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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. However, in practice, an employer could still legally discriminate against those with disabilities
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 almost 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 their employer with proof of how the disability ‘substantially limits a major life activity (Americans with Disabilities Act of 1990, 2000).
As a result of the ADA requires that 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 more stringent attendance policy helps both offset and reduce any wrongful termination claims. Frequently, businesses defend themselves against claims of discrimination by contending that the employee was excessively absent from the job such as in the 1996 case of Laurina Price v. S-B Power Tool (Skil). Price, an epileptic, was fired because her absent rate fell just above the three percent threshold set by the company. Approximately half of the absences were due to her disability. Skil claimed Price was “not a ‘qualified individual’ under the ADA because regular attendance was an essential function of her job” (Price, 1996)
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. The ADA was designed to protect the rights of disabled persons, which has but an unintended consequence is that employers have instituted policies that could negatively affect all employees and continue to discriminate within the guidelines of the law.
References
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.
Franke, Ann H. (2006). A Brief Overview of Disability Discrimination in Employment.” Education and Risk Management at United Educators Insurance. Web.
Laurine Price v. Skill (1996) Westlaw. Web.
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