daReasonable Accommodation in the Work Place Under ADAbyJulie RobertsComp 1113Section 12-041Instructor Joy CleaverDecember 2, 1996There may be as many as one thousand different disabilities that affectover forty-three million Americans. Of all the laws and regulations governingthe treatment of those Americans the American with Disabilities Act (ADA) is themost recent major law.
It was passed in 1990 and although it is spelled out ina technical ADA manual that is several hundred pages in length. Two of ADA’stwo major sections, Titles II and III concern the operation of state and localgovernment and places of public accommodation. They require new public andcommercial facilities to be accessible to people with disabilities. Modifications to existing facilities need to be made only if the cost is”readily achievable” and does not cause an undue financial or administrativeburden. This essay will concentrate on Title I, the employment aspects of thelaw. This section forbids employment discrimination against people withdisabilities who are able to perform the essential functions of the job with orwithout reasonable accommodation.
This definition poses three main questions: Who is considered disabled?What is an essential function of a job? What is considered ReasonableAccommodation?To be protected under the ADA an individual must have a physical ormental impairment that substantially affects one or more major life activities. The impairment may not be due to environmental, cultural, or economicdisadvantages. For example a person who cannot read because they have dyslexiais considered disabled but a person who cannot read because they dropped out ofschool is not. In addition persons who are perceived to be disabled areprotected by ADA. For example, if a person were to suffer a heart attack, whenhe tries to return to work the boss might be scared the workload will be toomuch and refuse to let him come back.
The employer would be in violation of theADA because he perceives the employee as disabled and is discriminating based onthat perception. Two classes that are explicitly excluded from protection underADA are those individuals whose current use of alcohol or illegal drug isaffecting their job performance. However those who are recovering from theirformer use of either alcohol or drugs are covered. The Equal Employment Opportunity Commission (EEOC), the federal agencyresponsible for enforcing the ADA and other EEO laws that apply to most publicand private employers, separates job duties into two categories: essential andmarginal.
Essential functions are those duties that each person in a certainposition must do or must be able to do to be an effective employee. Marginalfunctions are duties that are required of only some employees or are notcritical to job performance. The ADA requires that employers make decisionsabout applicants with disabilities solely on the basis oftheir ability to perform essential job functions. Reasonable accommodations are the actions taken to accommodate the knowndisabilities of applicants or employees so that disabled persons can enjoy equalemployment opportunities. Since it is not generally acceptable for a potentialemployer to ask about a disability or conduct test such as HIV test to look fordisabilities, it is the responsibility of the applicant or employee to informthe employer of the disability and needed accommodation.
At that point theemployer must make “reasonable accommodation for the known disability. Anemployer may not deny employment in order to avoid providing the reasonableaccommodation unless it would cause an undue hardship. Even then the applicantor employee should be given the option of providing accommodation himself. The employment provisions began to be enforced for business with 25 or moreemployees on July 26, 1992.
This affected approximately 264,000 employers. Thesecond phase of the employment provision went into affect July 26, 1994, and wasimplemented for the approximately 666,000 U. S. employers with 15 or moreemployees.
Many opponents of the ADA suggested that the law would cost smallbusinesses too much. They contended that the legislation would backlog thecourts with lawsuits from scorned job applicants. However this has not been thecase. Over eighty percent of the discrimination complaints filed with the EEOChave been entered by current employees who claim a prior disability or recentlydisabled workers who contend that their employers have not reasonablyaccommodated their needs under the law.
According to EEOC records the mostcommon type of disabilities suffered by workers who claim employmentdiscrimination is back problems, which account for about eighteen percent ofcomplaints. Mental illness has the next largest portion of complaints, makingup about ten percent. It is followed by heart trouble, neurological disorders,and diabetes. Only around twenty percent of all complaints filed argue that theemployer failed to provide them with reasonable accommodations for their jobs. Ten percent of compla ints received claim that they have unfairly disciplinedbecause of their disability, while nearly four percent contend they have beendenied rightful benefits. Although the ADA was passed to bring disabled peopleinto the mainstream, these numbers show that most of the complaints filed havenot been what would traditionally be called handicapped people.
In fact onlysix percent of all the actions filed during the first three years the law was inforce were filed by the blind and the deaf. As of November 1994 two-thirds of all severely disabled adults remainunemployed, the same number as when ADA was passed in 1991. Many expertsbelieve that people with traditional disabilities are not exploiting the law asexpected, partly because many fear losing comprehensive medical benefits fromprograms like Medicaid. “Most of us are scared to death to get a job and loseout on poverty-based health care,” said Justin Dart, former chairperson of thePresident’s Committee on Employment of People with Disabilities. Meanwhile, theADA has armed less severely disabled workers with a law that is broad and vague. The cost of “reasonable accommodation” has been a controversial topicsince the bill’s inception.
Many feared it would force many small businessesunder or at least add another barrier to entry for small business. In oneexample a Denver restaurant owner paid thousands of dollars in additionalconstruction cost, legal fees, and fines to comply with the ADA. By the timehe was finished these additional expenses amounted to more than half theoriginal cost of opening the business. This is however by no means the norm. To the contrary, studies show that costs of installing required accommodationsaverage less than one percent during construction.
If the job had been doneright at the outset, none of the additional expenses would have been incurred,according to the former Democratic representative from California who was theprinciple author of the ADA. In fact according to a two year survey from theJob Accommodations Network at West Virginia University, two-thirds ofrespondents said their accommodations cost less than $500, and only four percentsaid the accommodations cost more that $5000. The survey also reported thatbusiness persons estimated they get back $30 in benefits such as increasedproductivity for every dollar they spend. Over half of the sixty-one thousandbusinesses that participated in this survey last year had less than a thousandemployees. Experts agree that a proactive and collaborative approach is the bestway to accommodate workers with disabilities and thereby avoid litigation.
Since the first step is for the employee or applicant to identify himself asdisabled, the employer is not obligated to consider or provide any kind ofaccommodation until that identification is made. The request should be made inwritten form. At that point the individual and the employer collaborate inidentifying the barriers that limit the employee’s ability to perform essentialjob functions. There are standardized surveys that may assist in determiningthe employee’s existing or potential accommodation needs.
One example is theWork Experience Survey, which is a structured interview that enables respondentsto determine career adjustments and advancements in a variety of areas. Nextthe employer should identify a variety of accommodations, using the person withthe disability as a resource. The alternatives are the considered and employerdetermines which would impose fewest economic hardships, considering theemployee’s preference when two equivalent accommodations have been identified. The chosen accommodation is then implemented.
As with any company policy, it isimportant to document it and provide for ongoing reviews. Another importantfactor is to make sure there is a clear channel of communication with thedisabled person for addressing future needs. According to an article in HR Focus there are some steps employers cantake in designing work areas to easily accommodate employees. Some of thesuggestions include: Use panel systems so that work spaces can be easilymodified and work surface heights can be raised or lowered as needed. Installelectronically controlled work surfaces and tables. Lower storage areas orinstall storage areas that are movable.
Install adjustable keyboard pads thatadjust easily with little hand pressure. Install adjustable lighting withvariable intensity that can add more or less light to the work space as needed. The Americans with Disabilities Act was enacted with the best ofintentions. Although it has undergone much scrutiny it is clearly a step in theright direction.
As is apparent by the previously mentioned statistics andsurveys, the ADA has not put too large a burden upon business to providereasonable accommodation. However since the employment rate of the traditionalhandicapped person has not been affected since the laws inception there isobviously much work to be done. In the future if handicapped people are goingto be integrated into the mainstream of society it will take a collective effortnot from the United States Government, but from society in general. People fromboth all walks of life, including handicapped and nonhandicapped, must want thechanges and take some initiative to make it happen. Works CitedBowers, Brent. “ADA Compliance comes cheap, a survey finds.
” Wall Street Journal16 Sep. 1994 p(b)2 col 5. Coelho, Tony. “A sad story, but not typical.
” The Washington Post 19 Feb. 1995p(c)6. Gomez-Mejia, Luis R. , David B. Balkin, Robert L. Cardy.
Managing Human Resources. Englewood Cliffs, NJ: Prentice Hall, 1995. Mullins, James A, Jr. “Use a Collaborative approach to reasonableaccommodation”. HR Focus Feb.
1994 p16. Renolds, Larry. “ADA Complaints are not what experts predicted. ” HR Focus Nov. 1993 p6.
Smolowe, Jill. “Noble Aims, Mixed Results” Time 31 July 1995. “Some quick tips to make workspaces more flexible” HR Focus July 1992 p12-14. Stamps, David “Just how scary is the ADA?” Training June 1995 p93. “Who are the Disabled?: At work: A controversial law falls down on the job”.
News Week 7 Nov. 1994.
