THE AMERICANS WITH DISABILITIES ACT: YOUR RESPONSIBILITIES AS AN EMPLOYER
by the U.S. Equal Employment Opportunity Commission (1991)
The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to
discriminate in employment against a qualified individual with a
disability. The ADA also outlaws discrimination against individuals with
disabilities in State and local government services, public accommodations,
transportation and telecommunications. This booklet explains the part of
the ADA that prohibits job discrimination. This part of the law is
enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and
State and local civil rights enforcement agencies that work with the
ARE YOU COVERED?
Job discrimination against people with disabilities is illegal if practiced
state and local governments,
labor organizations, and
The part of the ADA enforced by the EEOC outlaws job discrimination by: all
employers, including state and local government employers, with 25 or more
employees after July 26, 1992, and all employers, including state and local
government employers, with 15 or more employees after July 26, 1994.
Another part of the ADA, enforced by the U.S. Department of Justice (DOJ),
prohibits discrimination in state and local government programs and
activities, including job discrimination by all state and local
governments, regardless of the number of employees, after January 26, 1992.
Because the ADA gives responsibilities to both EEOC and DOJ for employment
by state and local governments, these agencies will coordinate the federal
enforcement effort. In addition, since some private and governmental
employers are already covered by nondiscrimination and affirmative action
requirements under the Rehabilitation Act of 1973, EEOC, DOJ, and the
Department of Labor also will coordinate the enforcement effort under the
ADA and the Rehabilitation Act.
WHAT EMPLOYMENT PRACTICES ARE COVERED?
The ADA makes it unlawful to discriminate in all employment practices such
promotion job assignments
all other employment related activities.
The ADA prohibits an employer from retaliating against an applicant or
employee for asserting his rights under the ADA. The Act also makes it
unlawful to discriminate against an applicant or employee, whether disabled
or not, because of the individual's family, business, social or other
relationship or association with an individual with a disability.
WHO IS PROTECTED?
Title I of the ADA protects qualified individuals with disabilities from
employment discrimination. Under the ADA, a person has a disability if he
has a physical or mental impairment that substantially limits a major life
activity. The ADA also protects individuals who have a record of a
substantially limiting impairment, and people who are regarded as having a
substantially limiting impairment.
To be protected under the ADA, an individual must have, have a record of,
or be regarded as having a substantial, as opposed to a minor, impairment.
A substantial impairment is one that significantly limits or restricts a
major life activity such as hearing, seeing, speaking, breathing,
performing manual tasks, walking, caring for oneself, learning or working.
An individual with a disability must also be qualified to perform the
essential functions of the job with or without reasonable accommodation, in
order to be protected by the ADA. This means that the applicant or
employee must: satisfy your job requirements for educational background,
employment experience, skills, licenses, and any other qualification
standards that are job related; and be able to perform those tasks that are
essential to the job, with or without reasonable accommodation.
The ADA does not interfere with your right to hire the best qualified
applicant. Nor does the ADA impose any affirmative action obligations.
The ADA simply prohibits you from discriminating against a qualified
applicant or employee because of her disability.
HOW ARE ESSENTIAL FUNCTIONS DETERMINED?
Essential functions are the basic job duties that an employee must be able
to perform, with or without reasonable accommodation. You should carefully
examine each job to determine which functions or tasks are essential to
performance. (This is particularly important before taking an employment
action such as recruiting, advertising, hiring, promoting or firing).
Factors to consider in determining if a function is essential include:
whether the reason the position exists is to perform that function, the
number of other employees available to perform the function or among whom
the performance of the function can be distributed, and the degree of
expertise or skill required to perform the function. Your judgment as to
which functions are essential, and a written job description prepared
before advertising or interviewing for a job will be considered by EEOC as
evidence of essential functions. Other kinds of evidence that EEOC will
* actual work experience of present or past employees in the job,
* time spent performing a function,
* consequences of not requiring that an employee perform a function, and
* terms of a collective bargaining agreement.
WHAT ARE MY OBLIGATIONS TO PROVIDE REASONABLE ACCOMMODATIONS?
Reasonable accommodation is any change or adjustment to a job or work
environment that permits a qualified applicant or employee with a
disability to participate in the job application process, to perform the
essential functions of a job, or to enjoy benefits and privileges of
employment equal to those enjoyed by employees without disabilities. For
example, reasonable accommodation may include:
* acquiring or modifying equipment or devices,
* job restructuring,
* part-time or modified work schedules,
* reassignment to a vacant position,
* adjusting or modifying examinations, training materials or policies,
* providing readers and interpreters, and
* making the workplace readily accessible to and usable by people with
Reasonable accommodation also must be made to enable an individual with a
disability to participate in the application process, and to enjoy benefits
and privileges of employment equal to those available to other employees.
It is a violation of the ADA to fail to provide reasonable accommodation to
the known physical or mental limitations of a qualified individual with a
disability, unless to do so would impose an undue hardship on the operation
of your business. Undue hardship means that the accommodation would
require significant difficulty or expense.
WHAT IS THE BEST WAY TO IDENTIFY A REASONABLE ACCOMMODATION?
Frequently, when a qualified individual with a disability requests a
reasonable accommodation, the appropriate accommodation is obvious. The
individual may suggest a reasonable accommodation based upon her own life
or work experience. However, when the appropriate accommodation is not
readily apparent, you must make a reasonable effort to identify one. The
best way to do this is to consult informally with the applicant or employee
about potential accommodations that would enable the individual to
participate in the application process or perform the essential functions
of the job. If this consultation does not identify an appropriate
accommodation, you may contact the EEOC, state or local vocational
rehabilitation agencies, or state or local organizations representing or
providing services to individuals with disabilities. Another resource is
the Job Accommodation Network (JAN). JAN is a free consultant service that
helps employers make individualized accommodations. The telephone number
WHEN DOES A REASONABLE ACCOMMODATION BECOME AN UNDUE HARDSHIP?
It is not necessary to provide a reasonable accommodation if doing so would
a use an undue hardship. Undue hardship means that an accommodation would
be unduly costly, extensive, substantial or disruptive, or would
fundamentally alter the nature or operation of the business. Among the
factors to be considered in determining whether an accommodation is an
undue hardship are the cost of the accommodation, the employer's size,
financial resources and the nature and structure of its operation.
If a particular accommodation would be an undue hardship, you must try to
identify another accommodation that will not pose such a hardship. If cost
causes the undue hardship, you must also consider whether funding for an
accommodation is available from an outside source, such as a vocational
rehabilitation agency, and if the cost of providing the accommodation can
be offset by state or federal tax credits or deductions. You must also
give the applicant or employee with a disability the opportunity to provide
the accommodation or pay for the portion of the accommodation that
constitutes an undue hardship.
CAN I REQUIRE MEDICAL EXAMINATIONS OR ASK QUESTIONS ABOUT AN INDIVIDUAL'S
It is unlawful:
* to ask an applicant whether she is disabled or about the nature or
severity of a disability, or
* to require the applicant to take a medical examination before making a
You can ask an applicant questions about ability to perform job-related
functions, as long as the questions are not phrased in terms of a
disability. You can also ask an applicant to describe or to demonstrate
how, with or without reasonable accommodation, the applicant will perform
After a job offer is made and prior to the commencement of employment
duties, you may require that an applicant take a medical examination if
everyone who will be working in the job category must also take the
examination. You may condition the job offer on the results of the medical
examination. However, if an individual is not hired because a medical
examination reveals the existence of a disability, you must be able to show
that the reasons for exclusion are job related and necessary for conduct of
your business. You also must be able to show that there was no reasonable
accommodation that would have made it possible for the individual to
perform the essential job functions.
Once you have hired an applicant, you cannot require a medical examination
or ask an employee questions about disability unless you can show that
these requirements are job related and necessary for the conduct of your
business. You may conduct voluntary medical examinations that are part of
an employee health program.
The results of all medical examinations or information from inquiries about
a disability must be kept confidential, and maintained in separate medical
files. You may provide medical information required by state workers'
compensation laws to the agencies that administer such laws.
DO INDIVIDUALS WHO USE DRUGS ILLEGALLY HAVE RIGHTS UNDER THE ADA?
Anyone who is currently using drugs illegally is not protected by the ADA
and may be denied employment or fired on the basis of such use. The ADA
does not prevent employers from testing applicants or employees for current
illegal drug use, or from making employment decisions based on verifiable
results. A test for the illegal use of drugs is not considered a medical
examination under the ADA; therefore, it is not a prohibited pre-employment
medical examination, and you will not have to show that the administration
of the test to employees is job related and consistent with business
necessity. The ADA does not encourage, authorize or prohibit drug tests.
HOW WILL THE ADA BE ENFORCED AND WHAT ARE THE AVAILABLE REMEDIES?
The provisions of the ADA which prohibit job discrimination will be
enforced by the U.S. Equal Employment Opportunity Commission. After July
26, 1992, individuals who believe they have been discriminated against on
the basis of their disability can file a charge with the Commission at any
of its offices located throughout the United States. A charge of
discrimination must be filed within 180 days of the discrimination, unless
there is a state or local law that also provides relief for the
discrimination on the basis of disability. In most cases where there is
such a law, the complainant has 300 days to file a charge.
The Commission will investigate and initially attempt to resolve the charge
through conciliation, following the same procedures used to handle charges
of discrimination filed under Title VII of the Civil Rights Act of 1964.
The ADA also incorporates the remedies contained in Title VII. These
remedies include hiring, promotion, reinstatement, back pay, and attorney's
fees. Reasonable accommodation is also available as a remedy under the ADA.
HOW WILL EEOC HELP EMPLOYERS WHO WANT TO COMPLY WITH THE ADA?
The Commission believes that employers want to comply with the ADA, and
that if they are given sufficient information on how to comply, they will
do so voluntarily.
Accordingly, the Commission will conduct an active technical assistance
program to promote voluntary compliance with the ADA. This program will be
designed to help employers understand their responsibilities and assist
people with disabilities to understand their rights and the law.
In January 1992, EEOC will publish a Technical Assistance Manual, providing
practical application of legal requirements to specific employment
activities, with a directory of resources to aid compliance. EEOC will
publish other educational materials, provide training on the law for
employers and for people with disabilities, and participate in meetings and
training programs of other organizations. EEOC staff also will respond to
individual requests for information and assistance. The Commission's
technical assistance program will be separate and distinct from its
enforcement responsibilities. Employers who seek information or assistance
from the Commission will not be subject to any enforcement action because
of such inquiries.
The Commission also recognizes that differences and disputes about the ADA
requirements may arise between employers and people with disabilities as a
result of misunderstandings. Such disputes frequently can be resolved more
effectively through informal negotiation or mediation procedures, rather
than through the formal enforcement process of the ADA. Accordingly, EEOC
will encourage efforts to settle such differences through alternative
dispute resolution, providing that such efforts do not deprive any
individual of legal rights provided by the statute.
ADDITIONAL QUESTIONS AND ANSWERS ON THE AMERICANS WITH DISABILITIES ACT
Q. What is the relationship between the ADA and the Rehabilitation Act of
A. The Rehabilitation Act of 1973 prohibits discrimination on the basis
of handicap by the federal government, federal contractors and by
recipients of federal financial assistance. If you were covered by the
Rehabilitation Act prior to the passage of the ADA, the ADA will not affect
that coverage. Many of the provisions contained in the ADA are based on
Section 504 of the Rehabilitation Act and its implementing regulations. If
you are receiving federal financial assistance and are in compliance with
Section 504, you are probably in compliance with the ADA requirements
affecting employment except in those areas where the ADA contains
additional requirements. Your nondiscrimination requirements as a federal
contractor under Section 503 of the Rehabilitation Act will be essentially
the same as those under the ADA; however, you will continue to have
additional affirmative action requirements under Section 503 that do not
exist under the ADA.
Q. If I have several qualified applicants for a job, does the ADA require
that I hire the applicant with a disability?
A. No. You may hire the most qualified applicant. The ADA only makes it
unlawful for you to discriminate against a qualified individual with a
disability on the basis of disability.
Q. One of my employees is a diabetic, but takes insulin daily to control
his diabetes. As a result, the diabetes has no significant impact on his
employment. Is he protected by the ADA?
A. Yes. The determination as to whether a person has a disability under
the ADA is made without regard to mitigating measures, such as medications,
auxiliary aids and reasonable accommodations. If an individual has an
impairment that substantially limits a major life activity, she is
protected under the ADA, regardless of the fact that the disease or
condition or its effects may be corrected or controlled.
Q. One of my employees has a broken arm that will heal but is temporarily
unable to perform the essential functions of his job as a mechanic. Is
this employee protected by the ADA?
A. No. Although this employee does have an impairment, it does not
substantially limit a major life activity if it is of limited duration and
will have no long term effect.
Q. Am I obligated to provide a reasonable accommodation for an individual
if I am unaware of her physical or mental impairment?
A. No. An employer's obligation to provide reasonable accommodation
applies only to known physical or mental limitations. However, this does
not mean that an applicant or employee must always inform you of a
disability. If a disability is obvious, e.g., the applicant uses a
wheelchair, the employer "knows" of the disability even if the applicant
never mentions it.
Q. How do I determine whether a reasonable accommodation is appropriate
and the type of accommodation that should be made available?
A. The requirement generally will be triggered by a request from an
individual with a disability, who frequently can suggest an appropriate
accommodation. Accommodations must be made on a case-by-case basis,
because the nature and extent of a disabling condition and the requirements
of the job will vary. The principal test in selecting a particular type of
accommodation is that of effectiveness, i.e., whether the accommodation
will enable the person with a disability to perform the essential functions
of the job. It need not be the best accommodation, or the accommodation
the individual with a disability would prefer, although primary
consideration should be given to the preference of the individual involved.
However, as the employer, you have the discretion to choose between
effective accommodations, and you may select one that is least expensive or
easier to provide.
Q. When must I consider reassigning an employee with a disability to
another job as a reasonable accommodation?
A. When an employee with a disability is unable to perform her present
job even with the provision of a reasonable accommodation, you must
consider reassigning the employee to an existing position that she can
perform with or without a reasonable accommodation. The requirement to
consider reassignment applies only to employees and not to applicants. You
are not required to create a position or to bump another employee in order
to create a vacancy. Nor are you required to promote an employee with a
disability to a higher level position.
Q. What if an applicant or employee refuses to accept an accommodation
that I offer?
A. The ADA provides that an employer cannot require a qualified
individual with a disability to accept an accommodation that is neither
requested nor needed by the individual. However, if a necessary reasonable
accommodation is refused, the individual may be considered not qualified.
Q. If our business has a fitness room for its employees, must it be
accessible to employees with disabilities?
A. Yes. Under the ADA, workers with disabilities must have equal access
to all benefits and privileges of employment that are available to
similarly situated employees without disabilities. The duty to provide
reasonable accommodation applies to all non-work facilities provided or
maintained by you for your employees. This includes cafeterias, lounges,
auditoriums, company-provided transportation and counseling services. If
making an existing facility accessible would be an undue hardship, you must
provide a comparable facility that will enable a person with a disability
to enjoy benefits and privileges of employment similar to those enjoyed by
other employees, unless this would be an undue hardship.
Q. If I contract for a consulting firm to develop a training course for
my employees, and the firm arranges for the course to be held at a hotel
that is inaccessible to one of my employees, am I liable under the ADA?
A. Yes. An employer may not do through a contractual or other
relationship what it is prohibited from doing directly. You would be
required to provide a location that is readily accessible to, and usable by
your employee with a disability unless to do so would create an undue
Q. What are my responsibilities as an employer for making my facilities
A. As an employer, you are responsible under Title I of the ADA for
making facilities accessible to qualified applicants and employees with
disabilities as a reasonable accommodation, unless this would cause undue
hardship. Accessibility must be provided to enable a qualified applicant
to participate in the application process, to enable a qualified individual
to perform essential job functions and to enable an employee with a
disability to enjoy benefits and privileges available to other employees.
However, if your business is a place of public accommodation (such as a
restaurant, retail store or bank) you have different obligations to provide
accessibility to the general public, under Title III of the ADA. Title III
also will require places of public accommodation and commercial facilities
(such as office buildings, factories and warehouses) to provide
accessibility in new construction or when making alterations to existing
structures. Further information on these requirements may be obtained from
the U.S. Department of Justice, which enforces Title III. (See page 16).
Q. Under the ADA, can I refuse to hire an individual or fire a current
employee who uses drugs illegally?
A. Yes. Individuals who currently use drugs illegally are specifically
excluded from the ADA's protections. However, the ADA does not exclude
persons who have successfully completed or are currently in a
rehabilitation program and are no longer illegally using drugs, and persons
erroneously regarded as engaging in the illegal use of drugs.
Q. Does the ADA cover people with AIDS?
A. Yes. The legislative history indicates that Congress intended the ADA
to protect persons with AIDS and HIV disease from discrimination.
Q. Can I consider health and safety in deciding whether to hire an
applicant or retain an employee with a disability?
A. The ADA permits an employer to require that an individual not pose a
direct threat to the health and safety of the individual or others in the
work-place. A direct threat means a significant risk of substantial harm.
You cannot refuse to hire or fire an individual because of a slightly
increased risk of harm to himself or others. Nor can you do so based on a
speculative or remote risk. The determination that an individual poses a
direct threat must be based on objective, factual evidence regarding the
individual's present ability to perform essential job functions. If an
applicant or employee with a disability poses a direct threat to the health
or safety of himself or others, you must consider whether the risk can be
eliminated or reduced to an acceptable level with a reasonable
Q. Am I required to provide additional insurance for employees with
A. No. The ADA only requires that you provide an employee with a
disability equal access to whatever health insurance coverage you provide
to other employees. For example, if your health insurance coverage for
certain treatments is limited to a specified number per year, and an
employee, because of a disability, needs more than the specified number,
the ADA does not require that you provide additional coverage to meet that
employee's health insurance needs. The ADA also does not require changes
in insurance plans that exclude or limit coverage for pre-existing
Q. Does the ADA require that I post a notice explaining its requirements?
A. The ADA requires that you post a notice in an accessible format to
applicants, employees and members of labor organizations, describing the
provisions of the Act.
EEOC will provide employers with a poster summarizing these and other
federal legal requirements for nondiscrimination. EEOC will also provide
guidance on making this information available in accessible formats for
people with disabilities.
For more specific information about ADA requirements affecting employment
Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507
(202) 663-4900 (Voice) (800) 800-3302 (TDD)
(202) 663-4494 (TDD for 202 Area Code)
For more specific information about ADA requirements affecting public
accommodations and state and local government services contact:
Department of Justice
Office on the Americans with Disabilities Act
Civil Rights Division
P.O. Box 66118
Washington, DC 20035-6118
(202) 514-0301 (Voice) (202) 514-0381 (TDD)
(202) 514-6193 (Electronic Bulletin Board)
For more specific information about requirements for accessible design in
new construction and alterations contact:
Architectural and Transportation Barriers
1111 18th Street, NW Suite 501
Washington, DC 20036
800-USA-ABLE 800-USA-ABLE (TDD)
For more specific information about ADA requirements affecting
Department of Transportation
400 Seventh Street, SW
Washington, DC 20590
(202) 366-9305 (202) 755-7687 (TDD)
For more specific information about ADA requirements for telecommunications
Federal Communications Commission
1919 M Street, NW
Washington, DC 20554
(202) 632-7260 (202) 632-6999 (TDD)
For more specific information about federal disability-related tax credits
and deductions for business contact:
Internal Revenue Service
Department of the Treasury
1111 Constitution Avenue, NW
Washington, DC 20044
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