Call 1-800-949-4ADA
for Technical Assistance

Requirements for Employment Pllicies and Practices


This chapter reviews ADA requirements related to the employment policies and practices of public school systems. As explained previously, Title II, Subpart C, of the ADA addresses employment discrimination, but references Title I and Section 504 for specific requirements concerning employment. However, the Rehabilitation Act Amendments of 1992 amended Section 504 to incorporate Title I employment standards. As a result, all school districts are subject to Title I standards. The chapter, therefore, focuses primarily on employment standards under the regulation implementing Title I of the ADA. Since Section 504 has been in existence for over twenty years and most school districts have had experience complying with the old employment requirements of Section 504, significant differences between the requirements of Title I and the old employment standards of Section 504 are also highlighted throughout the chapter.

The chapter begins with an overview of requirements related to employment under Titles I and II of the ADA as well as under Section 504. The chapter presents a summary of the applicability of these legal standards, their basic requirements, and the nature of their interrelationships. Next, two definitions critical to the ADA's approach to nondiscriminatory employment are reviewed: the concept of a "qualified person with a disability" in the context of employment and the delineation of "essential functions" of a job. A discussion of the key concept of "reasonable accommodation" follows. Numerous examples of reasonable accommodations are provided. The concept of "undue hardship"--the counterbalance to the requirement to provide reasonable accommodations--is also presented.

The chapter then reviews specific elements of the employer-employee relationship, beginning with requirements for qualification standards and selection criteria. The chapter presents nondiscrimination requirements applicable to the hiring process, reviewing requirements for job advertisements and notices, pre-employment inquiries, and testing. Next, it addresses post-offer and employee medical examinations and inquiries. The chapter reviews nondiscrimination requirements that prohibit actions that limit, segregate, or classify applicants and employees because of a disability. It also discusses how these requirements apply to the provision of health insurance benefits plans, opportunities for advancement, performance standards, and training opportunities.

* Print Page 98

The chapter reviews Title I requirements that prohibit discrimination against employees or potential employees that results from contractual relationships of the employer. It also addresses Title I requirements that prohibit discrimination on the basis of relationship or association with persons with disabilities or organizations intended to benefit persons with disabilities, as well as Title I requirements that prohibit retaliation and coercion that result from the lawful exercise of rights under the ADA. Finally, defenses to charges of employment discrimination on the basis of disability are discussed.

At the end of the chapter, a practical guide to conducting the self-evaluation of employment policies and practices is presented. The worksheets provided may be used to conduct an initial self-evaluation or to conduct periodic reviews to identify areas in which modifications may be needed to remain in compliance.

AN OVERVIEW OF APPLICABLE LEGAL STANDARDS

Title II prohibits all public entities from discriminating against qualified individuals with disabilities in their employment policies and practices [28 C.F.R. ? 35.140(a)]. For public school systems directly subject to Title I (virtually all), Title II adopts standards contained in Title I [28 C.F.R. ? 35.140(b)(1)]. Title I, which is primarily enforced by the U.S. Equal Employment Opportunity Commission, has prohibited job discrimination for all state and local government employers with at least 25 employees since July 26, 1992 [29 C.F.R. ? 1630.2(e)(1)]. Since July 26, 1994, Title I has prohibited job discrimination by state and local government employers with 15 or more employees [29 C.F.R. ? 1630.2(e)(1)].

For public school systems that are not directly subject to Title I, Title II adopts the standards of Section 504 [28 C.F.R. ? 35.140(b)(2)]. Under Section 504, public school systems that receive federal financial assistance, regardless of the number of employees, are prohibited from discriminating in employment in their programs and activities. Because Section 504 has been in existence for over twenty years, most public school systems have had experience in complying with Section 504. As discussed in Chapter One and the introduction to this chapter, it is important to note, however, that all school districts are actually subject to Title I standards because the Rehabilitation Act Amendments of 1992 provide that complaints alleging employment discrimination under Section 504 are now to be judged by the standards of Title I.

In general, requirements under Title I of the ADA are more detailed and comprehensive than the old employment requirements under Section 504. There are also a few significant differ-

* Print Page 99

ences between the requirements of Title I and the old employment requirements of Section 504, which are addressed in this chapter. It is essential that school districts become thoroughly familiar with the Title I requirements because all school districts are subject to Title I standards.

OVERVIEW OF LEGAL REQUIREMENTS

The basic mandate of Title I is that an employer cannot discriminate against an otherwise qualified person with a disability in any aspect of the employment relationship. Activities that are part of the employment relationship include recruitment, the application process, testing, interviewing, hiring, assignments, evaluation, discipline, medical examinations, compensation, promotion, on-the-job training, layoff/recall, termination, leave, benefits such as health insurance, and any other terms, conditions, and privileges of employment.

28 C.F.R. ? 35.140 Employment discrimination prohibited. (a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity.

Your school system's self-evaluation must include a thorough examination of its employment policies and practices to ensure that it is in compliance with the ADA. Under the ADA, the following actions are prohibited:

  1. Refusing to make reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the public entity can prove that the accommodation would pose an undue hardship.
  2. Denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of the public entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.
  3. Using qualification standards, employment tests, or other selection criteria that screen out, or tend to screen out, an individual with a disability, unless these criteria are job-related and consistent with business necessity.
  4. Making pre-employment inquiries related to an individual's disability or medical history or refusing to hire an individual on the basis of the person's disability or medical history (unless the rejection is job-related and consistent with business necessity, and job performance cannot be accomplished with reasonable accommodation).
  5. Failing to select and administer tests concerning employment so as to ensure that, when a test is administered to an applicant or employee with impaired sensory, manual, or speaking skills, the test results accurately reflect the
* Print Page 100

individual's aptitude or achievement level (or whatever other factor the test purports to measure) rather than reflecting the person's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).

6. Making medical inquiries or conducting medical examinations of applicants or employees, or taking actions against individuals with disabilities based on medical or related information, in a manner prohibited by the ADA. (See discussion on [print] pages 114-118.)

7. Limiting, segregating, or classifying a job applicant or employee because of his or her disability in a way that adversely affects the individual's employment opportunities.

8. Participating in a contractual or other arrangement or relationship that subjects either a qualified applicant or an employee with a disability to discrimination.

9. Utilizing standards, criteria, or methods of administration (a) that have the effect of discrimination on the basis of disability; or (b) that perpetuate the discrimination of others who are subject to common administrative control. (See discussion on [print] page 76.)

10. Denying employment opportunities to or otherwise discriminating against a qualified individual, whether or not that individual has a disability, because he or she has a relationship or association with a person with a disability.

11. Discriminating against an individual because he or she has opposed an employment practice of the employer; has filed a complaint; or has testified, assisted, or participated in an investigation, proceeding, or hearing to enforce provisions of the ADA.

Except for the requirement mentioned in item 9, which is addressed on [print] page 76, these basic requirements will be discussed in more detail following a review of two key definitions essential to understanding and complying with the ADA's employment-related regulations.

BASIC DEFINITIONS

Who is a "Qualified Individual with a Disability?"

As mentioned in Chapter Two, employers may not discriminate against "qualified individuals with disabilities," either as job applicants or employees. For the purposes of employment, a

* Print Page 101

qualified individual with a disability is a person with a disability who satisfies the requisite skill, experience, and education and other job-related requirements for the job and can perform the essential functions of the job, with or without reasonable accommodation [29 C.F.R. ? 1630.2(m)].

29 C.F.R. ? 1630.2 Definitions. (m) __Qualified individual with a _disability means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.

Clearly, all individuals with disabilities are not necessarily "qualified individuals with disabilities."

Example: Are these qualified individuals with disabilities?

A school district's budget office is hiring for a certified public accountant position. Jill, who has a psychiatric disability, applies for the position. She has some bookkeeping experience, but she is not a certified public accountant. The district can reject Jill because she is not qualified for the position. On the other hand, Lisa, who has a visual disability, applies for the position. She is a certified public accountant and can perform all essential job functions. Lisa is qualified for the position.

Even though, in the example given, Lisa is clearly qualified for the certified public accountant position, the district does not have to hire her. There is no obligation to prefer a qualified applicant with a disability over other applicants. The employer is free to select the most qualified applicant available. However, if selection criteria screen out, or tend to screen out, a qualified individual with a disability, the criteria must be job-related and consistent with business necessity. In addition, an employer cannot refuse to hire an applicant with a disability because he or she needs an accommodation to perform an essential function of the job (in Lisa's case, perhaps a magnification device) or because he or she cannot perform a marginal function of the job (in Lisa's case, perhaps occasional document filing). If it were found that the district eliminated Lisa as an applicant on the basis of her disability or hired someone clearly less qualified to avoid having to accommodate her disability, the district would not be in compliance with Title I.

What are the "Essential Functions" of a Job?

A person is a qualified individual with a disability only if he or she can perform the _essential functions of a job (with or without reasonable accommodation). If such a person cannot perform functions marginal or incidental to job performance, the individual is still qualified. Clearly, it is critical that employers thoughtfully analyze and document job requirements in a way that clarifies the distinction between essential and non-essential functions of a job.

Prior to the Rehabilitation Act Amendments of 1992, the Section 504 regulation did not define the term "essential

* Print Page 102

functions." However, Title I incorporates the understanding of "essential functions" that is presented in the Appendix to the Section 504 regulation [Appendix A to 34 C.F.R. Part 104, at 374 (1994)]. The term "essential functions" refers to the _fundamental elements of a job.

29 C.F.R. ? 1630.2 Definitions. (n) _Essential _functions. (1) _In _general. The term "essential functions" means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position.

Factors to be weighed in determining whether a job function is essential include:

  1. whether the reason the position exists is to perform the function;
  2. whether a limited number of employees are available to perform the function, or whether the performance of the job function can be distributed among them; and/or
  3. whether the function is a highly specialized one that requires special expertise or ability the person hired must have to be able to perform it [29 C.F.R. ? 1630.2(n)(2)].
Evidence that may be considered in determining whether a particular job function is essential includes, but is not limited to, the following: Examples: Are these individuals able to perform essential job functions?

1. A public school is hiring for the position of secretary to the principal. Dorothy, who has multiple sclerosis and uses a wheelchair, meets all of the qualification standards in terms of experience, education, and related skills. 70% of the job involves typing, while 25% of the job involves using the telephone, and 5% of the job involves

* Print Page 103

filing. There is a file clerk who handles the bulk of the filing duties. The office has a system of upright files and Dorothy is unable to reach the two top drawers from her wheelchair; however, she can perform all other job duties. Since she has the requisite skills and education and can perform the essential functions of the job, and the filing task is a marginal function, Dorothy is qualified for the position.

2. Umberto, a public school teacher, has taught successfully in the school for several years. Last semester he was in a serious automobile accident and suffered an injury to the head. While gradual recovery is projected, at present, Umberto has cognitive difficulties, including difficulty in information retention and concentration, and psychosocial impairment manifested in inappropriate outbursts of anger.

After receiving complaints from students, school officials sit in on several of his courses. A conclusion is reached that, at the present time, Umberto is unable to communicate clearly to his class and that angry episodes are alienating his students. After consultation with Umberto's doctor and a review of medical evidence, as well as consultation with representatives of a national disabilities organization familiar with common head injury problems, school officials conclude that no reasonable accommodation will enable Umberto to perform his teaching duties during this phase of his recovery. He is offered a choice of either a temporary unpaid leave of absence or being placed in a lower-paid administrative position.

Umberto claims that he has been discriminated against. However, Umberto is not able to perform essential functions of his job as a teacher and no reasonable accommodation will enable him to succeed as a teacher until he recovers further. Therefore, the school district's actions are not discriminatory.

Job descriptions used to identify essential job functions should be written to focus on the desired _outcome _or _results of a job, not the manner in which it is usually performed. Often, reasonable accommodation will enable an individual with a disability to achieve the necessary results in a different way from the more typical approach to the task. What matters is that the desired outcome is achieved.

If an individual with a disability who is otherwise qualified cannot perform one or more essential job functions because of his or her disability, the prospective employer must consider whether there are accommodations that would enable the person

* Print Page 104

to perform these functions. The following section discusses the employer's obligation to provide reasonable accommodation and the limits to that obligation. The section also provides examples of reasonable accommodation.

THE OBLIGATION TO PROVIDE REASONABLE ACCOMMODATION

Reasonable Accommodation

Employers are required to make reasonable accommodation for qualified applicants and employees with disabilities who request such accommodation. Reasonable accommodation means modifications or adjustments to a job application process, the work environment, the way in which a job is customarily performed, or employment policies that enable a qualified individual with a disability to be considered for the position, perform the essential functions of the job, or enjoy benefits and privileges of employment equal to those available to a similarly-situated employee without a disability [29 C.F.R. ? 1630.2(o)(1)].

29 C.F.R. ? 1630.2 Definitions. (o)(1) _Reasonable _accommodation. The term "reasonable accommodation" means:

(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position;

or

(iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities

Examples of Reasonable Accommodation

Examples of reasonable accommodation include adjusting work schedules, restructuring the job, reassigning the employee, acquisition or modification of equipment and devices, providing qualified readers or interpreters, or modifying the work site [29 C.F.R. ? 1630.2(o)(2)].

1) _Adjusting _work _schedules. An employer should consider modification of a regular work schedule as a reasonable accommodation unless this would cause an undue hardship. Modified work schedules may include flexibility in work hours or the work week, or part-time work, where this will not be an undue hardship.

Examples: Are the following adjustments to these individuals' work schedules reasonable accommodations?

  1. Jim, an administrator in a school district's central office, has a disability, one of the effects of which is sleeplessness. As a result of Jim's request for a reasonable accommodation, the district permits Jim to start work at 10 A.M., rather than at 9 A.M., the typical starting time for administrators. Jim then leaves work at 6 P.M., one hour later than the typical time administrators leave for the day. The district is fulfilling its obligation to provide reasonable accommodation.
  2. Sean, a vice principal with a mental disability, requires
* Print Page 105

two hours off, twice weekly, for sessions with a psychiatrist. He requests a reasonable accommodation. The school district permits Sean to take longer lunch breaks and to make up the time by working later on those days. The district is fulfilling its obligation to provide reasonable accommodation.

Although employers may be required to make adjustments in leave policy as a reasonable accommodation in some instances, employers are not required to provide additional paid leave for employees with disabilities as an accommodation. However, employers should consider allowing use of accrued leave, advanced leave, or leave without pay, where this will not cause an undue hardship [__A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities _Act, U.S. Equal Employment Opportunity Commission, January 1992, page III-23].

2) _Restructuring _the _job. Job restructuring as a reasonable accommodation may involve reallocating or redistributing the marginal functions of a job. Although an employer is not required to reallocate essential functions of a job as a reasonable accommodation, it may be a reasonable accommodation to modify the essential functions of a job by changing when or how they are done.

Example: Is job restructuring a reasonable accommodation for this individual?

Rob, who had his left arm amputated as a result of an accident, has returned to work in the facilities maintenance department using a prosthesis. He is able to perform all of the essential job functions of his former position. However, Rob is not able to perform the marginal function of operating one piece of equipment that cannot be modified and requires a two-handed, fine motor grasping motion. Since Rob always works as part of a crew, the duties among the crew are re-allocated so that other workers perform that task. The school district is fulfilling its obligation to provide reasonable accommodation.

3) Reassigning the employee to a vacant position. Although "reassignment" was not specifically listed as a possible reasonable accommodation in the Section 504 regulation prior to the Rehabilitation Act Amendments of 1992, under the Title I regulation, reassignment may be an appropriate accommodation if an individual is unable to perform the essential functions of his or her current position because of a disability. If there is no other accommodation that will enable the person to perform these functions, or if the employer can prove that other accommodations would pose an undue hardship, reassignment to a vacant

* Print Page 106

position should be considered if the individual is qualified for the position.

Example: Is employee reassignment a reasonable accommodation for this individual?

Sarah worked as a bus driver for the City Department of Education. After a serious car accident in which she experienced a traumatic brain injury, Sarah is unable to drive and is therefore no longer able to perform the duties required of the position. There is no reasonable accommodation that would enable Sarah to perform the essential function of driving a bus safely. However, Sarah is qualified for a position that has just become vacant in which she would coordinate transportation for athletic and other special

events. The City Department of Education offers Sarah this job reassignment as a reasonable accommodation, which fulfills the agency's duty to provide reasonable accommodation.

4) __Acquiring or Modifying Equipment and _Devices. Purchase of equipment or devices or modifications to existing equipment may be effective accommodations for people with many types of disabilities. There are many devices that make it possible for people to overcome existing barriers to performing functions of a job. These devices range from very simple solutions, such as an elastic band that can enable a person with cerebral palsy to hold a pencil and write, to "high-tech" electronic equipment that can be operated with eye or

head movements by people who cannot use their hands. There are also many ways to modify standard equipment so as to enable people with functional limitations to perform jobs effectively and safely.

Creative analysis of job requirements often results in effective low-cost accommodations. The following are a few examples of effective uses of low-cost assistive devices as reasonable accommodations:

-- Wrist supports for use while typing (available for under $30) and adjustment of the height of the desk chair may enable a clerk/typist with carpal tunnel syndrome (an inflammatory disease

that affects the wrists, typically as a result of repetitive motion) to do his or her job with minimal stress on his or her wrist joints.

-- A detachable extension arm for a rake may enable a groundskeeper with limited use of one arm to control the rake with

the fully-functional arm.

-- A relatively lightweight mop and a smaller broom may

enable an employee with congenital heart problems to do his or her

job with minimal strain.

* Print Page 107

-- A trackball may be used instead of a "mouse" to enable an individual with poor hand-eye coordination to control the movement of the cursor on a computer screen.

Example: Is the provision of equipment a reasonable accommodation for this individual?

Martin has been employed as a part-time maintenance worker by a school system for many years. One of his primary responsibilities during the winter months is removing snow from sidewalks. Martin develops a heart ailment that substantially limits his ability to

lift heavy objects and prevents him from shoveling snow. He informs his employer about his health condition and requests reasonable accommodation. He is fired without discussion. The school system has discriminated against Martin because school officials did not discuss possible reasonable accommodation, such as the provision of a snow blower, that may have enabled him to continue fulfilling his responsibilities as a part-time maintenance worker.

It is important to note that many types of equipment and devices that are effective accommodations for employees with visual, hearing or speech disabilities--such as large print displays on computer monitors, screen readers, TDDs, and telephone amplifiers--also constitute auxiliary aids and services that are designed to provide effective communication. Auxiliary aids and services that are used

to provide effective communication are discussed in greater detail in Chapter Seven.

5) __Providing Qualified Readers and _Interpreters. It may be a reasonable accommodation to provide a qualified reader for a

qualified individual with a visual disability or a qualified interpreter for a qualified individual with a hearing disability, if such an accommodation does not impose an undue hardship. Identifying the needs of the individual in relation to specific job tasks will determine whether or when a reader or interpreter is needed. Few jobs require a full-time employee for reading or interpreting. A reader or an interpreter may be a part-time employee or a full-time employee

who performs other duties. Readers and interpreters must read and interpret well enough, respectively, to enable the employee with disabilities to perform his or her job effectively.

Example: Is an interpreter a reasonable accommodation for this individual?

Tina is an administrator with a local school district. She has a hearing impairment, and although she is a good lip-reader in one-to-one communication settings, she communicates using a sign language interpreter for group settings and to handle

* Print Page 108

telephone work. The school system contracts with an interpreter to work with Tina for twenty hours per week. Tina arranges her

schedule so that her meetings and telephone work are scheduled for

the times the interpreter is present. This arrangement fulfills the school district's duty to provide reasonable accommodation.

Qualified readers and interpreters are also examples of

auxiliary aids and services that are used to provide effective communication. As mentioned above, auxiliary aids and services that are designed to provide effective communication are discussed comprehensively in Chapter Seven.

6) __Modifying the work _site. Employers are obligated to

provide access for individual job applicants with disabilities to enable them to participate in the job application process. When an employee with a disability is hired, an employer may have to modify the work site to enable him or her to perform essential job

functions. In addition, employees with disabilities must be able to readily access all facilities used by employees, whether essential to job functions or not--for example, the employee lounge or cafeteria.

Example: Is work site modification a reasonable accommodation for this individual?

Peter, who uses a wheelchair, is hired as an administrator. He

is unable to enter the building where he is assigned, which has two steps between the lobby entrance and the elevators. He is also unable to sit comfortably at his desk because it is too low to the floor.

The school district constructs a ramp in the lobby to provide an accessible route for Peter. His desk is raised on concrete blocks to accommodate the height of his wheelchair. These worksite

modifications fulfill the school district's duty to provide

reasonable accommodation.

It is important to understand that an employer is obligated to provide only job-related accommodations. The requirement to provide reasonable accommodation does not include providing personal aids or services to assist an individual in daily activities on or off the job, such as wheelchairs, glasses, prostheses, or assistance in toileting or feeding.

It is strongly suggested that school districts establish

policies and procedures to document information regarding the provision of reasonable accommodation. Information that might be documented includes the date that an employee or prospective employee notified the employer of his or her need for accommodation, the specific accommodation(s) requested by the employee or prospective employee, the specific accommodation(s) that the employer offered and the date(s) of the offer, and whether the

* Print Page 109

employee or prospective employee accepted or refused the accommodation. Employers are encouraged to inform supervisors of the need to keep this documentation in the event that a grievance is

filed or litigation is pursued.

Choosing the Accommodation

The employer is obligated to accommodate only known disabilities of qualified applicants or employees [29 C.F.R. ? 1630.9(a)]. The responsibility for providing an accommodation is triggered when an individual with a disability makes a request for an accommodation. Usually, the person making the request will be able to suggest an appropriate accommodation. School districts can facilitate this process by providing appropriate forms and specific procedures for

the use of individuals in need of accommodation.

Many employees with disabilities do not need accommodations.

For other employees, the need for accommodation may be obvious. If an employee with a known disability is having difficulty performing the job without an accommodation, the employer may ask the employee whether he or she is in need of an accommodation. Under the Title I regulation, a qualified individual with a disability is not required to accept the offer of an accommodation. However, if such an offer is rejected and the person cannot then perform the essential functions

of the job, the person will no longer be considered a qualified individual with a disability [29 C.F.R. ? 1630.9(d)]. (These Title I requirements regarding the rejection of an offer of a reasonable accommodation were not specifically provided in the Section 504 regulation prior to the Rehabilitation Act Amendments of 1992.)

Once the applicant or employee has requested an accommodation, sufficient information must be gathered to determine the type of accommodation necessary to enable the individual to perform the job. In most instances, the person with a disability is in the best position to identify what is needed; however, you may wish to seek additional information from qualified experts.

An employer need not provide the requested accommodation if an alternative means of accommodation that is less costly, but equally effective, is available. It is mandatory, however, to provide an accommodation that gives a qualified individual with a disability an opportunity to attain the same level of job performance as co-workers with similar skills and abilities. Public school systems should anticipate requests for reasonable accommodation. It will facilitate your response to such requests to have certain commonly requested accommodations readily available or know how to obtain them expeditiously when needed.

The Job Accommodation Network provides free consulting services for employers to help them select accommodations to

* Print Page 110

enable persons with disabilities to perform critical job functions.

By contacting the Job Accommodation Network, you can access experienced persons familiar with a large number of accommodations that may be applicable to the barrier your employee must overcome. By far, the majority of accommodations suggested are relatively inexpensive: in fact, 31% of those suggested by Network consultants

to date have been free. (See _Resources.)

The Counterbalance: Undue Hardship

If an employer can prove that a requested accommodation imposes an "undue hardship" on the employer, it need not be provided [29 C.F.R. ? 1630.9(a)]. However, if the originally suggested accommodation is an undue hardship, the employer must consider carefully whether another accommodation exists that would _not result in an undue hardship.

29 C.F.R. ? 1630.9 Not making reasonable accommodation. (a) It

is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue

hardship on the operation of its business.

Undue hardship is defined as significant difficulty or expense incurred by a covered entity in the provision of an accommodation [29 C.F.R. ? 1630.2(p)(1)]. Under Title I, factors that should be

weighed in determining whether a requested accommodation poses an undue hardship include:

the number of employees and the number, type, and location of its facilities;

-- the type of operation or operations of the covered entity, including the composition, structure, and functions of the work

force; the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and

-- the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business [29 C.F.R. ? 1630.2(p)(2)].

The factors used to determine what constitutes an "undue hardship" under Title I are more explicit and numerous than those contained in the Section 504 regulation prior to the Rehabilitation Act Amendments of 1992. For example, Section 504 required only

* Print Page 111

that the resources of the covered entity as a whole be considered in determining whether an accommodation was too costly for a particular school district [34 C.F.R. ? 104.12(c)(1)]. Under Title I, the resources that are available to the employee's specific work site

must be considered, in addition to consideration of the resources of the covered entity as a whole. The Title I regulation also stresses that net cost (taking into consideration the availability of tax credits, tax deductions, and/or outside funding) is a relevant

factor; the Section 504 regulation simply referred to the nature and cost of the accommodation needed [34 C.F.R. ? 104.12(c)(3)].

The decision as to whether a requested accommodation is reasonable must be made and reviewed on a case-by-case basis. If providing a particular accommodation would be an undue hardship, the employer must attempt to identify an alternative accommodation that would not impose a hardship, as explained earlier. In addition, in cases in which the accommodation would pose an undue hardship for the employer, the individual with the disability should be given the option of paying for the portion of the cost that constitutes an

undue hardship or of providing the accommodation [Appendix to 29 C.F.R. Part 1630, at 414 (1994)]. It must be clearly understood, however, that this option is to be offered as a last resort and only in cases in which providing the requested accommodation would clearly constitute an undue hardship; it is not to be considered a routine cost-saving strategy.

Example: Is this requested accommodation an undue hardship?

A teacher with a disability that affects blood circulation requests that the thermostat in her classroom be raised to a certain level to accommodate her disability. However, the temperature she requires for her own comfort is uncomfortably hot for students. The school does not have to provide this accommodation if it would constitute an undue hardship. However, if there is an alternative accommodation that would not be an undue hardship--such as providing

a space heater--the school must provide that accommodation.

If employees are governed by a collective bargaining agreement, the terms of that agreement may have an impact on whether or not a requested accommodation creates an undue hardship [Appendix to 29 C.F.R. Part 1630, at 414 (1994)]. For example, if a person becomes disabled and can no longer perform the essential functions of the job with reasonable accommodation, job reassignment may be a possibility. However, if the collective bargaining agreement reserves certain jobs for employees with a given amount of seniority, and if the individual with the disability does not have the seniority normally required, this is a legitimate factor to consider in determining whether or not it would be an

* Print Page 112

undue hardship to reassign the employee to that vacancy. The interrelationship between the terms of a collective bargaining agreement and the responsibility of employers to provide reasonable accommodation is a complex issue where litigation is likely to

occur. Specific situations will have to be resolved on a

case-by-case basis.

It is important to understand, however, that certain provisions of collective bargaining agreements will clearly violate the ADA if they single out persons with disabilities for different treatment [29 C.F.R. ? 1630.6(a)]. For example, a collective bargaining agreement that permits a person only one unpaid leave for treatment for alcoholism violates the ADA if unpaid leave for treatment for alcoholism is treated more restrictively than unpaid leave for all other reasons. This "limitation" constitutes disparate treatment

based on disability and differs significantly from "neutral" provisions, such as those addressing seniority rights. A provision limiting leave for alcoholism treatment singles out individuals with

a disability for different treatment and explicitly prohibits a type of reasonable accommodation. Because of the disparate treatment of employees with a disability, an employer (or union) could _not defend such a provision by claiming undue hardship.

The EEOC is currently developing guidance that will address, among other things, the relationship between the terms of a

collective bargaining agreement and the responsibility of employers

to provide reasonable accommodation. To obtain information concerning this guidance, contact the EEOC directly. (See _Resources.)

QUALIFICATION STANDARDS AND SELECTION CRITERIA

The ADA does not prohibit an employer from establishing physical and mental job-related qualification standards--including education, skills, and work experience--necessary for job performance, health

and safety [29 C.F.R. ? 1630.10]. Public school districts are

entitled to hire the most qualified person able to perform a job.

29 C.F.R. ? 1630.10 Qualification standards, tests, and other selection criteria. It is unlawful for a covered entity to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.

ADA requirements are designed to ensure that people with disabilities are not excluded from jobs that they _can perform. However, qualification standards or selection criteria that screen

out or tend to screen out an individual with a disability on the

basis of disability are not automatically disallowed if they are demonstrably job-related and consistent with business necessity [29 C.F.R. ? 1630.10]. "Job-related" means that a selection criterion must be a legitimate measure or qualification for the specific job

for which it is being used [__A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities _Act,

* Print Page 113

U.S. Equal Employment Opportunity Commission, January 1992, page IV-2]. "Business necessity" means that a selection criterion may not exclude an individual with a disability because of the disability unless the criterion relates to the essential functions of the job [__A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities _Act, U.S. Equal Employment Opportunity Commission, January 1992, page IV-3].

Even if a standard is job-related and consistent with business necessity, if it screens out an individual with a disability on the basis of disability, the employer must consider whether the

individual could meet the standard with reasonable accommodation. For example, it may be job-related and necessary for a school district to require that a secretary produce letters and other documents on a

word processor. However, it would be discriminatory to reject a

person whose disability prevented manual keyboard operation but who could meet the qualification standard using a computer assistive device. Such devices are generally not costly and would not be expected to impose an undue hardship for any public school district.

It is important to note that employers may continue to select

and hire people who can perform all job functions. However, an employer may not refuse to hire an individual with a disability who, while able to perform the essential functions of the job, cannot perform marginal job functions because of the disability, even though other applicants can perform those marginal functions [__A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities _Act, U.S. Equal Employment Opportunity Commission, January 1992, page IV-2].

Example: What qualification standards and selection criteria may

this school district consider when evaluating applicants for a job opening?

A school district has an opening for an administrative

assistant. The essential functions of the job are administrative and organizational. Some occasional typing has been part of the job, but other clerical staff are available who can perform this marginal job function.

There are two job applicants. Jennifer has a disability that makes typing very difficult; John has no disability and can type. The district may not refuse to hire Jennifer because of her inability to type, but must base a job decision on the relative ability of each applicant to perform the essential administrative and organizational job functions, with or without accommodation. However, if Jennifer could not type for a reason not related to her disability (for example, if she had never learned to type), the district would be

free to select the applicant who could best perform all of the job functions.

* Print Page 114

NONDISCRIMINATION IN THE HIRING PROCESS

Job Advertisements and Notices

It is advisable that job announcements, advertisements, and other recruitment notices include information on the essential functions of the job. Specific information about essential functions will attract applicants, including individuals with disabilities, who have appropriate qualifications.

Information about job openings should be accessible to people with various disabilities. For example, job information should be available in a location that is accessible to people with mobility impairments and in formats accessible to individuals with sensory impairments. While an employer is not obligated to provide written information (such as job descriptions) in alternative formats in advance of any request, the information in alternative formats must be made available in a timely manner once it has been requested.

Pre-employment Inquiries

The ADA prohibits pre-offer inquiries regarding the existence of an applicant's disability or the nature and severity of the disability on application forms, in job interviews, and in background or reference checks [29 C.F.R. ? 1630.13(a)]. Pre-offer medical inquiries or medical examinations are also prohibited [29 C.F.R. ? 1630.13(a)]. These requirements are intended to redress a historically common occurrence: the rejection of people with disabilities before their merits are considered, often based on myths and misinformation about their disability. Employers _may make pre-employment inquiries into the ability of the applicant to perform job-related functions [29 C.F.R. ? 1630.14(a)]. However, blanket questions such as "Do you have a disability?" or "How many times have you been hospitalized in the last five years and for what?" are not permissible. Employers may also not ask such questions as, "Have you ever been treated by a psychiatrist or psychologist?" and "Are you taking any prescribed drugs?" Questions concerning an applicant's workers' compensation claims history are also prohibited at the pre-offer stage.

Employers may ask all applicants to describe or demonstrate how they will perform the functions of the job with or without reasonable accommodation. Employers may also ask an individual with a known disability to describe or demonstrate how functions of the job will be performed, whether or not all applicants in the job category are so asked [29 C.F.R. ? 1630.14(a)]. If a demonstration of how the proposed accommodation would work in practice is required, the employer must provide the reasonable accommodation for the demonstration. Agility tests are not considered medical examinations and are permissible

* Print Page 115

at the pre-offer stage, provided that they are given to all applicants [Appendix to 29 C.F.R. Part 1630, at 412 (1994)].

It is important to note that public school systems have an obligation to make reasonable accommodations to enable an applicant with a disability to apply for a job. For example, individuals with visual or learning disabilities or other mental disabilities may require assistance in filling out application forms. School districts must also provide a reasonable accommodation, if needed, to enable an applicant to have equal opportunity in the interview process. Needed accommodations for interviews may include an accessible location for people with mobility impairments, a sign language interpreter for a person with a hearing impairment, or a reader for a person with a visual impairment. School districts may find it helpful to include a statement in job notices and/or job application forms, that applicants who need accommodation for an interview should request this in advance.

Testing

Employers may use any kind of test to determine job qualifications. However, if a test screens out or tends to screen out an individual with a disability or a class of such individuals on the basis of disability, it must be job-related and consistent with business necessity [29 C.F.R. ? 1630.10]. For example, a principal's office seeking to hire a secretary may continue to use a typing test that excludes individuals who type less than sixty words per minute if typing is an essential function of the job and sixty words per minute is the expected level of performance for employees in the job category.

The ADA requires that tests be given to people who have impaired sensory, speaking or manual skills in a format and manner that does not require use of the impaired skill, unless the test is designed to measure that skill [29 C.F.R. ? 1630.11]. The purpose of this requirement is to ensure that tests accurately reflect a person's job skills, aptitudes, or whatever else the test is supposed to measure, rather than impaired skills that are not required to perform essential job functions. This requirement applies the reasonable accommodation obligation to testing.

29 C.F.R. ? 1630.11 Administration of Tests. It is unlawful for a covered entity to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

Some examples of alternative test formats and accommodations include:

* Print Page 116 POST-OFFER AND EMPLOYEE MEDICAL EXAMINATIONS AND INQUIRIES

Inquiries Following a Conditional Offer

Once an offer of employment has been extended, it may be conditioned on the results of a medical examination if all individuals in the same job category are examined and if the information obtained is kept confidential [29 C.F.R. ? 1630.14(b)]. Medical inquiries at this stage of the employment process are unrestricted. However, there are limitations on how medical information gathered at this stage may be used. If the results of the medical examination are used to screen out applicants with disabilities, the criteria must be job-related and consistent with business necessity [29 C.F.R. ? 1630.14(b)(3)].

Example: Is this use of medical information permissible?

Jeff is applying for an administrative assistant position at an elementary school. The essential functions of the job are word processing, filing, and answering the telephone. The school requires all applicants to undergo a post-offer, pre-placement physical. The medical history portion of the examination discloses that Jeff has a psychiatric disability. The school system informs Jeff that it wishes to withdraw its offer.

* Print Page 117

Since post-offer medical examinations and inquires, made before an individual starts work, need not focus on the ability to perform job functions and do not have to be "job-related" and "consistent with business necessity," the school system may inquire regarding Jeff's disability. However, the school system may not withdraw the job offer unless the reasons for the exclusion are job-related and consistent with business necessity and job functions cannot be accomplished with the provision of reasonable accommodation, or unless Jeff poses a direct threat to health or safety.

It is permissible to make post-offer inquiries about a worker's medical compensation history if all applicants in the same job category are asked the same question [__A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities _Act, U.S. Equal Employment Opportunity Commission, January 1992, page V-8]. However, an employer may not base an employment decision on speculation that an applicant may cause increased workers' compensation costs in the future.

Employee Medical Examinations and Inquiries

The Title I regulation contains several provisions regarding employee medical examinations and inquiries that were not contained in the Section 504 regulation prior to the Rehabilitation Act Amendments of 1992. For example, under Title I, once an employee starts work, any health-related inquiries or medical examinations must be job-related and consistent with business necessity [29 C.F.R. ? 1630.14(c)]. Medical examinations or inquiries may be conducted when there is a need to determine whether an employee is still able to perform essential job functions. For example, if an employee repeatedly falls asleep on the job, has excessive absenteeism, or exhibits difficulty performing essential job functions, a medical examination may be required to determine fitness for job duty and/or the need for reasonable accommodations.

Under Title I, employers may conduct periodic examinations and other medical screening and monitoring required by federal, state or local laws [Appendix to 29 C.F.R. Part 1630, at 413 (1994)]. Prior to the Rehabilitation Act Amendments of 1992, Section 504 did not contain a similar provision. The Title I regulation provides that an employer may defend an alleged discriminatory action by showing that the action was taken in compliance with another federal law or regulation [29 C.F.R. ? 1630.15(e)]. An action taken to comply with state or local law must be consistent with the ADA [Appendix to 29 C.F.R. Part 1630, at 413 (1994)]. For example, if a state or local law required that employees in a particular job be tested periodically for AIDS or the HIV virus, the ADA would prohibit such an examination unless an employer can show that it is job-related and consistent with business necessity or required to avoid a direct threat to

* Print Page 118

health or safety [__A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities _Act, U.S. Equal Employment Opportunity Commission, January 1992, page VI-15].

Under Title I, an employer may conduct voluntary medical examinations and inquiries as part of an employee health program, provided that participation in the program is voluntary and information obtained is kept confidential and is not used to discriminate against an employee [29 C.F.R. ? 1630.14(d)]. Prior to the Rehabilitation Act Amendments of 1992, there was no similar provision under Section 504.

Medical Files

Employers are required to maintain medical files separate from employees' personnel files to ensure against unwarranted disclosure of the person's disability [29 C.F.R. ? 1630.14(b)(1),(c)(1), and (d)(1)]. Although confidentiality must be maintained, an employer may inform supervisory personnel about an individual's medical restrictions or necessary accommodations. First aid or safety personnel may be informed if special treatment or evacuation assistance may be necessary. Disclosure is also permitted to: (1) government officials investigating compliance with the ADA; (2) state workers' compensation or second injury fund offices; and (3) the employer's health or life insurance companies [Appendix to 29 C.F.R. Part 1630, at 412(1994)].

Drug Testing

The ADA does not require or prohibit testing employees for illegal use of drugs [29 C.F.R. ? 1630.16(c)(1)]. However, any additional information obtained from drug tests besides whether the individual is currently engaging in the illegal use of drugs, such as the presence of a prescription medication to control a particular disability, must be treated as confidential medical information [29 C.F.R. ? 1630.16(c)(3)]. The employer can require drug use tests at any stage of the employment process.

Direct Threat to Health or Safety

As discussed in Chapter Two, under Title I, an employer is not required to hire or continue to employ an individual who poses a direct threat to the health or safety of the individual or others [29 C.F.R. ? 1630.15(b)(2)]. The direct threat standard is a strict one. The term is defined as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation" [29 C.F.R. ? 1630.2(r)]. Speculative or remote risks are not sufficient to constitute a significant risk under this provision. In determining whether an individual would pose a direct threat, the factors to be considered include:

* Print Page 119

  1. the duration of the risk;
  2. the nature and severity of the potential harm;
  3. the likelihood that the potential harm will occur; and
  4. the imminence of the potential harm [29 C.F.R. ?
1630.2(r)].

The employer must rely on the most current medical knowledge and/or objective, factual evidence concerning the individual, not on generalizations or stereotypes, to demonstrate the existence of a direct threat to health or safety. The assessment must consider whether accommodations could be provided that would enable the individual to safely perform the essential functions of the job [29 C.F.R. ? 1630.2(r)].

Example: Does this individual pose a "direct threat to health and safety?"

School district officials may believe that there is a risk of employing Keith, an individual with HIV disease, as a teacher. However, it is medically established that this disease can only be transmitted through sexual contact, use of infected needles, or other entry into a person's blood stream. There is therefore little or no likelihood that employing Keith as a teacher would pose a risk of transmitting HIV disease.

Although the term "direct threat" was not used in the pre-1992 Section 504 regulation, the factors used to determine whether an individual poses a "direct threat" in the Title I regulation are effectively identical to those contained in Section 504 case law to determine whether an individual poses a "significant safety risk" [__School Board of Nassau County v. _Arline, 480 U.S. 273, 288 (1987)].

A specific provision of Title I applies the direct threat analysis to food handlers with infectious or communicable diseases. The Secretary of the U.S. Department of Health and Human Services is responsible for generating a list of infectious and communicable diseases that are transmitted by food handling. If a person with a disability has one of these diseases and there is no reasonable accommodation that can eliminate the risk of transmitting the disease, the employer can refuse to hire the applicant or can reassign an incumbent to a position where he or she does not pose a direct threat to health or safety [29 C.F.R. ? 1630.16(e)].

* Print Page 120

LIMITING, SEGREGATING, OR CLASSIFYING JOB APPLICANTS OR EMPLOYEES

An employer or other covered entity may not limit, segregate, or classify an individual with a disability in a manner that adversely affects the individual's employment opportunities because of his or her disability [29 C.F.R. ? 1630.5]. Under the ADA, an individual with a disability must have equal access to any employment opportunity available to a similarly situated individual who is not disabled. This includes access to opportunities and benefits extended to current employees as well as those offered during the recruitment process.

29 C.F.R. ? 1630.5 Limiting, segregating, and classifying. It is unlawful for a covered entity to limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability.

Insurance and Other Benefit Plans

This requirement--that individuals may not be limited, segregated, or classified because of a disability in a way that adversely affects the individual's employment opportunities--applies to health insurance and other benefit plans provided by the school district to its employees, such as life insurance and pension plans, as well as to other benefits and privileges of employment. If an employer provides insurance or other benefit plans to its employees without disabilities, it must provide equal access to the same coverage to its employees with disabilities [Appendix to 29 C.F.R. Part 1630, at 404 (1994)].

An employer cannot fire or refuse to hire an individual with a disability because the employer's current health insurance plan does not cover the individual's disability or because the individual may increase the employer's future health care costs. Also, an employer cannot fire or refuse to hire an individual (whether or not that individual has a disability) because the individual has a family member or dependent with a disability who is not covered by the employer's current health insurance plan or who may increase the employer's future health care costs.

Certain restrictions are permissible, however, unless proven to be a subterfuge for discrimination. An employer may offer health insurance plans that contain pre-existing condition exclusions, even if this adversely affects individuals with disabilities, unless these exclusions are being used as a subterfuge to evade the purposes of the ADA. An employer may also offer health insurance plans that limit coverage for certain procedures and/or limit particular treatments to a specified number per year, even if these restrictions adversely affect individuals with disabilities, as long as the restrictions are uniformly applied to all insured individuals, regardless of disability. In addition, an employer may offer health insurance plans that limit reimbursements for certain types of drugs or procedures, even if these restrictions adversely affect individuals with disabilities, as long as the restrictions are uniformly applied without regard to disability.

* Print Page 121

For example, an employer can offer a health insurance plan that does not cover experimental drugs or procedures, as long as this restriction is applied to all insured individuals [Appendix to 29 C.F.R. Part 1630, at 405 (1994)].

It is important to note that, with respect to disability-based exclusions and disability-based differences in coverage, employers have the burden of justifying any disability-based distinctions in coverage [__Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-based Distinctions in Employer-provided Health _Insurance, U.S. Equal Employment Opportunity Commission, June 8, 1993, page 4]. For example, consider a public school district that provides a health plan that does not cover cochlear implantation procedures. Because _only individuals with hearing impairments would require cochlear implants, this is a disability-based distinction in coverage. The provider has the burden of justifying the particular disability-based distinction. The school district would have to show that the health plan is a bona fide health plan and that the disability-based distinction is not a subterfuge for discrimination (i.e., that the exclusion is necessary in order to ensure the financial solvency of the plan, or that a particular procedure is considered experimental treatment) [__Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990 to Disability-Based Distinctions in Employer-Provided Health _Insurance, U.S. Equal Employment Opportunity Commission, June 8, 1993, pages 10-13].

On June 8, 1993, the EEOC issued interim enforcement guidance on the application of the ADA to disability-based distinctions in employer-provided health insurance. This is an area of the law that is still evolving. To obtain a copy of the June 8, 1993, _Interim _Enforcement _Guidance or to receive technical assistance regarding disability-based exclusions or disability-based differences in coverage, contact the EEOC directly. (See _Resources.)

Other Benefits and Privileges

Nondiscrimination requirements, including the obligation to make reasonable accommodation, apply to all social or recreational activities provided or conducted by an employer, to any transportation provided by an employer for its employees or applicants, and to all other benefits and privileges of employment [29 C.F.R. ? 1630.4 and Appendix to 29 C.F.R. Part 1630, at 404 (1994)]. Picnics, parties, award ceremonies, and other social functions held by school districts must be held in accessible locations with interpreters or other accommodations available when needed. Employees with disabilities must be given an equal opportunity to participate in employer-sponsored sports teams, leagues, or recreational activities such as hiking or biking clubs. (However, no activity need be cancelled because an employee with a disability cannot participate, or participate fully,

* Print Page 122

because of the nature of the disability.) Any special facilities provided to employees--such as lounges, cafeterias, exercise rooms and gymnasiums--must be equally available to employees with disabilities. Transportation provided to employees must also be accessible to employees with mobility impairments.

Opportunities for Advancement

The nondiscrimination requirements that apply to initial selection apply to all aspects of employment, including opportunities for advancement [29 C.F.R. ? 1630.4]. For example, an employer may not discriminate with respect to promotion, job classification, evaluation, disciplinary action, opportunities for training, or participation in meetings and conferences. Assuming that an employee is not interested in or qualified for advancement--whether resulting from prejudice or mistaken sympathy--is not permissible. Also, the need to provide reasonable accommodation to enable the person with a disability to perform essential job functions may not appropriately be considered as a criterion for advancement. Employers should ensure that supervisors and managers who make decisions regarding promotion and advancement are aware of ADA nondiscrimination requirements.

Employees with disabilities must not be limited in any way with respect to their promotion and advancement through the organization--except by their own skills and abilities.

Example: Is this teacher's advancement being illegally restricted?

Noah is an experienced teacher who has been with the school system for many years. He uses a wheelchair. He has excellent interpersonal skills and is well respected by the student body. However, when there is an opening for an assistant principal position in the school, Noah is not considered because of the perception that his disability would prevent him from handling disruptive students and administering discipline effectively. Noah is being discriminated against. In considering candidates for a position, school officials must analyze candidates' skills and abilities and must not base their decision on whether to hire or promote an individual on perceptions regarding the individual's disability.

Performance Standards

Employees with disabilities may be held to the same standards of production and performance as other employees without disabilities who are performing similar functions. No "special treatment" is required in performance evaluations. If an employee with a disability is not performing well, an employer is entitled to take the same disciplinary action that would be taken against other similarly situated employees. The employer is even

* Print Page 123

permitted to make medical and other professional inquiries to determine how the disability may be affecting job performance, provided the inquiries are job-related and consistent with business necessity. However, an employee with a disability who needs an accommodation to perform an essential job function should not be evaluated on his or her ability to perform the function without the accommodation and should not be downgraded because the accommodation is necessary.

Example: Is this employee's poor job rating discriminatory?

Eduardo, a guidance counselor, is subject to frequent depression. While receiving medical treatment, in the past year, he has been unable to perform critical job functions to required standards of quality, even though the district has provided reasonable accommodation. He has missed scheduled meetings with students, failed to return calls to prospective employers and colleges, and neglected paperwork essential to assist students in job placement. The school district is not discriminating against Eduardo on the basis of his disability by giving him a poor job performance rating.

Training Opportunities

Employees with disabilities must be provided equal opportunities to participate in training that will enable them to improve their job performance or to qualify for advancement [29 C.F.R. ? 1630.4(g)]. In order to enable employees with disabilities to benefit from training, reasonable accommodation must be made, unless the employer can prove that it would constitute an undue hardship. For example, interpreters and notetakers may need to be provided for employees who have hearing impairments. Training conducted directly by the school district or made available through contractors must be held in locations accessible to persons with mobility disabilities.

CONTRACTUAL OR OTHER RELATIONSHIPS

Employers may not do anything through a contractual relationship that they cannot do directly [29 C.F.R. ? 1630.6(a)]. Examples of entities with which an employer might contract include employment referral services, training programs, labor unions, and organizations providing fringe benefits to employees [29 C.F.R. ? 1630.6(b)].

29 C.F.R. ? 1630.6 Contractual or other arrangements. (a) In general. It is unlawful for a covered entity to participate in a contractual or other arrangement or relationship that has the effect of subjecting the covered entity's own qualified applicant or employee with a disability to the discrimination prohibited by this part.

As part of the self-evaluation process and of future reviews conducted to ensure continued compliance with the ADA, public school systems should examine the recruitment and placement practices of any employment agencies they utilize (whether for temporary or permanent job placements) to ensure that the

* Print Page 124

employment agencies' practices are in compliance with the ADA. Particular attention should be given to the methods employment agencies use to recruit or screen applicants. Public school systems should inform employment agencies they work with of their mutual obligation to comply with the ADA. In addition, any apprenticeship and job-training programs with which school districts are associated must also be free from discrimination in their treatment of participants.

Example: Is the school district responsible for this contractor's discriminatory hiring practices?

A local school district uses an employment agency to recruit prospective employees for a management position. The agency places a newspaper advertisement with a telephone number that all interested persons must call; no address is given and the employer's identity is not cited. The advertisement mentions no TDD number. A qualified applicant with a hearing impairment uses a relay service to reach the employment agency. The interviewer finds using the service time-consuming and frustrating; as a result of her initial impression that the candidate would be a "hassle" to work with, she does not include the individual's resume in a selected group of resumes of qualified applicants for further consideration--even though the applicant has met all stated qualifications.

The school system is responsible for the contractor's discriminatory hiring practices.

Labor unions are covered by the ADA and have the same obligation as the employer to comply with its requirements. A public school district cannot take any action through a labor union contract that would be impermissible for it to take directly. For example, if a union contract contained physical requirements for a particular job that screened out people with disabilities who were qualified to perform the job, and these requirements were not job-related and consistent with business necessity, they could be challenged as discriminatory by a qualified individual with a disability.

The Congressional Committee Reports accompanying the ADA advised employers and unions that in order to avoid conflicts between the bargaining agreement and the employer's duty to comply with the ADA, agreements negotiated after the effective date of the ADA should contain a provision that explicitly permits employers to take all action needed to comply with the ADA [S. Rep. No. 116, 101st Cong., 1st Sess. 32 (1990); H.R. Rep. No. 485, 101st Cong., 2nd Sess., pt.2, at 63 (1990)].

* Print Page 125

DISCRIMINATION ON THE BASIS OF RELATIONSHIP OR ASSOCIATION

As discussed in Chapter Two, employers sometimes make damaging and unfounded assumptions about how a current or prospective employee's relationship to a person with a disability will affect job performance. To protect individuals from this form of discrimination, the ADA bars employers from discriminating against employees, or potential employees, because of their known relationship or association with a person who has a disability [29 C.F.R. ? 1630.8]. There was no similar provision previously under Section 504. This ADA provision makes it illegal to fire or refuse to hire someone because of assumptions about how their relationship with a person who has a disability will affect either their work schedule or their participation in an employer-provided health insurance plan. Such persons also cannot be required to accept different insurance terms than those offered to other individuals.

The requirement prohibiting discrimination on the basis of "relationship or association" refers not only to family and other close personal relationships, but also to other social or business relationships and associations [Appendix to 29 C.F.R. Part 1630, at 406 (1994)]. For example, an employer may not discriminate against an individual who is affiliated with a group or association that is composed of persons with disabilities or intended to benefit them. Thus, volunteer work for certain organizations may be considered an association.

Examples: Are these individuals discriminated against on the basis of association?

  1. Ian, an applicant for an elementary school teacher position, volunteers with a local organization that provides assistance to persons with AIDS in their homes. During the interview, he informs school officials of this fact. Ian is equally qualified to the other candidates for the position. The school district relies in part on his volunteer work with the local AIDS organization in selecting one of the other candidates for the position. This constitutes discrimination on the basis of Ian's association.
  2. Margaret is an assistant principal being considered for promotion to principal. School officials are aware that her spouse has been diagnosed as having Alzheimer's Disease. Margaret is refused the promotion based on the unfounded assumption that caring for her spouse may demand so much of Margaret's attention that she will not be able to be an effective principal. This constitutes discrimination on the basis of Margaret's relationship.
* Print Page 126

Employers are not obligated to provide accommodation to employees who have a relationship or association with people with disabilities [Appendix to 29 C.F.R. Part 1630, at 406 (1994)]. For example, under the ADA employers are not required to provide modified work schedules as an accommodation to enable employees to care for spouses or children with disabilities or to carry out volunteer activities related to persons with disabilities.

RETALIATION AND COERCION

As discussed in Chapter Two, it is unlawful to discriminate against an individual because he or she has opposed an employment practice of the employer, has filed a complaint, or has testified, assisted, or participated in an investigation, proceeding, or hearing to enforce provisions of the Act [29 C.F.R. ? 1630.12(a)]. It is also unlawful to coerce, intimidate, threaten, harass, or interfere with any individual in the exercise or enjoyment of any right protected by the ADA or because that individual aided or encouraged any other individual to exercise any right protected by the ADA [29 C.F.R. ? 1630.12(b)].

DEFENSES

The Title I regulation identifies six defenses to a charge of employment discrimination on the basis of disability [29 C.F.R. ? 1630.15]. The list is not, however, intended to be exhaustive.

  1. _Disparate _treatment. Disparate treatment means treating an individual differently on the basis of disability. Disparate treatment, for example, has occurred when a public school district has a policy of firing individuals with AIDS regardless of the individuals' qualifications. A defense to a charge of disparate treatment is that the alleged actions were based on legitimate, nondiscriminatory reasons unrelated to the person's disability, such as unsatisfactory performance. The defense of a legitimate nondiscriminatory reason is rebutted if the alleged nondiscriminatory reason is shown to be a pretext for discrimination.
  2. __Disparate impact of selection _criteria. If a charge is made that selection criteria, although uniformly applied, have an adverse impact on people with disabilities, the employer must show that these criteria are job-related and consistent with business necessity and that no reasonable accommodation is available. If the employer's criteria are based on avoidance of a "direct threat to health or safety," the employer must show that the concern is real, not based on prejudice, and must meet the stringent requirements under the ADA to establish that such a "direct threat" exists.
* Print Page 127

3. __Disparate impact of policies and procedures (besides selection _criteria). If employer policies and procedures, other than selection criteria, are shown to have an adverse impact on people with disabilities, even when uniformly applied, the employer must show that the policies and procedures are job-related and consistent with business necessity, and that implementation of the policy or procedure cannot be accomplished with reasonable accommodation.

4. _Undue _hardship. As discussed earlier in the chapter, if the charge is a failure to provide reasonable accommodation, the public school district must show that undue hardship would result from providing reasonable accommodation or that reasonable accommodation was in fact offered and refused.

5. __Conflict with other federal _laws. Where other federal laws require or prohibit an action in apparent conflict with the ADA requirements, the employer's obligation to comply with the conflicting standard is a defense. The employer's defense of a conflicting federal requirement or regulation may be rebutted by showing that it is a pretext for discrimination, by showing that the federal standard did not in fact require the discriminatory action, or by showing a non-exclusionary means to comply with the standard that would not conflict with the ADA.

6. __An action that is specifically permitted by sections 1630.14 or 1630.16 of the Title I _regulation. It may be a defense to a charge of discrimination that an action is specifically permitted by sections 1630.14 or 1630.16 of the Title I regulation. These sections cover permissible inquiries and medical examinations; religious preferences; the regulation of alcohol and drugs; the regulation of smoking; drug testing; infectious and communicable diseases in food handling jobs; and certain insurance and benefit plan practices.

* Print Page 128

IMPLEMENTATION

Conducting the Review of Employment Policies and Practices

This section provides suggestions for the following activities:

new hires, and current employees

IMPLEMENTATION

The ADA requires school districts to ensure that qualified persons with disabilities are given equal opportunity to compete for available jobs, to maintain their jobs, and to advance through the organization as far as their abilities will take them. Qualified persons with disabilities must also have equal access to all benefits and privileges afforded other employees. To ensure that your school district is in compliance with the ADA, it is recommended that you conduct a thorough review of school-system-wide policies and practices in the area of employment.

The approach to reviewing policies and practices suggested here begins with a preparation phase in which a staff coordinator is selected, an appropriate subcommittee is put in place and trained, and the review is organized, using appropriate organizational units.

Next, essential job functions are carefully defined on a system-wide basis. Key persons familiar with specific organizational units review job descriptions in their unit to ensure that these descriptions define the desired _outcome or _results of a job without inappropriately specifying the _manner in which jobs are usually performed.

Finally, the school system reviews all of its employment-related policies and procedures. Areas to be examined include the provision of reasonable accommodations (to ensure their availability to both prospective hires and incumbents and to inform supervisors and interviewers that such accommodations must be provided when requested); all steps of the hiring process; and all policies related to job incumbents, including their access to benefits and privileges.

The following section will review each of these three major areas and the substeps essential to address each one fully. Worksheets designed to assist in this process are introduced at the point in the process where they would be used.

Prepare to Conduct the Review

This phase includes the following steps:

1. __Identify, recruit and train the employment _subcommittee. The starting point for self-evaluation of employment policies and practices is to designate an appropriate staff person to coordinate the effort. Frequently, but not always, this is the same person

* Print Page 129

named as the ADA coordinator. Position titles for persons who have assumed this responsibility in other school districts include director of personnel, human resources director, legal counsel, or others in an overall supervisory capacity for personnel affairs.

Next, list the organizational units of your school district that will participate in the self-evaluation. The units you will work with depend on the size of your school district. You will want to break down the process into units of the size that will best facilitate reliable communication between staff in the unit and the employment subcommittee. Also, units should have similar employment-related procedures.

For each of the organizational units you have identified, identify key employment-related decision-makers. Either choose an appropriate representative to the employment subcommittee or request the decision-maker to designate someone appropriate. Individuals involved in the self-evaluation should have significant expertise to contribute to the review process. The self-evaluation process will proceed more efficiently if representatives are generally familiar with employment-related policies and procedures.

All subcommittee members should be fully informed of the ADA requirements in the area of employment. If at all possible, all subcommittee members should attend employment-related ADA training. At a minimum, they should receive a detailed briefing from the ADA coordinator or another equally informed person. Each individual should also review the ADA statute, the regulations implementing Title I and Title II, this self-evaluation guide, the U.S. Equal Employment Opportunity Commission's Title I technical assistance manual, the U.S. Department of Justice's Title II technical assistance manual, and any other information the ADA coordinator determines is essential.

Worksheet 5-1a may be used to compile a basic list of units, key employment-related decision-makers, and designated subcommittee representatives.

2. __Organize and schedule the self-evaluation _process.

Convene the subcommittee to determine how to organize the self-evaluation process. Identify the steps you will follow and the forms you will use. You may wish to use the forms provided in this book as they are, adapt them to suit the needs of your school district, or utilize forms obtained from another source (such as those noted in the _Resources section). Together, the subcommittee should determine how to address any obstacles that could impede its mission.

In order to efficiently organize the self-evaluation process, it will be helpful to collect information regarding how employment-related decisions are made in each organizational unit. The

* Print Page 130

designated representative to the employment subcommittee may be able to supply this information. It is important to note that key decision-makers regarding employment will be contacted during the self-evaluation and school districts are encouraged to train these decision-makers on the requirements of the ADA.

At this stage you should also develop a plan to ensure appropriate participation by individuals with disabilities. Participation can occur in a variety of ways. For example, an initial meeting or series of open meetings to identify employment-related issues can help in planning the review process. Individuals with disabilities, and, in particular, employees with disabilities, can often identify key issues that may not be readily apparent to employees of the school district who do not have disabilities.

As the self-evaluation proceeds, individuals with disabilities can serve as members of review teams. Their perspectives on the impact and relative importance of barriers to equal employment opportunity may be helpful. They may be able to propose modifications to policies and procedures that would not occur to other individuals. They should also be involved in reviewing modifications to policies and procedures proposed by the subcommittee or by organizational units.

It is suggested that school districts develop and publicize an initial schedule for the entire employment-related self-evaluation process. Include all steps of the self-evaluation and assign target completion dates for each step.

Worksheet 5-1b may be used to record information on key employment-related decision-makers within each unit. Note that information provided should cover all categories of employees, including seasonal workers, employees covered by collective bargaining units, and employees hired through outside agencies. Where distinctions exist for any of these categories of employees, record them. Use Worksheet 5-1c to document the participation of individuals with disabilities in the self-evaluation.

3. __Train or inform other key _personnel. In addition to individuals who are on the employment subcommittee and key employment-related decision-makers, each organizational unit contains other individuals who play a significant role with respect to employment-related decision-making, planning, and administration. These individuals should also receive ADA training, or at least receive educational materials on the ADA. Care should be taken either to train or to inform these persons of ADA requirements in a way that will capture their attention. It is important that education on the ADA be provided as early as possible in the self-evaluation process.

* Print Page 131

Identify Essential Job Functions

Because identifying "essential job functions" of job categories is critical to determining compliance with many ADA employment requirements, one of the first steps that school districts should undertake in the employment self-evaluation is to reexamine the essential job functions associated with each job category. Although job descriptions are not required by the regulations, it is an excellent idea for school districts to develop or update job descriptions that identify essential job functions.

Worksheet 5-2 provides a vehicle to identify job categories, determine whether essential job functions have been defined in a job description, and determine whether the job category is included in a collective bargaining agreement. If a job description that identifies essential job functions does not exist, Part B of Worksheet 5-2 suggests a process for developing job descriptions that identify essential job functions.

Review Policies and Procedures

1. __Ensure that reasonable accommodation is available and offered when _appropriate.

Since one of the ADA's most important provisions in the area of employment is the requirement that employers make reasonable accommodation for qualified applicants and employees with disabilities upon their request, public school districts should review their policies and procedures for handling requests for reasonable accommodation from qualified applicants or employees with disabilities. A poorly handled response to a request for reasonable accommodation from a qualified person with a disability could result in a lawsuit.

Although reasonable accommodation must clearly be determined on an individualized basis, school districts can anticipate certain types of accommodation requests and take steps to meet those requests. For example, an applicant who has a hearing impairment may request that a sign language interpreter be present for a job interview. School districts may want to have a listing of providers of interpreters in their local area. Developing or updating policies and procedures related to reasonable accommodation, including designation of responsible staff who will facilitate responses to requests, can ensure consistency, efficiency, and cost-effectiveness in your school district's response. Your school district should also make sure that it provides adequate funding for reasonable accommodation in its budget.

* Print Page 132

Worksheet 5-3, Part A, may be used to determine whether commonly requested reasonable accommodations are currently available. Part B may be used to collect information on resources that may be used to respond to accommodation requests. Part C may be used to determine how responses to accommodation requests are currently documented, including those believed to constitute undue hardship. Note that a sample Record of Accommodation request is attached to Part C.

2. __Review policies and procedures for employee _recruitment.

School districts must take steps to comply with the ADA requirements at every phase of the recruitment process.

Worksheet 5-4 divides the recruitment process into key steps and identifies tasks school districts must undertake in order to be in compliance. For each stage of the recruitment process, the worksheet raises key questions that should be answered by individuals with the authority to address such issues.

-- _Advertising. It is important to ensure that the content of job advertisements, whether internal postings, newspaper advertisements, or solicitations through outside recruiters, is nondiscriminatory and accurately portrays the essential functions of the job. Procedures should be in place to ensure that job announcements are reviewed for ADA compliance.

Worksheet 5-4 can assist you in identifying the ways in which job vacancies are advertised, in reviewing the content of job advertisements, and in developing procedures for content review for future advertising.

-- _The _application _form. The content of application forms must be reviewed to ensure that questions are not presented regarding the existence of an applicant's disability or the nature and severity of the disability, or that questions are not presented that constitute medical inquiries. School districts must provide reasonable accommodation to enable applicants with disabilities to complete application forms. Also, the site where applicants receive or complete applications must be accessible to and usable by persons with disabilities.

Worksheet 5-4 can assist you in reviewing application forms to ensure that they do not request inappropriate information, in developing procedures to handle reasonable accommodation requests related to the application form and in reviewing the physical accessibility of sites where applicants receive or complete application forms.

* Print Page 133

-- __Conducting the job _interview. Like application forms, job interviews must not include questions that seek to determine whether an applicant has a disability or to ascertain the nature and severity of the disability. Medical inquiries are also prohibited. In addition, reasonable accommodation must be provided to enable applicants with disabilities to have equal opportunity in the interview process. Interview sites must be accessible to and usable by persons with disabilities.

As noted above, it is highly recommended that all staff who are involved in the interview process undergo ADA and disability awareness training to better prepare them for interviews of candidates with disabilities. Your school district may want to contact your regional Disability and Business Technical Assistance Center for information about upcoming training or the availability of resources you can utilize for internal training. (See _Resources.)

Worksheet 5-4 can assist you in reviewing interview questions to ensure that they are nondiscriminatory, in developing procedures to handle reasonable accommodation requests for job interviews, and in reviewing the accessibility of sites where interviews take place.

-- _Job _tests. If a job test screens out, or tends to screen out, individuals with disabilities, the test must be job-related and consistent with