. Ultimately, bullying is not going to result in any legal consequences.

     The most substantial way bullying, and harassment can be contrasted is through regularity and severity. To be actionable under the ADA, harassment must be so regular and so severe that it results in: (1) a hostile work environment; or (2) an adverse employment action with respect to the disabled employee (i.e., they are demoted, terminated, etc.). Accordingly, an employee can be bullied without being harassed or discriminated against under the ADA.

     In any event, an employee who believes that they are being bullied or harassed based on a disability protected under the ADA should report the conduct to their supervisor or superior(s) so that the situation can be mediated and addressed accordingly. Should an employee believe that they are being harassed, they will want the harassment reported if a claim must be pursued by the EEOC (discussed below), as it is generally the complaining employee’s burden to prove that they were discriminated against. This is advisable even where there may be no viable claim under the ADA. Even when the discriminatory conduct does not necessitate a claim with the EEOC, most employers have a strong interest in maintaining an inviting, welcoming, and amicable work environment amongst all employees. Even where an employer is less than welcoming, severe monetary penalties can result when discrimination regulations are not complied with, generally incentivizing civility—or at least no illegal activity—in the workplace.

Retaliation

     The ADA also prohibits any discrimination based on employee opposition to discriminatory employment practices. Essentially, an employee cannot be terminated, demoted, or undergo any other adverse employment action due to their bringing a charge against the employer or by participating in any investigation under the ADA’s provisions. This extends not only to employees who have a disability, but also to employees who associate with people with disabilities via marriage, direct relation, etc.

ADA Applicability

     Overall, with respect to employers, the ADA is applicable to private employers, state and local governments, employment agencies, labor unions, and labor management committees. However, the ADA is not applicable to all employers and coverage is dependent on how many employees a business has. Originally, during the ADA’s passage in 1992, only employers with 25 employees or more were bound by the ADA’s provisions. However, two years later in 1994, the ADA was expanded to cover employers with 15 or more employees and this 15-employee requirement prevails today. Federal sector employees are also bound by the ADA under Section 501 in the Rehabilitation Act.

Conduct NOT Prohibited under the ADA

     The ADA was meant to create equal opportunities to marginalized communities according to disability, not to elevate their priority or seniority over nondisabled employees. Ultimately, the ADA promotes the principle that the best candidate should be hired and retained, notwithstanding any disability a candidate or employee may have. Accordingly, when a disabled candidate is not hired because another disabled candidate had more relevant or applicable training, or experience, or education, denying or terminating the disabled candidate or employee is not prohibited under ADA standards.

Conduct NOT Prohibited: An Example

     For example, suppose Cooper, a 28-year-old, is applying to work as a computer technician at an engineering company. Cooper was in a catastrophic boating accident two years ago, which resulted in his paralysis. Cooper can move his arms but has no movement in his legs. Cooper is exceptionally intelligent and has a degree in computer engineering. He has worked in one other position as a computer tech at another engineering company over a one-year period. Cooper’s interview went well, the interviewer was impressed with his computer knowledge, and Cooper thought he had a great chance at being hired. However, while the position was ultimately given to another candidate who had no disability, this candidate, who was much older in age at 37 years old, had a college degree in computer engineering and 15 years’ experience in working as a computer tech, making him better suited to meet the engineering company’s particular needs.  

     Here, the engineering company was not bound to accept Cooper’s candidacy simply because he had a disability, and the other candidate did not. Cooper does not seem to have been overlooked due to his disability, as his interview went well, and the interviewer was obviously impressed with him. Rather, Cooper was not chosen because the other candidate simply had more relevant experience applicable to the position. So long as the engineering company gave no consideration to Cooper’s disability in making the determination to hire the other candidate, this is not a scenario indicating discrimination pursuant to the ADA.

A Note on Illicit Drug Use and Abuse

     Employees or applicants using illegal drugs or substances are not protected under the ADA, as illegal substance use, and abuse is not considered a disability under the ADA. In addition, the ADA does not prohibit illicit drug testing administered by an employer. Any employee who uses illegal drugs or substances are held to the standards any ordinary, non-disabled employee would be held to.

Privacy Standards under the ADA

     It is important to note that employers are not permitted to ask applicants about any disabilities they may have during the application process, including questions about the nature or severity of the disability. However, employers are generally able to question an applicant’s ability to do tasks associated with the position. While employment may be conditioned on a medical examination, a medical examination must be universally required in hiring all employees working in a similar position to be legal under the ADA. In addition, a medical examination must be related to the employer’s business needs.

     Medical records must also be kept private, and any medical data learned or obtained by the employer must not be disclosed, with limited exceptions. This is true even when the medical records do not contain any diagnosis or medical treatment course and even when the records were not generated by an individual or entity in the medical industry. This also means that any reasonable accommodation request made by an employee must remain private and cannot be disclosed to unauthorized employees or other workers.  

The Equal Employment Opportunity Commission

     Many government agencies are charged with overseeing the ADA’s administration, ensuring compliance with the ADA’s provisions, and investigating claims that may arise under the ADA. Under Title I, the agency charged with ensuring compliance with the ADA and investigating claims brought pursuant to the ADA is the Equal Employment Opportunity Commission (“EEOC”), which is the same government agency handling claims under Title VII in the CRA.  

     When an employee with a disability believes their ADA rights have been violated, they are encouraged to bring a complaint with the EEOC. The complaint must be brought anywhere between 150 and 300 days upon any ADA violation or adverse employment decision, depending on the individual state’s regulations. When a complaint is brought, the EEOC will contact the employer and the EEOC may attempt to mediate the situation with the employee and employer.

     When the claim cannot be resolved through mediation, several outcomes are possible: (1) the claim may be dismissed because the EEOC has determined there is no merit to the employee’s claim and no ADA violation has occurred, allowing the employee to bring their own lawsuit without the EEOC’s support, (2) the EEOC may pursue the claim and make additional attempts to resolve the claim outside court, and, when an agreement still cannot be reached, the EEOC will either pursue litigation or issue the employee a letter authorizing them to institute a lawsuit on their own, without the EEOC’s assistance.

In Conclusion…

     This article is intended to provide you with a basic understanding on disability-based discrimination under the ADA. There is a lot to know about the ADA, and how both employers and employees can create an inclusive, accessible work environment where all employees are welcomed and valued. For employers, the EEOC posts extensive, detailed guidance on many employment aspects covered under the ADA and how to best ensure the best employment practices under the ADA’s provisions. The EEOC also publishes many resources aimed at teaching disabled employees about their rights under the ADA.

     The ADA’s passage was only the initial step in combating employment discrimination. The ADA is likely to—and already has—evolved to be more inclusive. For example, many amendments have been made to the ADA, such as in 2009, when the term “disability” was broadened to extend more coverage to employees who should receive the ADA’s protections because, while their disability was not “severe,” as previously required, it is “substantially limiting.” As technology advances and progresses, and more research is gathered on previously unknown or untreatable conditions and more options become available to address debilitating conditions, the ADA’s provisions and protections will advance and progress too.

     Although the ADA is seen as substantial protection to employees with disabilities because it is the law, it is a law that is and was written by people, is administered by people, and relies on people to report discriminatory practices. As we can see, the law really means nothing without people who are willing to abide by it. Although the ADA is riddled with technicalities, rules, and complex terms, the ADA really isn’t all that complex, the ADA’s provisions can be boiled down to living by the “Golden Rule” and treating others the way you would want to be treated.