Quick ADA

The Quick Scoop on the Americans With Disabilities Act

John Hendon

President, The VMP Group, LLC

The ADA is one of the most significant laws ever passed in the United States. It prohibits discrimination based on disability in all employment practices such as job application procedures, hiring, firing, promotions, compensation, and training.

The ADA defines a disability as a physical or mental impairment that substantially limits one more major life activities, a record of having such an impairment, or being regarded as having such an impairment.
However, conditions such as obesity, substance abuse, hair color, and left handedness are not covered.

This is an interesting definition because of the fact that anyone who has a record of having an impairment covered by the ADA is considered in the same manner as someone who has a current disability. It is the same with someone being regarded as having an impairment. How can someone be regarded as being impaired or disabled when they aren’t? Well, as an example, if you have ever seen someone that has been severely burned on their face and hands you may have some questions as to whether the individual is disabled or not. Under the ADA, you must treat that person as if they were disabled because of your concerns that they may have a disability. You would have to consider the individual for a job if they can perform the essential functions of the job, regardless of their appearance.

According to the ADA, an organization must make "reasonable accommodations" to the physical or mental limitations of an individual with a disability who was otherwise qualified unless it would impose an “undue hardship” on the organization’s operation.

In defining reasonable accommodations, it is necessary distinguish between "Essential" and "Marginal" job functions. Essential job functions are the fundamental duties of the position. Marginal job functions are those that may be performed in the job but need not be performed by all holders of the job according to the ADA. Individuals with disabilities cannot be denied employment if they cannot perform marginal job functions. Generally, we find a list of the primary essential functions of the job in the job description and specification. If the function is not listed in the job description and specification, we may have difficulty using it as a defense in a disability case. Therefore, generally we would want to ensure that we list all of the essential functions of the job in the job description and specification documents.

We are:
• Not required to make reasonable accommodations if the applicant or employee does not request it.

• Not required to make reasonable accommodations if applicants don’t meet required qualifications for a job. Not required to lower quality standards or provide personal use items such as glasses or hearing aids to make reasonable accommodations.
• Not required to make reasonable accommodations if to do so would be an undue hardship.

Whether something is an undue hardship is determined by looking at the nature and cost of the accommodation and the overall financial resources of the facility. It should be noted that most accommodations are inexpensive (usually less than $500). However, we must note that an undue hardship may be different for different companies. For instance a small company with only a few million dollars in revenue per year may have an undue burden put upon them based on a relatively low cost accommodation to a disabled individual, while a larger company could not claim undue hardship for the same accommodation.

An example helps here. If we were the owners of the company in a downtown historic district and had an applicant for a job who was wheelchair bound, would we be required to consider that applicant for a job and accommodate the individual by rebuilding our 18th century offices (small doorways and steep staircases)? The answer is most likely no, because of the fact that the accommodation required in a historic district house would require a major rebuilding effort. This effort would likely cost a significant amount of money - an amount that would be unreasonable for the organization to pay. However, if we’re faced with the same circumstances and we are a large company headquartered in the modern building, we would certainly be required to make the reasonable accommodation necessary to allow an individual in a wheelchair to work within the confines of our building.

The biggest problem that employers have with the ADA is the fact that it contains a number of words that can be interpreted in a wide variety of ways. For example, the term “reasonable accommodation” is open to fairly broad interpretation. An “essential function” is another term where essential can be defined in a variety of ways. Because of these “weasel words” in the law, companies have had a very difficult time in applying the ADA in a consistent manner, and as a result have been involved in probably more lawsuits per disabled employee than with any other protected group. Companies have worked for the last fifteen years to get clarification of the meaning of some of these words in the ADA without complete success to this point. However, there is an ongoing effort on the part of businesses to redefine some of the terms in the law so that they can more easily comply.

The VMP Group, LLC Phone:501.952.0530

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