Americans with Disabilities Act (ADA)

Passed in 1990, and amended in 2008, the Americans with Disabilities Act (ADA) prohibits disability discrimination in employment, public services, public accommodations, and telecommunications throughout the United States. This post will focus on the portion of the ADA governing employment.

Definition of “disability”

So what is a disability anyway? The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” Major life activities include: walking, seeing, sitting, hearing, speaking, breathing, learning, lifting, performing manual tasks, taking care of oneself, and, major bodily functions (added under the ADAAA).

Critically, in the 2008 amendments, congress clarified that courts should interpret the term disability broadly for employees. When determining whether or not someone has a disability, courts must consider how well the person can perform major life activities without measures they might use to minimize their symptoms. For example, an employee could take medicine to minimize their depression symptoms. A Court would consider how this person would act without the medicine to determine whether or not they have a disability under the act.

Additionally, the ADA protects employees from disability discrimination who:

• had a disability in the past but no longer exhibit symptoms, or
• have never had a disability but are wrongly assumed disabled.

Types of ADA Employee Claims

Employees can bring many different types of claims under the ADA.

(1) Failure to Accommodate

First, employees can bring failure to accommodate claims. For a failure to accommodate claim, an employee must show that : (1) she is disabled within the meaning of the ADA; (2) she was able to perform the essential functions of her job either with or without a reasonable accommodation; and (3) despite the employer’s knowledge of her disability, the employer did not offer a reasonable accommodation to the employee.

Disabilities, jobs, and reasonable accommodations can vary widely. As a result, to determine what a reasonable accommodation could be in a specific case, both employees and employers must engage in a discourse with each other called “the interactive process.” Importantly, courts care that both parties engage in the interactive process in good faith. If either party does not engage in good faith, they could lose their case. See E.E.O.C. v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 133-34 (1st Cir. 2014) (First Circuit dismissed an employee’s case because she walked away from the interactive process). Read more about Reasonable Accommodations Here.

Even if an employee can show (1)-(3) listed above, her employer still need not provide a reasonable accommodation if it would cause “undue hardship.” (i.e. if the accommodation would require significant difficulty or expense). What counts as undue hardship for one company might not count for another company. It is determined on a case-by-case basis.

Overall, the ADA encourages employees and companies to talk to one another and find tailored solutions. When dialogue breaks down, and these claims arrive in Court, they are fact intensive indeed.

(2) Disability Discrimination and Harassment

Next, employees can bring claims for harassment and disability discrimination without needing or requesting accommodations. These claims work similarly to discrimination and harassment claims based on other protected characteristics such as race and sex. For example, an employee should not need to deal with insults, insensitive jokes, or other bullying because of his disability. If these actions create a hostile work environment that the employer does not remedy, then this employee has a disability harassment claim. Similarly, if an employer terminates, demotes, or passes an employee over for promotion because of his disability, it violates the ADA.

Furthermore, the ADA governs when and in what manner employers may ask for disability related information (often medical information) from job applicants and employees. You can learn more about when employers may ask for medical information and how they should handle it here.

(3) Retaliation

Finally, the ADA protects employees from retaliation for trying to enforce their rights under the act. This means employers should not terminate employees who request accommodations or report disability harassment.

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