Disability discrimination - Essay Example

Disability Discrimination The American Disabilities Act (ADA) of 1990 was originally intended to allow access to employment for those persons with disabilities at a level equal to what all others enjoy. ADA legislation had a major impact on both the states’ and employer’s awareness level regarding persons with disabilities and their capability to receive access to equal opportunities but the economic impact for those entities remain in question. Apparent inconsistencies between the Act’s goals and its perceived outcome have caused much confusion for employers who believe that the financial burden placed on them is impracticable. The Act was passed with civil rights as its impetus and does not allow divergences of its intention because of employer’s perceptions. This paper will present an overview of the ADA along with its legal, financial and practical implications for employers. It will also describe the methods by which an employer could legally discriminate against those with disabilities and offers remedies that can and are being utilized in an effort to counteract the financial affects of the Act. The ADA is ground-breaking legislation which was crafted “to establish a clear and comprehensive prohibition of discrimination on the basis of disability” (Americans with Disabilities Act of 1990, 2000). It is an extension of the 1964 Civil Rights Act which prohibits discrimination on the basis of race, national origin, religion or gender. The ADA affects those employers with 15 or more employees (Loy & Gebremedhin, 2001). The constitution gives the Congress power to control interstate commerce. It has interpreted the scope of this authority, some may suggest, in a very broad context by, for example, enacting the Civil Rights Act and ADA. Congress reportedly discovered sufficient evidence which supported its deduction that discriminating against those with disabilities by institutions and employers inhibited interstate commerce before it passed the ADA legislation. Congress stated in 1990 that “individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society” (Americans with Disabilities Act of 1990, 2000). Employee disability discrimination concerns the decision making process which negatively affects that person either in whole or in part based on the perceived or actual disability of the employee. An employee is considered a ‘qualified’ individual by the provisions of the ADA if their case meets this qualification. The ADA forbids the discrimination of a qualified individual with respect to the application process, hiring, training, compensation, advancement, dismissal or other issues normally associated with employment. A ‘qualified individual’ is an “individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires” (Loy & Gebremedhin, 2001). The ADA disallows discrimination while requiring employers to provide reasonable accommodations for a person with a disability unless this specific adaptation would cause an excessive financial hardship on the employer or institution. The term disability as defined by the ADA refers to a person afflicted with “a physical or mental impairment that substantially limits a major life activity such as walking, seeing, speaking, or hearing” (Americans with Disabilities Act of 1990, 2000). In addition, the ADA protects those who have had past disabilities and anyone wrongly perceived to have an affliction. A person with a history of impairment is covered under the law such as someone who has recovered fully from a heart attack or cancer and has been treated unfairly because of this whether by word or deed. The ADA also regards someone as having a disability even if they do not have a physical or mental impairment. For example, if a supervisor continues to refer to an employee as ‘crazy,’ the employee may have no mental disability but, because of the constant inference, may be perceived by others to in fact have such a condition. This employee is protected by the ADA from being unfairly treated based upon this perception. Temporary impairments such as a fractured arm or correctable impairments whether those maintained by medication such as high blood pressure or vision problems that can be corrected with eyeglasses is not covered by the law. The ADA definition is narrower than the broadly accepted explanation. An employer should examine only the legal definition when addressing a situation involving disability discrimination in the workplace. When determining if an employee is disabled by the definition of the ADA, employers must not allow themselves to give into assumptions or stereotypes. For example, it is not considered appropriate to inquire, “What are the common symptoms of multiple sclerosis? Or to consider the experiences of a relative, friend, or neighbor who had the disease” (Franke, 2006). An appropriate and relevant question would be, “Exactly what impairments does this particular employee with multiple sclerosis have?” (Franke, 2006). Employers must determine whether a disabled person is qualified for a particular type of employment. The disabled applicant is required by the provisions of the ADA to be capable to execute the necessary tasks associated with the job. For example, a blind person is not a qualified candidate for employment as a movie critic. A disabled person is considered qualified by interpretation of the ADA if they are able to perform the necessary responsibilities that a job requires with the assistance from what would be considered a reasonable amount of adaptation by the employer. A blind person applying for a stenographer’s position could easily be accommodated with a Braille keyboard. An employer should define the primary responsibilities for each job within the company so as to better determine accommodations that can be made for a particular disability. This preparation will help to prevent future lawsuits. An employer is obligated to make reasonable accommodations for an employee or applicant if they are ‘otherwise qualified’ to perform the responsibilities of a position but the ADA provides no definite procedures by which an employer can accurately determine what is considered reasonable. The question of reasonable requires factoring the medical needs of the disabled person with the financial resources of the employer. The courts and employers must consider these factors as they pertain to each individual case. Unlike other discrimination legislation, the ADA dictates that employers and individuals interact. Both are required to establish a person’s eligibility for employment and if the necessary accommodations are reasonable. This dialogue is necessary because most every situation is unique and complex, not as easily identifiable as discrimination based on gender or race. The individual begins this discourse regarding reasonable accommodations by informing the employer of the disability, unless it is obvious. However, the applicant is not required to divulge this information until after they have been offered the job. “It is illegal to ask applicants about disabilities prior to making a conditional offer of employment. An applicant is, however, free to volunteer information at any time” (Franke, 2006). Individuals who are currently employed should approach his employer with proof of how the disability ‘substantially limits a major life activity’ (Americans with Disabilities Act of 1990, 2000). Employers fear that because individuals with disabilities often perform their duties in a different manner than other employees, safety is compromised. Therefore, disabled persons are more likely to be injured adding to the expense employers have already incurred to accommodate them. Studies have shown this to be an accurate assessment by employers. “As a result of the ADA the owners of commercial enterprises bear substantial costs to accommodate individuals with disabilities” (O’Quinn, 1991). As a result of the ADA requirement that the employers may inquire about an applicant’s medical condition only following a job offer, it is impossible to identify and screen candidates considered high-risk to claim a workers’ compensation injury during the interview process. Because employing individuals with disabilities generally entails maintaining a generous sick-leave policy, employers might balance this added cost by reducing the compensation in their sick-leave benefit package. “Employers save money by offering limited paid benefits” (Floyd, 1994). This reduction of benefits not only defers short-term expenditures, this action along with a less flexible attendance policy could help offset any wrongful termination claims. Frequently, businesses defend themselves against claims of discrimination by contending that the employee was excessively absent from the job. “Employers often successfully defend attendance-related terminations under the (ADA) by arguing violations of standard sick leave policies” (Fram, 2000). Of course, this contention must be accompanied by proper documentation. The plaintiffs in discriminatory complaints generally lose their case if they are shown to be in violation of sick-leave policies that are non-discriminatory as they apply to all employees. References Americans with Disabilities Act of 1990. (2000). 42 U.S.C. §§ 12101-12213. Floyd, J.M. (1994). “Americans with Disabilities Act: Impact of Workers’ Compensation – Friend or Foe?” A Primer for the Corporate Insurance Department and Outside Counsel. 17 Am. J. Trial Advoc. Fram, D.K. (2000). Resolving ADA Workplace Questions: How Courts and Enforcement Agencies are Dealing with Evolving Employment Issues. 8th Ed. Washington, DC: National Employment Law Institute. Franke, Ann H. (2006). A Brief Overview of Disability Discrimination in Employment.” Education and Risk Management at United Educators Insurance. Retrieved October 7, 2006 from < http://www.acenet.edu/resources/chairs/docs/franke.pdf> Loy, Beth A. & Gebremedhin, Tesfa G. (2001). “Disability Legislation: An Empirical Analysis of Employer Cost.” West Virginia: West Virginia University. O’Quinn, R.P. (August 9, 1991). “The Americans with Disabilities Act: Time for Amendments.” (Policy Analysis No. 158). District of Columbia: Cato Institute. Read More