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Innovations of the Americans With Disabilities Act Confronting Disability Discrimination in Employment

The Americans with Disabilities Act of 1990 (ADA)1 is the nation's first comprehensive and broadly appli- cable law prohibiting discrimination in employment on the basis of disability. Adopting key language from the Rehabilitation Act of 1973,2 an earlier federal law with more limited coverage, as well as other federal and state employment discrimination laws, the ADA introduced a series of statutory innovations to advance the goal of en- suring greater employment opportunities for the mil- lions of Americans with disabilities. This Viewpoint ex- plores 3 notable innovations in the ADA relating to coverage, medical examinations and inquiries, and rea- sonable accommodation.

Coverage The ADA's employment discrimination provisions ap- ply to state and local government employers and pri- vate sector employers with 15 or more employees. Fed- eral agency employers are subject to comparable provisions of the Rehabilitation Act. The ADA does not

cover all individuals with a physical or mental impair- ment. Congress limited the ADA's protections to indi- viduals with substantially limiting impairments based on evidence that individuals with serious impairments are more likely to be subject to pervasive and widespread discrimination.

Limiting coverage to individuals with serious impairments created a dilemma that impeded success- ful implementation of the ADA for many years. For example, between 1999 and 2008, plaintiffs lost more than 90% of ADA cases, and the leading cause was the failure to prove that their disability was sufficiently serious.3 On the other hand, individuals with extremely serious impairments were often found to be unable to perform essential job-related tasks safely and effi- ciently. Consequently, many courts held that individu- als were either not impaired enough to be protected by the ADA or too impaired to be a “qualified individual with a disability” as required by the ADA.1 This problem was eventually addressed by the ADA Amendments Act of 2008,4 which made it easier for individuals to establish that they have an impairment causing a sub-

stantial limitation of a major life activity (eg, walking, seeing, breathing). The amendment expresses a con- gressional intent for the ADA to be construed in favor of “broad coverage of individuals under this Act.”4

Besides covering individuals with a current disabil- ity or a record of a disability, the ADA adopted the inno- vative coverage model of the Rehabilitation Act that also prohibits discrimination against individuals who are “re- garded as having a disability.”1 Coverage under the “re- garded as” part of the definition of disability includes 3 situations: (1) individuals who have impairments that are not substantially limiting but are erroneously regarded as substantially limiting; (2) individuals who have im- pairments that are only substantially limiting because of the attitude of others; and (3) individuals who have no impairment at all but who are erroneously regarded as having a substantially limiting impairment. The ADA Amendments Act also strengthened the “regarded as” provision by providing that the individual need not be regarded as having a substantially limiting impairment.5

Another novel provision of the ADA involves associational discrimination. During the 1980s there were several in- stances of individuals being subject to employment discrimination because they had a friend or family member with HIV/AIDS. To ban such stigmatizing and unfounded practices, the ADA prohibits discrimination because of the known dis-

ability of an individual with whom an applicant or em- ployee has a relationship or association. This provision has been applied broadly and extends well beyond stig- matizing conditions. As a result, the most commonly al- leged violation is that employers discriminated against an applicant or employee to avoid the increased health care costs of a covered dependent.

Medical Examinations and Inquiries Before enactment of the ADA, it was a common prac- tice of many employers to require applicants to com- plete a detailed medical questionnaire at the same time they completed a job application.6 Some employers would then refuse to give further consideration to indi- viduals who, for example, indicated that they had pre- viously filed workers' compensation claims or had chronic health conditions. The ADA banned preemploy- ment medical inquiries to prevent employers from con- sidering an individual's disabilities before considering an individual's abilities.7

To increase employment opportunities, the ADA contains an innovative statutory provision regulating

To increase employment opportunities, the ADA contains an innovative statutory provision regulating employer medical examinations and inquiries based on the stage of employment.

VIEWPOINT

Mark A. Rothstein, JD Institute for Bioethics, Health Policy, and Law, University of Louisville School of Medicine, Louisville, Kentucky.

Corresponding Author: Mark A. Rothstein, JD, Institute for Bioethics, Health Policy, and Law, University of Louisville School of Medicine, 501 E Broadway, Ste 310, Louisville, KY 40202 (mark.rothstein @louisville.edu).

Opinion

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employer medical examinations and inquiries based on the stage of employment. At the initial or preemployment stage, before there has been an offer of employment, employers are not per- mitted to make any inquiries into the existence or nature of an individual's disabilities. Thus, at an interview the employer is only permitted to ask whether the applicant has the ability to perform essential job functions, such as driving a truck, lifting boxes, or manipulating small parts. Although this limitation on disclosing health information is valuable for individuals with medical or “hid- den” impairments (eg, diabetes, hypertension, or mental illness), it is not helpful for individuals with sensory impairments (eg, blindness or deafness) or mobility impairments (eg, wheelchair use) whose impairments are obvious. Nevertheless, all individuals with disabilities are protected by the antidiscrimination provi- sions of the ADA.

Following a conditional offer of employment, an employer may require a preplacement examination or what the ADA terms an “employment entrance examination.”1 These examinations may be of unlimited scope and may include a requirement that the indi- vidual sign an authorization releasing his or her medical records to the employer's physician or medical consultant. After considering this information an employer may withdraw the offer of employ- ment if it reasonably determines that the individual is unable to perform the requirements of the job with or without reasonable accommodations.

Once an individual has been employed, medical examinations and inquiries must be “job-related and consistent with business necessity.”1 In other words, these medical evaluations must assess whether a current employee is still able to perform the essential func- tions of the job. More comprehensive examinations and inquiries are permitted only with the consent of the employee. Today, this issue often arises in the context of employer-sponsored wellness and health promotion programs.

A trend in occupational medical examinations that predates the ADA is using more limited, evidence-based medical assessments of an individual's fitness for duty.8 The ADA promotes this trend by mak- ing comprehensive medical examinations unlawful except at the pre- placement stage. The effect has been to narrow the permissible scope of most medical inquiries, thereby protecting the privacy in- terests of applicants and employees, and making clearer the dis-

tinction between limited fitness for duty evaluations and more com- prehensive medical examinations by individuals' personal physicians.

Reasonable Accommodation Perhaps the most innovative and distinctive provision of the ADA is that employer responsibilities go beyond nondiscrimination to include providing reasonable accommodations that enable the employment of qualified individuals with disabilities. Because of the variety of workplace settings and disabilities, the ADA provides a nonexclusive list of the types of accommodations that may be required: making facilities accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acqui- sition or modification of equipment or devices, adjustment or modification of examinations, training materials, or policies, and the provision of qualified readers or interpreters. Reasonable accommodation is not required, however, if it would result in “undue hardship” to the employer, defined as an action requiring significant difficulty or expense.1

The initial burden is on the employee to request an accommo- dation, but the subsequent interactive process involving the em- ployer and employee is intended to result in an agreed-upon ac- commodation. Granting leave to obtain medical treatment and other measures that focus specifically on the particular employee have been less contentious than measures in which the interests of other, nondisabled employees also are implicated. Tensions with others may arise, for example, in reassignment to a vacant position sought by other employees and job restructuring that conflicts with the terms of a collective bargaining agreement.

Moving Forward Laws not only reflect societal values, they also help to shape them. Through enforcement actions under the ADA, many individuals have been able to redress discriminatory treatment and reaffirm the prin- ciple of nondiscrimination. The ADA also has enormous symbolic value. For the last 25 years, the ADA has clearly articulated the na- tional policy of inclusion for individuals with disabilities in employ- ment, public accommodations, public services, and other essential domains of modern life. As a result of innovative employment pro- visions, the ADA has ensured that a diverse, productive workforce necessarily includes individuals with disabilities.

ARTICLE INFORMATION

Conflict of Interest Disclosures: The author has completed and submitted the ICMJE Form for Disclosure of Potential Conflicts of Interest and none were reported.

REFERENCES

1. Americans with Disabilities Act, as amended, 42 USC §§ 12101-12213 (1990).

2. Rehabilitation Act of 1973, 29 USC §§ 701-794 (1973).

3. Hoffman S. Settling the matter: does title I of the ADA work? Ala Law Rev. 2008;59(2):305-344.

4. ADA Amendments Act, Pub L 110-325 (2008).

5. Befort S. Let’s try this again: the ADA Amendments Act of 2008 attempts to reinvigorate the “regarded as” prong of the statutory definition of disability. Utah Law Rev. 2010;2010(4):993-1028.

6. Rothstein MA. Medical Screening and the Employee Health Cost Crisis. Washington, DC: BNA Books; 1989.

7. EEOC. ADA enforcement guidance: preemployment disability-related questions and medical examinations. http://www.eeoc.gov/policy /docs/medfin5.pdf. Accessed May 13, 2015.

8. Lukcso DG. Fitness for duty. In: Guidotti TL, et al, eds. Occupational Health Services: A Practical Approach. 2nd ed. New York, NY: Routledge; 2013: 287-294.

Opinion Viewpoint

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