The Americans With Disabilities Act
The ADA, 42 USC 12101 et seq., prohibits discrimination against people with disabilities in employment, public services, public transportation, public accommodations, and telecommunications. The act also protects an individual who suffers discrimination due to that person’s known association or relationship with a disabled person; an individual who has a record of a covered impairment; and an individual who is “regarded as” disabled. 42 USC 12102(1); see, e.g., Doane v City of Omaha, 115 F3d 624, 628 (8th Cir 1997), cert denied, 522 US 1048 (1998) (verdict for police officer applicant who was rejected on basis of glaucoma-induced blindness in one eye upheld based on “perception of disability” even though applicant not in fact disabled). The ADA further prohibits retaliation against an individual for exercising his or her rights under the ADA. 42 USC 12203(a). There are two primary affirmative defenses under the ADA: undue hardship and direct threat.
The ADA Amendments Act of 2008 expands the coverage and protections of the ADA, with the stated intent of restoring the original purpose and scope of the ADA. See §2(b)(1). The ADA Amendments Act expressly overturns a series of Supreme Court decisions that, beginning in 1999, narrowed the definition of what constitutes a “disability” under the ADA. The Act focuses almost entirely on ADA coverage and definitional issues, leaving intact existing statutory language and caselaw concerning other important ADA concepts, such as reasonable accommodation, essential functions, undue hardship, direct threat, and qualified individuals. The EEOC has published new regulations revising its ADA regulations and interpretive guidance in order to implement the ADA Amendments Act. 29 CFR Part 1630.
Although nondisabled individuals may bring claims under some provisions of the ADA, other provisions only protect those with disabilities from discrimination. The plain text of 42 USC 12112(b)(6) describes discrimination as including qualification standards, tests, or other criteria that screen out individuals unless the screening is job related and consistent with business necessity. However, this provision limits its protection to those with disabilities and does not cover a broader class of persons, such as “employees.” Bates v Dura Auto Sys, Inc, 625 F3d 283 (6th Cir 2010). In Bates, a claim by employees who were terminated for use of prohibited substances in legal prescriptions was dismissed because they were not disabled.
What is a Disability nder the ADA?
Disability under the ADA means
- “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 USC 12102(1)(A) (see text at Pub L No 110-325, §4).
- The term major life activity is not limited to those aspects of a person’s life that have a public, economic, or daily character. Bragdon v Abbott, 524 US 624 (1998) (reproduction is major life activity for purposes of ADA).
- Note that while the ADA Amendments Act of 2008 leaves intact the ADA’s three-part definition of which individuals have a “disability,” it also states that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” §2(b). Instead, it instructs that “[t]he definition of a disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of the Act.” §3(4)(A).
Essential Functions of the Job Test
An ADA plaintiff must prove that he or she is capable of performing the “essential functions” of the job, with or without reasonable accommodation. In EEOC v Ford Motor Co, 782 F3d 753, 757 (6th Cir 2015), the Sixth Circuit held that the ADA does not “endow all disabled persons with a job—or job schedule—of their choosing.” The court affirmed Ford’s refusal to allow an employee with irritable bowel syndrome to work from home as needed, up to four days a week, holding that Ford’s business judgment that “regular and predictable on-site attendance [was] essential to [plaintiff’s] highly interactive job” was backed up by Ford’s “papers and practices” as well as plaintiff’s “three past telecommuting failures.” Id. at 757.
Duty to Accommodate
Reasonable accommodation includes, but is not limited to, making facilities accessible and usable; job restructuring; modification of work schedules; adaptation of equipment, examinations, training, or policies; and the provision of readers or interpreters. 42 USC 12111(9). An employer may assert that a particular accommodation constitutes an undue hardship. Whether the accommodation imposes an undue hardship is to be determined by consideration of factors such as the nature and cost of the accommodation, the financial resources of the employer, and the impact of the accommodation on the operation of the employer’s business. 42 USC 12111(10).
Public Accommodations
The public accommodations provisions of the ADA are sweeping. The act requires that, effective in January 1993, all new buildings must be designed and constructed to be readily accessible to persons with disabilities unless the entity can show that accessibility is structurally impracticable. 42 USC 12183(a)(1). Further, with respect to buildings already in existence, access must be designed into an alteration that “affects or could affect the usability of the facility or part thereof.” 42 USC 12183(a)(2). For example, in Smith v Wal-Mart Stores, Inc, 167 F3d 286 (6th Cir 1999), the court held that a disabled person who was injured while using a store rest room that was not handicap accessible could maintain a private right of action for injuries sustained as a result of the store’s failure to conform to the ADA’s public accommodation requirements.
In addition to provisions regarding physical access, the ADA defines discrimination as including the use of eligibility criteria that have the effect of excluding persons with disabilities; the failure to make reasonable modifications in the business’s practices to enable persons with disabilities to use the goods, services, and facilities offered; and the failure to take steps to provide auxiliary aids and services so that disabled persons are not excluded from or treated unequally with respect to the goods and services offered. With respect to architectural and communication barriers, a covered entity is not legally required to remove the barrier if such removal is not readily achievable. 42 USC 12182(b)(2).