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Enacted in 1990, the ADA was a sweeping legislation that (similar to Title VII protections) prohibits discrimination on the basis of disability. The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.”
The ADA does not list specific disabilities within its reach. The protections of the ADA extend to persons with a disability or who have a relationship or association with an individual with a disability. An individual with a disability is defined as a physical or mental impairment that substantially limits one or more major life activities, a history or record of such impairment, or someone who is perceived by others as having such an impairment.
The ADA requires employers of 15 or more to give disabled individuals an equal opportunity to benefit from all available employment opportunities. The ADA prohibits discrimination in virtually all aspects of employment, and limits disability questions to job applicants.
The ADA also requires that employers make reasonable accommodations for the disabled individual (discussed below).
The U. S. Equal Employment Opportunity Commission (EEOC) has authority to enforce and also has the power to promulgate regulations under the ADA Employment discrimination complaints must be filed with the EEOC within 180 days of the date of discrimination, or 300 days if there is a charge filed with a local fair employment practices agency. Private lawsuits can be filed in Federal court only after the EEOC issues a “right-to-sue” letter.
Since 1974, California law has also prohibited discrimination based upon disability, and generally offers even broader protections and imposes greater requirement when compared to the federal legislation. In 2000, California passed the Prudence K. Poppink Act that modified state disability law and reinforced the proposition that California law is broader than the ADA.
The FEHA covers virtually any disability that makes a life activity “difficult” and does not include the ADA’s “substantial limitation” language. Thus, some people might be “disabled” under California law, but not under Federal law. THE FEHA also prohibits discrimination based upon a person’s “record or history” of certain disabilities in the past.
Employers are limited in the disability-related questions they can ask in the hiring process and also limited in the scope of questions they can ask current employees.
Certain conditions, such as kleptomania, gambling and drug additions are specifically excluded.
If the disability is covered, then the employer must make reasonable accommodations for the employee unless it would be and undue burden to do so.
The employer must attempt to find a way to applicant or employee to obtain or maintain employment by defining the “essential function” to be completed and developing a process in which the applicant or employee can fulfill that function.
Reasonable accommodations might include modification of the physical workspace, modifying work schedules, or any change that is not an “undue burden” that will allow the person with the disability to perform essential job functions.
There are many instances when a disability may make job performance impossible. However, there are also times when, although there are times when accommodations are possible but simply too expensive or impractical to justify. Whether reasonable accommodations can be made thus must be analyzed on a case-by-case basis, and the creative suggestions for accommodation by the employee may help achieve the intended result.
To defend a disability suit, the employer must establish a legitimate, nondiscriminatory and non-pretextual reason for its actions: that the employee’s work performance was adversely affected by the disability.
The Fair Employment and Housing Commission (FEHC) can order employers to provide reasonable accommodations and award damages and administrative fines of up to $150,000.
Private litigation is also permitted and the amount a plaintiff can recover for unlawful discrimination is unlimited.