Everyone wants the chance to succeed at their job. Employment offers not only a vital paycheck but also the opportunity to put skills and knowledge to use. A job can give you self-esteem, standing in the community, and the respect of your family and friends. Recognizing this, Congress enacted the Americans with Disabilities Act (ADA) in 1990. The law prohibits discrimination against an individual with a disability and applies across all areas of public life. Public life includes both employment and the hiring process at schools and colleges.
Individuals with disabilities are working successfully in any number of jobs at academic institutions nationwide. But sometimes discrimination rears its ugly head and prevents qualified people from being hired, promoted, or moved into a new position at a school or college. Discrimination may also result in the firing or demotion of a disabled employee at a school or university. Or, in some situations, an academic institution may not make proper accommodations so a disabled employee can do their job. This illegal discrimination against the disabled occurs even though the ADA exists. Regardless of where you are located, if you are disabled and have experienced employment-related discrimination by an academic institution, you should not sit back and accept it. You need to be proactive and enforce your right to a job. You need a qualified attorney who knows the ADA, and has experience fighting for the rights of school employees. You need the Lento Law Firm on your side. The firm's Education Law Team have helped public and private school employees across the country. Call us at 888-535-3686 or contact us online.
What is a Disability Under the ADA?
The ADA says that “disability” means a physical or mental impairment that limits one or more major life activities in a substantial way. Think of this definition as having three parts. First, there is a physical or mental impairment. Then, there are major life activities. Lastly, there is a substantial limitation.
What is an Impairment Under the ADA?
The law defines a physical impairment as any physiological condition or disorder, cosmetic disfigurement, or anatomical loss that affects one or more systems of the body, such as the neurologic or musculoskeletal systems. Bodily systems that can be affected also include the cardiovascular, circulatory, digestive, endocrine, genitourinary, immune, and respiratory systems. The ADA also adds the hemic and lymphatic, and reproductive systems to this list, as well as the skin.
A mental impairment under the ADA is any psychological or mental disorder, such as an intellectual or learning disability or a type of brain dysfunction. The law also includes an emotional or mental illness as a mental impairment. Note that the ADA does not specifically list all of the physical and mental impairments that are covered under the law.
What are Major Life Activities Under the ADA?
Major life activities include, for example, breathing, caring for oneself, communicating, concentrating, doing manual tasks, eating, hearing, interacting with others, learning, performing movements such as lifting and bending, reading, seeing, sitting, sleeping, speaking, standing, thinking, walking, and working.
Bodily functions are also major life activities that may be limited by an impairment, according to the ADA. Bodily functions include the operations of the brain, the bladder, the bowels, and the digestive system. In addition, the law says the operation of the cardiovascular, circulatory, endocrine, genitourinary, immune, hemic and lymphatic, and respiratory systems can be limited by an impairment. Musculoskeletal and neurological functions, reproductive functions, and normal cell growth are major life activities that may be limited by an impairment as well, according to the ADA. The functions of the skin and the special sense organs, which consist of the eyes, ears, nasal passages, and tongue, can also be limited by an impairment.
What Does “Substantially Limits” Mean Under the ADA?
The ADA says the phrase “substantially limits” should be construed broadly. There is no hard and fast rule. To be considered substantially limiting, an impairment does not have to stop or seriously restrict a person from performing a major life activity. An impairment will be a disability if it substantially limits someone's ability to perform a major life activity as compared to most of the general population, according to the law.
It can be confusing to think of impairments and how they can substantially limit major life activities, so here are some examples:
- Blindness substantially limits vision;
- Cancer substantially limits normal cell growth;
- Cerebral palsy substantially limits brain function;
- Deafness substantially limits hearing;
- Diabetes substantially limits endocrine function;
- Epilepsy substantially limits neurological function;
- An intellectual disability or autism substantially limits brain function;
- Missing limbs substantially limit musculoskeletal function;
- Multiple sclerosis substantially limits neurological function; and
- Post-traumatic stress disorder substantially limits brain function.
A Few More Facts on Disabilities Under the ADA
As discussed above, when determining whether someone has a disability under the ADA, the focus is on how an impairment substantially limits a major life activity. The focus is not on what someone can do, earn, or achieve. A person with a learning disability may earn a Ph.D. but may be substantially limited in the major life activity of learning because he or she takes more time and effort to read, write, and learn.
A person who has an impairment may use helpful things such as hearing aids or cochlear implants, low vision devices, medicine, medical equipment, mobility devices, prosthetic limbs, or oxygen therapy equipment, for example. The ADA says these things will not be taken into account to determine whether the impairment substantially limits a major life activity. As an example, someone with a prosthetic leg may be able to walk, but he or she will still be considered disabled because the loss of a limb substantially limits musculoskeletal function.
Further, an impairment that is in remission, or one that flares up on occasion, is still a disability under the ADA if it substantially limits a major life activity when it is active.
The ADA also defines a disability as existing when a person has a record, or history, of having had an impairment. This means the law protects someone who previously had an impairment, such as cancer or a mental illness, but has recovered.
The ADA Prevents Employment Discrimination Against the Disabled
The ADA provides that no employer or employment agency shall discriminate against a qualified individual on the basis of a disability with regard to job application procedures, in employee hiring, advancement, or discharge, in job training, compensation, or in other terms, conditions, and privileges of employment.
An employer, generally, is a business that has 15 or more employees. A school or college, therefore, is most likely an employer under the ADA. A qualified individual is a person who can, with or without reasonable accommodation, do the essential tasks of the job that he or she has or wants. The ADA adds that if an employer has a written description of the job before it advertises for or interviews prospective hires, that description will be evidence of the job's essential tasks.
Here is a more specific list of employment-related activities where an employer is prohibited from discriminating against someone on the basis of a disability:
- Recruitment, advertising, and job application procedures;
- Hiring, upgrading, promoting, awarding tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
- Rates of pay or any other form of compensation and changes in compensation;
- Job assignments and classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
- Leaves of absence, sick leave, or other type of leave;
- Fringe benefits;
- Selection and monetary support for training, including apprenticeships, professional meetings and conferences, and selection for a leave of absence for training; and
- Sponsored activities such as social and recreational programs.
The ADA goes even further in its protections for people with disabilities. The law also prohibits an employer such as a school or college from limiting, segregating, or classifying, on the basis of disability, an employee or job applicant in a way that negatively affects his or her employment opportunities or status.
In addition, an employer cannot take part in a contractual relationship or arrangement that has the effect of subjecting a qualified job applicant or employee with a disability to discrimination. Examples of contractual relationships or arrangements include agreements with employment agencies, organizations providing fringe benefits or training and apprenticeship programs, and collective bargaining agreements with labor unions.
Further, the ADA says an employer such as a school cannot use any standards, criteria, or administration methods that are not necessary for business and have the effect of discriminating on the basis of disability.
The law says an employer, including a school, cannot use any employment tests, qualification standards, or other selection criteria that would tend to screen out a disabled person. This is the rule unless an employer can show that the test, standard, or criteria is job-related for the position at issue and consistent with business needs.
An employer, including a school or college, that administers an employment test to a job applicant or employee with a disability that impairs manual, sensory, or speaking skills must do so in a certain way, according to the ADA. The employer must ensure that the test is set up so the results accurately reflect the applicant or worker's skills and aptitude rather than their impairments.
The ADA even takes its protections for the disabled a few steps further. The law says an employer such as an academic institution cannot exclude or deny equal jobs or benefits to a qualified individual based on that individual's relationship, be it familial, professional, or social, with a person who is known to have a disability.
In addition, as a general rule, an employer cannot ask a job applicant or worker whether he or she has a disability or ask about the type of disability and its severity. The ADA also says an employer cannot have an applicant or an employee undergo a medical examination. There are some exceptions to these specific prohibitions, however.
An employer, including a school, can ask a job applicant about his or her ability to do job-related tasks, and can ask that person to demonstrate how, with or without accommodation, he or she will be able to perform the tasks. An employer is also allowed to require a medical exam for a job applicant after making that person a job offer and can make that offer conditional on the exam results. However, this is allowed only when all new hires in the same job category are subjected to a medical exam regardless of whether they have a disability.
The second exception is as follows. An employer such as a school or college can require an existing employee to undergo a medical exam that is job-related and necessary for the business and can ask an employee about his or her ability to do job-related tasks, according to the ADA. Note that screening for illegal drug use is not considered a medical exam under the law.
One final note on discrimination and the ADA. A religious school or college can give preference to job applicants who are of that particular religion. The religious educational institution can require that all applicants and employees follow the religion's tenets. But, a religious school cannot discriminate on the basis of disability against a qualified individual who meets the religious criteria.
What are Reasonable Accommodations Under the ADA?
One of the biggest protections that the ADA provides for the disabled concerns reasonable accommodations. The law says an employer, such as an academic institution, has to make reasonable accommodations for a qualified disabled individual's known physical or mental limitations. This goes for both employees and job applicants, as long as the accommodation will not pose an undue hardship on the operation of the employer's business.
The law also says an employer cannot deny employment opportunities to a worker or job applicant who is a qualified individual with a disability when that denial is based on having to make a reasonable accommodation.
But what is a reasonable accommodation? It's a change or adjustment to a job itself, the job environment, or the hiring process. A reasonable accommodation permits a disabled person to be hired and to successfully perform their job the same way an individual without a disability can.
With regard to the hiring process, an employer has to make reasonable accommodations so people with disabilities can submit job applications. There are a number of things that can be done. Here are some examples. An employer can put information about available jobs in a place where it can be easily accessed by someone with a mobility issue, and include a TDD phone number to the job listing to make applying accessible to the hearing impaired. Job information can be printed in a large typeface or recorded so someone with limited vision can hear the information. An employer such as a school can also make the online application process accessible to people with disabilities or provide written applications.
For a job interview, an employer can offer an accessible place for the meeting so someone with a mobility limitation can attend, a sign language interpreter to assist a deaf applicant, or a reader to help an applicant with a vision limitation. These are just a few examples.
An employer, including an academic institution, can make reasonable accommodations to the work environment. Access ramps, accessible restrooms, and ergonomic workspaces are examples, as are modified work schedules. An employer may also provide readers and sign language interpreters. Here is a non-exhaustive list of some other reasonable accommodations:
- Adding hand controls or foot pedals to equipment;
- Allowing breaks during the work period;
- Allowing telework;
- Assignment to a light duty position;
- Changes to the workspace layout;
- Making materials available in Braille or large print;
- Modifying light switches;
- Providing keyboard armrests;
- Using closed captioning for computer screen presentations;
- Using screen reader software; and
- Using videophones or telephone amplifiers.
Service Dogs for School Employees Under the ADA
Service animal accommodations are another way that an employer, such as an academic institution, must make their workplace ADA-compliant. The ADA only recognizes dogs as service animals. An employer can allow a service animal to accompany a disabled employee to work, including into housing facilities at public and private universities. Under the ADA, a service dog can be any breed or size and does not need to wear a special vest or other form of identification indicating service. The dog must be trained to perform a task directly related to a person's disability. A service dog may retrieve things for someone who uses a wheelchair or may remind someone with depression of the time to take medicine, for example. The ADA does not consider an emotional support animal, whether a dog or other species, to be a service animal. An emotional support dog is not a service animal because its presence gives the person comfort, and comfort is not a disability-related task.
Parking for School Employees Under the ADA
Accessible parking is another reasonable accommodation an employer such as a school or college can provide. Accessible parking spaces in a lot or garage must be placed close to the entrance to a building. They must also have access aisles so people who use wheelchairs or other mobility aids can get in and out of their vehicles. The ADA has guidelines specifying the proper sizes of accessible parking spaces for cars and vans as well.
A Few More Facts on Reasonable Accommodations Under the ADA
An employer such as an academic institution does not have to offer a reasonable accommodation unless a disabled worker requests one. However, an employer who believes a person with a known disability may need an accommodation can ask that person whether they would like one, according to the ADA. In either situation, the parties should talk about the employee's needs and determine the proper accommodation to be used.
As mentioned above, under the ADA, an employer does not have to offer a reasonable accommodation if doing so would cause undue hardship. The phrase “undue hardship” means the accommodation would be difficult to implement or too expensive given the structure and type of the business and the employer's size and monetary resources. Further, an employer does not have to lower standards of production or quality to make an accommodation. As an additional note, an employer does not have to provide a disabled worker with personal items such as wheelchairs, hearing aids, or eyeglasses. That's why the ADA uses the term “reasonable” when discussing accommodations.
Lastly, the ADA does not require a disabled individual to accept an accommodation. But, if someone rejects an accommodation that is needed so he or she can do their job and, as a result, cannot do the job's essential tasks, that person is no longer considered to be a qualified individual under the ADA.
What Happens if a School Discriminates Against an Employee on the Basis of Disability?
In spite of the ADA's goals, discrimination sometimes takes place. An employer, including an educational institution, may not give a qualified person with a disability a convenient way to apply for a job, or may not interview or hire that person solely because of their disability. Or a school may not follow through on its promise to make a reasonable accommodation for a disabled worker who has asked for one. The school may make excuses concerning money or staffing issues and say its hands are tied. The school may also deny that it knew about someone's disability. Sometimes, an educational institution may fire or demote a qualified disabled staff member for no reason other than their disability. A school or college may also fail to promote a qualified person with a disability while lacking a valid reason for its actions. If someone has a disability, they may find themselves at odds with their academic institution employer in many situations. If you or a family member have experienced employment-related disability discrimination by a school or college, whether public or private, and regardless of the grade levels of the institution, the Lento Law Firm can help. The firm's Education Law Team has experience helping school employees nationwide with ADA issues and other problems that can arise for staff at an academic institution. The Lento Law Firm's attorneys are not afraid to go up against a school to fight for your rights. Call us at 888-535-3686 or contact us online.
