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A Cause of Action under the Americans with Disabilities Act

Introduction
Almost a decade ago, Congress, with great fanfare, passed the Americans with Disabilities Act (ADA). The purpose of the ADA is to prevent discrimination against people with disabilities in the workforce, places of public accommodation, and public service by requiring reasonable accommodations be made for their disability. However, despite trying to define many of the terms involved, the ADA left unclear the exact contours of an employer's responsibilities to disabled employees. For instance, when is an accommodation "reasonable," and when is it not? What qualifies a person as "disabled," making him or her subject to the ADA? A conscientious employer seeking to comply with the ADA must know the answers to these questions and many others which are only now being addressed by the courts.

Discrimination Against the Disabled in the Workplace
The ADA applies to all employers who employ fifteen or more people for a minimum of at least twenty weeks. It specifically provides that covered employers cannot discriminate against otherwise qualified individuals with a disability in the application process, hiring, promotion, pay, training, benefits, discharge, or any other condition of employment. Prohibited discrimination includes classifying disabled employees so that their job opportunities are more limited than the job opportunities of nondisabled employees or setting standards that make it harder for disabled employees to compete. To inform employees of their rights under the ADA, employers are required to post in the workplace a notice outlining the rights guaranteed by the ADA.

To begin with, the ADA only applies to persons who meet its definition of "disabled." A person is considered disabled by the ADA if he or she either actually has or is thought to have a physical or mental impairment substantially limiting what the ADA calls a "major life activity." Major life activities are the basic components of any person's life, such as walking, talking, seeing or learning. If an employee has an impairment that substantially limits his or her ability to perform one or more of these activities, the employee is considered disabled by the ADA.

Although the determination of whether a worker is disabled is made on a case-by-case basis, common examples of disabilities include confinement to a wheelchair, blindness, deafness, or a learning disability. The definition of "disability" specifically excludes limitations on major life activities caused by the employee's use of illegal drugs. In determining whether an employee is disabled, the employer should consider whether the use of corrective devices reduces or eliminates the limits on the employee's activities caused by the disability. An example of a corrective device which eliminates the disability is an employee who is hard of hearing but who has normal hearing when wearing a hearing aid; this employee is not considered disabled under the ADA. Finally, to be substantially limited by a disability, the disability must render the employee unable to work in a broad range of jobs. A disability which only affects the employee's ability to perform a few specific jobs is not covered by the ADA. For example, if a pilot seeks a license requiring particularly acute vision, but the applicant is too nearsighted to qualify, the applicant may not be disabled if his or her nearsightedness only disqualifies the applicant from this particular job but does not limit the applicant's ability to perform a broad range of other jobs.

Assuming an employee is disabled under the ADA, an employer has certain responsibilities to the employee to make reasonable accommodations for the employee's disability. Such accommodations often consist of physical changes to the workplace to aid the disabled employee, such as installing ramps for an employee in a wheelchair. Other accommodations may include restructuring the job or its duties to allow the disabled employee to perform the work, such as modifying the work schedule to accommodate the disability or providing the employee with a qualified reader or interpreter. Generally speaking, a reasonable accommodation allows a disabled employee to perform a job in the same manner as a nondisabled employee.

While the ADA applies to all disabled employees of qualified employers, it does allow employers limited latitude in refusing to accommodate the disabled in the workplace. First, if the job requirements and business necessity mean a person with a particular disability cannot perform the job even if the employer makes reasonable accommodations, the employer may refuse to hire the disabled person. An extreme example of this is a blind applicant for the position of airline pilot. The airline could make every reasonable accommodation to allow a blind person to get around in airports and in its airplanes, and could even provide another employee to travel with the blind person to act as his or her "eyes." But even after all of these accommodations have been made, a blind person cannot be a pilot. A pilot needs to be able to see, and sight is a job requirement consistent with the pilot's ability to fly safely. Because sight is a job requirement for a pilot, the airline could refuse to hire the otherwise qualified blind applicant.

An employer may also refuse to accommodate a disabled person if the accommodation required to allow the disabled employee to perform the job is so great that it is unreasonable. The ADA recognizes that, even if accommodation of a particular disability is theoretically possible, the expense or difficulty may render the accommodation extremely impractical. If the employer can show the accommodation necessary constitutes an undue hardship, the ADA does not require the employer to make the accommodation since it is unreasonable.

Determining what makes an accommodation reasonable and when it is an undue hardship depends on the nature of the disability, the accommodation required and the employer's particular situation. Because of the number of factors involved, there are few hard-and-fast rules about what makes an accommodation unreasonable. Generally, an accommodation becomes an undue hardship when it is extremely difficult to put into place or very expensive to implement. The specific factors considered in determining if an accommodation is an undue hardship include the nature of the accommodation required, its cost, and the employer's financial resources, both at the workplace in question and overall. The answer may vary from disability to disability and employer to employer. Clearly, what is a reasonable accommodation for a large multinational corporation with thousands of employees might be unreasonable for a small local company with limited resources.

Conclusion
Because the ADA is a relatively new law, an employer's responsibilities to a disabled employee are constantly evolving. What is clear is that the ADA prohibits discrimination against the disabled in the workplace. If an otherwise qualified disabled person applies for a position, a covered employer cannot hold the disability against the applicant and, if hired, must make reasonable accommodation for the disabled employee. An employer is required to make accommodation unless the accommodation still would not allow the employee to perform the job or if it is an undue hardship on an employer.

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