RIGHTS OF THE DISABLED IN THE WORKPLACE
UNDER STATE AND FEDERAL LAW
MGT 380 NOTES
I.
FEDERAL LAWS
A. ADA (Title I)
1. Covered employers may not discriminate against “qualified” individuals
with a disability in employment actions.
2. Covered employers must provide “reasonable accommodation” to applicants or
employees with a disability unless it would impose an “undue hardship.”
3. Private sector employers with 15 or more employees are covered.
4. States as employers are immune from liability under ADA (Board of Trustees
v. Garrett [2001]). State anti-disability protections apply.
5. Title III of ADA covers private sector offering “public accommodation:” (e.g.
PGA v. Martin [2001]).
a. e.g. if hosting a job fair, offering a training, etc.: must “reasonably
accommodate” those attending.
b. Title III governed by U.S. Department of Justice.
6. EEOC: guidance and enforcement for Title I.
B. Rehabilitation Act of 1973
1. Federal sector as employer and provider of “public accommodation” must
provide “reasonable accommodation.”
2. 1992 amendments: language changed to reflect ADA.
3. Affirmative action requirements for federal sector employers and contractors.
II.
CALIFORNIA FEHA
A. “Prohibited factor” includes disability
B. DFEH: guidance and enforcement
III.

WHAT IS A “DISABILITY?”
A.
ADA MEANING OF “DISABILITY” (III A)
1. Medically recognized physical or mental impairment that
2. “substantially limits a major life activity.”
NOT ALL IMPAIRMENTS ARISE TO A ‘DISABILITY’ UNDER ADA.
Whether an individual has a disability is decided on a case-by-case basis:
e.g. not everyone with carpel tunnel syndrome has a “disability.”
a. individual must have an impairment that prevents or severely restricts
engaging in “activities that are of central importance to most people’s
daily lives.”(Toyota Motor Manufacturing v. Williams [2002]).
b. specific job-related tasks not a “major life activity” like brushing teeth,
doing laundry, etc. (O’Connor opinion)
3. What are the “impairments” covered?
a. list given in ADA is not exhaustive
b. includes alcoholism, facial disfigurement, learning disabilities, clinical
depression, and drug addiction
c. does not include current illegal use of drugs or abuse of alcohol.
4. “substantial limitation” and “mitigating measures”
a. “mitigating measures” are medication, eyeglasses, devices, etc. that
lessen impact of impairment on daily life
b. Whether the impairment is a “disability” will be determined in light of
mitigating measures. (Sutton v. United Airlines [1999]).
c. FEHA treats this issue differently. [See III B below]
B.
1.
2.
3.
IV.
FEHA
Under recent amendment: disability is defined as a medically recognized
physical or mental impairment that “limits” a major life activity (deleted
the word “substantially”).
Recent amendment regarding “mitigating measures:” not considered in
determining whether an individual has a “disability.” (e.g. how well does
s/he see without his eyeglasses? What would his/her condition be like
without the medication?)
Considers AIDS/HIV “positive” status as a disability.
WHO IS PROTECTED FROM DISABILITY DISCRIMINATION?
A.
One with a disability as defined under statute
B.
One with a record of such an impairment
a. e.g. employee is a survivor of a brain tumor
C.
One who is regarded as having such an impairment
a. e.g. employee is demoted because supervisor believes s/he is an
alcoholic.
D.
EEOC 12/2000 Enforcement Guidance: ADA applies to Contingent
Workers placed with Employers by Staffing Firms.
a. duty to reasonably accommodate workers on job jointly held by staffing
firm and employer.
b. cannot discriminate in testing and placement.
E.
Individual must be “qualified:”
1. has the required education, experience, skills and abilities for the job
2. able to perform the “essential job functions” with or without
“reasonable accommodation.”
a. what are the expected outcomes of the job?
b. what are some methods of “reasonable accommodation” for job?
V.
PRE-EMPLOYMENT INQUIRIES
A. Pre-offer: Do not make any disability-related inquiries or require medical
examinations.
1. ADA allows employer to ask whether applicant will need a reasonable
accommodation for the job if the disability is “obvious” or if the applicant
voluntarily discloses the disability.
2. FEHA: California employer may not make such inquiries.
B. Pre-offer “acceptable” inquiries under ADA and FEHA:
1. Applicant’s ability to perform specific job-related tasks.
2. Agility or fitness tests and drug testing: NOT considered “medical
exams.”
C. Post-offer (conditional job offer given): May ask disability-related questions
and conduct medical examinations.
1. Must be uniformly applied to all applicants.
2. Results must be treated as “confidential medical records.”
3. ADA: post-offer medical exams need not be job-related.
4. FEHA: post-offer medical exams must be directly related to and
pertinent to the job, or directly related to whether an individual would
endanger others in the job.
VI.
THE DUTY OF REASONABLE ACCOMMODATION
A. In pre-employment testing
1. Must provide reasonable accommodation to a qualified applicant with a
disability.
2. May require the applicant to provide their own accommodation (e.g.
special chair, software etc.) if it creates an “undue hardship” for employer.
B. Examples of reasonable accommodation in employment:
1. Shifting marginal job duties
2. Changing work shifts
3. Providing leave for medical care
4. Accommodating work schedules
5. Relocating the work area
6. Providing mechanical or electrical aids
C. Determining “undue hardship”
1. Do not need to create a new job position.
2. Do not need to transfer individual to an available position for which
s/he not qualified.
3. “prohibitively expensive:” calculate available tax credits.
4. What if requested accommodation for transfer would bypass normal
seniority system for job placement?
a. U.S.Airways v. Barnett (2002): U.S. Supreme Court:under
normal circumstances, employer will not be required to bypass a
bona fide seniority system to provide requested accommodation.
VII.
DISTINCTION BETWEEN STATE DISABILITY BENEFITS AND ANTIDISCRIMINATION PROTECTIONS
A. Qualifying for either “total” or “temporary” disability does not necessarily lead
to protection under ADA or FEHA.
VIII. EMPLOYERS’ DEFENSES TO ADA/FEHA DISABILITY
DISCRIMINATION CLAIMS
A. Valid Business Reason
B. Undue Hardship
C. Direct threat to health and safety of others
1. substantial risk of harm that
2. cannot be reasonably accommodated
e.g. TB Chef – reasonably accommodated? Probably not.
e.g. AIDS worker in hospital: Universal precautions taken. However, invasive surgery
may not be possible
D. BFOQ is not a defense under ADA
1. Avoid stereotypes and presumptions
2. case-by-case determination of disability and reasonable
accommodation.