Questions and Answers: Disability-based Employment Discrimination

What is Oregon Advocacy Center?

Oregon Advocacy center (OAC) is an independent non-profit organization providing legal advocacy services for people with disabilities throughout Oregon. OAC is designated under law as the Protection and Advocacy System for Oregon, but it is not a government agency.

How Do I Use this Pamphlet?

This pamphlet describes employment protections under Title I of the Americans with Disabilities Act and Oregon law. It is not a substitute for legal assistance. Oregon Advocacy Center strongly recommends that individuals get professional legal advice if they have a legal dispute involving disability-related discrimination.

What Is the Americans with Disabilities Act (ADA)?

Congress passed the ADA on July 26, 1990 to protect the civil rights of people with disabilities. The law aims to reduce barriers in employment, public accommodations, public services, transportation and telecommunications for people with disabilities. This pamphlet addresses Title I of the ADA which protects qualified people with disabilities from discrimination in employment.

People with disabilities may not have equal opportunity in employment because of physical barriers (difficulty in getting into a workplace or using equipment, use of different means of communication) and societal barriers (prejudice, fear, and misconceptions about job performance). Congress enacted the ADA to eliminate these barriers to equal opportunity in employment.

The ADA protects only people who can prove they have been victims of discrimination. To prove discrimination, a person must meet these requirements:

1. The employee or applicant must have a disability as defined by the ADA: a physical or mental impairment that substantially limits one or more major life activities.

2. The employee or applicant must be qualified to do the job: s/he possesses that experience, education or documentation required and can perform the essential functions of the job with or without reasonable accommodation.

3. The employer must be a private employer with fifteen or more employees or a state or local government or agency of any size.

4. The employer has discriminated against the employee or applicant on the basis of disability.

Do I Have a Disability as Defined by the ADA?

The term "disability" has a particular meaning under the ADA. Just because an employee or applicant has a condition commonly considered a disability does not mean s/he has a disability under the ADA. Whether a person meets the ADA definition of "disability" is determined by looking at all the facts and circumstances surrounding an impairment and how the impairment limits the person. It is the effect an impairment has on the person's ability to do major life activities that determines whether a person is protected by the ADA. "Disability" under the ADA means:

• a physical or mental impairment that

• substantially limits

• one or more major life activities.

1. Physical or mental impairments include a broad range of illnesses, conditions and disorders.

   Certain conditions are excluded from the ADA, including:

   • Minor, temporary, and non-chronic conditions, such as pregnancy, temporary injuries like broken limbs, or common colds and infections. The effects of these conditions are short term or minor, therefore they do not substantially limit a major life activity.

   • Differences in personality traits or environmental, cultural or economic disadvantages.

   • Transvestism, transsexualism, pedophilia, exhibitionism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders.

   • Certain behavioral disorders, such as compulsive gambling, kleptomania or pyromania.

   • Current illegal drug use. Persons who are former drug abusers but who do not currently use drugs or are currently in a drug rehabilitation program would be protected as a person with a history of a disability.

2. Substantial limitation means that an individual is unable to perform, or is significantly limited in the ability to perform, an activity compared to an average person in the general population. For some impairments such as blindness, g\deafness or mental retardation, it is obvious that the conditions are substantially limiting. The following factors help determine whether a person's impairment substantially limits a major life activity:
   • the nature and severity of the impairment;

   • how long the impairment will last or is expected to last; and

   • the long-term impact or expected impact of the impairment.

3. Major life activities are activities that people do throughout the day; only one major life activity need be substantially limited. Major life activities include:
   • seeing
   • hearing
   • speaking
   • walking
   • learning
   • performing manual tasks
   • caring for oneself
   • working
   • breathing

   The ADA protects individuals without disabilities in four situations:

   • A qualified individual who has a record of a disability or impairment

   • A qualified individual who is regarded by the employer as having such an impairment but does not actually have a disability.

   • An individual who has a known relationship or association with an individual with a disability.

   • An individual who has opposed an act or practice of an employer that violates the ADA, made a charge of discrimination under the ADA or testified, assisted or participated in an investigation, proceeding or hearing under the ADA.

Am I a "Qualified" Individual under the ADA?

In addition to having a disability, to be protected by the ADA, the individual must be qualified and able to perform the essential functions of the job with or without reasonable accommodation.

1. Skills, experience, and education: a person with a disability must meet the minimum non-medical qualifications for the job; these include education, experience, skills, licenses, or credentials.

2. Ability to perform the essential functions of the job with or without reasonable accommodation:
   Essential functions are important and necessary duties of the job, usually determined by:
   • written job descriptions;
   • the employer's opinion;
   • duties other employees in the same or similar positions perform;
   • the terms of a collective bargaining agreement.
   • A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified person with a disability to participate in the job application process or to perform the essential functions of the job.

   Examples of a reasonable accommodation include the following:

   • providing or modifying equipment or devices;
   • job restructuring;
   • modified work schedules;
   • reassignment to a vacant position;
   • adjusting or modifying examinations, training materials or policies;
   • providing readers and interpreters; and
   • making the workplace, and non-workplace areas like cafeterias, lunges or employer-provided transportation accessible to and usable by people with disabilities.

The employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship. Undue hardship means the accommodation would require significant difficulty or expense. Or, if the employer can demonstrate that it would be an undue administrative burden or will fundamentally alter the job (such as requiring the creation of a new position), the accommodation is not required. The employer cannot require the employee or applicant to pay for the accommodation or accept a lower salary because of the accommodation.

Is My Employer Covered by the ADA?

Title I of the ADA applies to private employers with fifteen or more employees and includes employment agencies and labor unions. Businesses need not have more than fifteen employees at each site. The total number of employees at all work sites must be fifteen or more.

The ADA also prohibits discrimination in employment by local governmental agencies, departments and entities regardless of their size or number of employees. Examples include public schools and universities, police and fire departments, public libraries, museums, public parks and recreation facilities and county welfare offices.

• If you are a local government employee, consult an attorney immediately about filing a tort claim notice against your employer. You must file a tort claim notice within 180 days of the alleged discriminatory act.

The ADA does not apply to the federal government (except the U.S. Senate), damage actions against the state, or Indian Tribes, but other laws may apply.

• If you are a federal employee, you are covered by the Rehabilitation Act, not the ADA. To protect your claim, you must contact your agency's E.E.O. counselor within 45 days of the alleged discriminatory act.
• If you are a state employee, you may have a cause of action for damages, under state law.

Is My Employer Discriminating on the Basis of Disability?

The ADA prohibits job discrimination against qualified individuals with disabilities in many areas, including the following:

• Recruitment, application procedures and hiring;

• Testing, training, medical examinations, promotion and disciplinary actions;

• Benefits, compensation and termination;

• Other terms, conditions and privileges of employment.

Volunteers are not protected by the employment provisions of the ADA.

Examples of unlawful actions include:

• Using selection criteria that screens out individuals with disabilities unless the criteria are job-related and necessary for business;

• Refusing to provide reasonable accommodation to a known physical or mental limitation of a qualified applicant or employee with a disability, unless the accommodation would pose an undue hardship on the business;

• Terminating an employee because of his or her disability;

• Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects employment opportunities because of a disability.

• Participating in a contractual or other relationship that subjects a qualified applicant or employee with a disability to discrimination.

The ADA does not require an employer to hire an applicant with a disability over other applicants - the ADA prohibits discrimination only on the basis of disability. An employer may not refuse to hire a qualified applicant with a disability because s/he is disabled or because a reasonable accommodation is required for the person to perform the essential job functions.

An employer may refuse to hire an individual if s/he poses a direct threat (a significant risk of substantial harm) to the health and safety of his or her self or others. The determination of direct threat must be based on factual evidence regarding the individual's ability to perform essential portions of the job. An employer cannot refuse to hire the applicant because of slightly increased risk or because of fears that there might be significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.

Can My Employer Require Medical Examinations or Ask Questions about a Disability?

An employer cannot ask an applicant about the nature or severity of their disability, although the employer can ask if the applicant can perform the duties of the job with or without reasonable accommodation.

An employer cannot require a medical examination before offering the job. An employer can condition a job offer on the applicant passing a required medical examination if all employees for that job classification have to be examined. An employer cannot reject an applicant due to information about the applicant's disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business.

Once the applicant has been hired and started work, the employer cannot require a medical examination or ask questions about the employee's disability unless such questions are related to the job and necessary for business. The employer may conduct voluntary medical examinations as part of an employee health program, and may provide medical information required by state worker's compensation laws to local and state agencies.

How Does Oregon's Anti-discrimination Law Differ from the ADA?

Oregon's anti-discrimination law offers most of the same employment protections as the ADA. Oregon's law differs from the ADA in that it covers private employers with six or more employees, while the ADA covers private employers with fifteen or more employees. Oregon's law covers employment agencies, labor organizations and all non-federal public corporations and entities, including the state, except the Oregon National Guard.

What Can I Do If I Believe I Have Been Discriminated Against?

If you think you have been subjected to an unlawful employment practice based on a disability, seek professional legal assistance promptly. To get the protection of the ADA, you must file an administrative complaint within 300 days of the discriminatory conduct. Complaints should be filed with the Oregon Bureau of Labor and Industries (BOLI). You should request that your complaint be cross-filed with the Equal Employment Opportunity Commission (EEOC).

After conducting an investigation of your case, which can take up to a year, the EEOC or BOLI will issue a "right to sue" letter. After receiving the "right to sue" letter, you have 90 days to file a civil lawsuit.

• If you choose to file a claim in court under state law only, you are not required to file an administrative complaint, but you must file a lawsuit within one year of the discrimination.

How Can Oregon Advocacy Center Help?

OAC may be able to provide advocacy and legal assistance, including help obtaining reasonable accommodations and administrative agency complaints. The extent of OAC's role differs for each individual - contact our office for more information.

For More Information about ADA Requirements Affecting Employment Contact:

Eugene:
165 E. 7th, R. 220
Eugene, OR 97401
Voice: (541) 686-7623
TTY: (541) 686-7847

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
909 First Ave., Suite 400
Seattle, WA 98104
Voice: (206) 220-6883
TTY: (206) 553-1362

OREGON ADVOCACY CENTER
620 SW Fifth Ave., Suite 500
Portland, OR 97204-1428
Voice: (503) 243-2081
1-800-452-1694
TTY: (503) 323-9161
1-800-556-5351
FAX: (503) 243-1738

In producing this pamphlet, Oregon Advocacy Center relied on materials created by the Arizona Center for Disability Law, 3839 N. Third St., Suite 209, Phoenix, AZ 85012

Prepared November 1996, Updated by Kathy Wilde March 2002

The Supreme Court recently issued decisions that affect employment-related issues under the Americans with Disabilities Act (ADA). The decisions seem to have narrowed the scope of who may be covered under the ADA. The following questions and answers supplement OAC's Employment Discrimination pamphlet and should be read with the pamphlet and not in isolation.

How Have Recent Supreme Court Decisions Affected Whether I am Protected Under the ADA?

The Supreme Court ruled that a person's medication or other mitigating measures must be considered when determining whether a person's physical or mental impairment substantially limits one or more major life activities. The court did not exclude from coverage any particular conditions but, rather, said a court must assess each person's impairment and whether it affects the individual's daily living in its treated form. For example, a person with epilepsy who takes medication, may not be protected under the ADA if the medication successfully manages the seizure condition so that no major life activities are substantially limited. By contrast, someone with a mobility impairment who uses a wheelchair is still substantially limited in the major life activity of walking.

Does this mean Anyone Taking Medication or Corrective Measures is not Covered by the ADA?

No. The Supreme Court ruled that some individuals may have substantial limitation of major life activities because of the side effects of a medication or other corrective measures. A person with an anxiety disorder who takes Haldol, for example, may continue to be covered by under the ADA if the effects of the medication limits at least one major life activity, such as jaw spasms and slurred speech affecting speaking.

What if the Medication helps me but my Employer still Treats me as if I have a Disability?

The ADA covers a person with a history of a disability that substantially limited one or more major life activities, if that is the basis for the employer's refusal to hire. An example would be a person previously hospitalized with severe depression but who now takes medication and functions well, but is denied employment due the history of depression. Also, a person is covered under the ADA if the employer regards the person as having a physical or mental impairment when s/he dies not actually have a disability. An example or someone who may be regarded as having a disability, may not in fact have on under the new Supreme Court definition, would b e a person with diabetes. With medication the person may be fully capable of performing the job duties but does not get the job because s/he is regarded as disabled.

The Supreme Court ruling s did not affect the employer's responsibility to provide reasonable accommodations to qualified persons with disabilities in the job application process or hiring employment to assist in performing the essential functions of a job.

How have Recent Supreme Court Decisions Impacted my Ability to Bring a Claim Against my State Employer (state agencies, departments or offices)?

The Supreme Court recently ruled that an employee may not bring a claim for money damages (i.e. front or back pay, compensatory damages or punitive damages) against the state. However, it may still be possible to bring a claim against the head of the department of a state agency, in their official capacity, seeking a reasonable accommodation or reinstatement.

Written by Kathy Wilde, April 2001.
Updated by Kathy Wilde March 2002.

APPLICATIONS AND INTERVIEWS: Special Focus on Disability

Finding a job can be a stressful experience under the best of circumstances. But, when you have a disability it can be even more challenging when filling out an application or answering questions during the interview. What are questions that employers can legitimately ask you and what questions are off limits?

The ADA divides the hiring process into two distinct parts: the pre-offer and post-offer stages. Before a conditional offer of employment is made, employers may not make any disabilities related inquiries. Likewise, applicants may not be required to take any medical exams.

Pre-Offer

Employers may not ask disability-related questions before an applicant has been given a conditional offer of employment. A "disability-related" inquiry is one that will likely elicit information regarding the applicant's disability.

• You shouldn't be asked: "What is the nature or severity of your disability?"
• But you could be asked: "Can you describe or demonstrate for me how you would perform the following essential functions of the job?"

• You shouldn't be asked: "Do you need a reasonable accommodation to perform the essential functions of the job?" This would likely elicit information about a disability.
• But you could be asked: "Do you need an accommodation to participate in the application process?"

Inquiries about attendance are permissible in certain circumstances.

• You shouldn't be asked: "How many sick days did you take last year?"
• But you could be asked, "How many Fridays did you miss while on your last job?"

Employers should be very careful when asking about prior drug use. The ADA protects persons who were addicted to drugs (but not individuals with a history of casual or recreational use) who are in or have successfully completed rehabilitation and are not currently using them. It is permissible to ask about prior illegal use of drugs, both prescription drugs and illicit drugs. It is not okay to ask about lawful use of drugs. Nor should employers ask about prior drug addiction.

• You shouldn't be asked, "Are you currently taking or using any drugs?" "Have you ever been addicted to drugs?" "What prescription medicines do you take?"
• But you could be asked, "Are you currently illegally using any drugs?" "Have you ever been convicted for the sale or possession of illegal drugs?"

Some other inquiries that should be avoided prior to making a conditional offer of employment relate to, for instance: medical histories, workers compensation histories, hospitalization, height, or weight. Finally, it is permissible to request documentation from a doctor or rehabilitation counselor when an applicant requests a reasonable accommodation.

In addition to disability-related inquiries, employers may not administer medical exams at this stage of the application process. Some hallmarks of a medical exam are:

• The test is administered by a health care professional or someone trained by a health care professional.
• The results of the test are interpreted by a health care professional or someone trained by a health care professional.
• The test is invasive, e.g. the taking of blood, breath, or urine.
• The test is normally given in a medical setting.
• The test uses medical equipment.
• The test is designed to reveal an impairment or something about physical or mental health.

Examples of screening devices that might be construed as medical exams include:

• Polygraph tests - because they customarily ask the person being examined if he or she is currently taking any medications;
• Psychological tests that reveal mental impairments rather than things about a person's tastes or habits; and
• vision exams.

Drug tests and agility tests, however, may be administered at the pre-offer stage.

Post-Offer

Once an employer makes a bona fide conditional offer of employment, medical exams may be administered and disability-related inquiries may be made. A conditional offer of employment is bona fide when the employer has evaluated and considered all of the relevant non-medical, non-disability-related issues.

Once a conditional offer is made, the employer may secure basic medical information from the applicant and may ask the individual for more information related to the previously provided information.

Employers may not, however, withdraw the conditional offer on the basis of an applicant's disability, unless doing so is job-related and consistent with business necessity.