Exceptional Proff 602

3. Modifications that allow disabled employees to enjoy the same benefits of employment as their non-disabled counterparts (Equal Employment Opportunity Commission, n.d.-a)

UNDUE HARDSHIP

According to the code, undue hardship focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business (29 C.F.R. pt. 1630 app. § 1630.2(p), 1997).

So, where is the line between reasonable accommodation and undue hardship? The answer, as is the case with most legal questions, depends on the circumstances. Generally, employers must do what is necessary to make jobs accessible and feasible by disabled employees. This might mean widened doorways, automatic doors, ramps, and handrails for the mobility impaired. It might mean special telecommunications equipment for hearing and/or sight impaired. It might mean schedule modifications for employees with an entire host of different conditions that affect such matters as bathroom breaks, medication needs, doctor appointments, and so on (Equal Employment Opportunity Commission, n.d.-a).

There is a limit, and employers are not on the hook to accommodate every disability in every circumstance. When an undue hardship exists, the employer is within their legal rights to decline. Whether or not an undue hardship exists, again, depends on the circumstances. Usually, undue hardship is found where there is an extreme burden on the part of the employer that cannot be overcome through any less expensive or effortful means.

For example, if an employer operates his business out of a building that was built prior to modern ADA statutory requirements, and the doors, corridors, stairwells, and any elevators therein consequently do not allow for easy access by wheelchair, he is obviously not required to knock down his building and build a new one, nor is he required to undertake the kind of tremendous renovation that would be required to fix this issue. He excused from the requirement of accommodation by way of undue hardship.

However, one or two doorways needing widening, where such changes would not structurally compromise a building, are probably not sufficient to meet the level of scrutiny required for the “undue hardship” standard (Americans with Disabilities Act, 1995).

Defining Disability

Another question that naturally follows from the ADA requirements of accommodation is “what constitutes a disability?”

The ADA defines “disability”, generally, as:

1. A physical or mental impairment that substantially limits one or more major life activities of such individual

2. A record of such an impairment

3. Being regarded as having such an impairment” (Americans with Disabilities Act, 2009)

Although this sounds fairly clear on its face, the proper application — as is the case with most legislative language — can be as clear as mud. Some disabilities might at first glance seem unquestionably to meet the standard of “substantially limiting one or more major life activities,” but a closer examination only brings more questions.

For example, the mobility impairments of a quadriplegic are obviously covered, but what if an individual walks with a slight limp, or uses a cane ? 

The blind are unambiguously protected by the ADA, but when does a person go from simply having poor eyesight requiring prescription glasses to being considered disabled under the ADA? Again, the issue rests on the degree of limiting life activities (Equal Employment Opportunity commission, N.d.-c). If one is a little “hard of hearing,” are they entitled to the same accommodations required for a completely deaf person?

It gets worse. Mobility, sight, and hearing are classic, intuitive examples of disabilities, but what about less established conditions? Does the ADA cover people who suffer from dwarfism? It is estimated that two out of every three people in the United States are medically considered obese. So if it limits life activities as it sometimes does, is obesity considered a disability? The answer to these questions depends on the circumstances. HR professionals should always err on the side of caution and when in doubt, should assume a disability exists, and act appropriately. More often than not, the cost of accommodation outweighs the risk of litigation and breaking the law.

ADA — Additionally…

There are a few other miscellaneous key points to understand about the ADA and its requirements. A disabled employee may request accommodations for a disability at any time during the employment relationship; he or she is not required to disclose such disabilities or request accommodations at the time of hiring. If a disability is not obvious, an employer may ask the individual in question for documentation validating the disability and the accommodations needed. It is important to note that  this is   illegal practice if the disability is obvious. Also, in these instances, employers should be cognizant of and sensitive to the disabled person’s right to privacy.

Although the individual may be required to disclose their specific medical details to the employer for the purposes of ADA accommodations, and although the individual’s appearance/behavior and/or the accommodations made may render the nature of the disability readily apparent to co-workers, customers, and third parties, the employer must still maintain the confidentiality of the details of an individual’s disability, ADA status, accommodations, etc. An HR professional should have no discussions concerning an employee’s disability with anyone other than the employee (Equal Employment Opportunity Commission, n.d.-a).

An employer is only obligated, where appropriate, to provide reasonable accommodations to perform the job in question. It is under no obligation to provide accommodations necessary for the individual to use in their personal lives outside of work. For example, employers are generally not required to provide accommodations such as wheelchairs, prosthetic limbs, service animals, etc. as these are usually also necessary for a disabled person to perform personal functions unrelated to work. Additionally, an employer is only required to provide what is necessary to perform the job at hand. In other words, where an accommodation may be accomplished through more than one means, the employer is not obligated to consider which means the employee in question would want.

Finally, regardless of whether an employer is required under the ADA to provide an accommodation, the employee is not required to accept the obligation. For example, an employer may be required to provide TTY telephones for a deaf person, but the employee may refuse to use the TTY phone, and if this refusal should result in the employee’s inability to perform the job in question, the employer may lawfully terminate him or her (Equal Employment Opportunity Commission, n.d.-a). Although a smart HR professional would first consider reassigning the employee to a different position in the interest of avoiding potential hostility, litigation and poor public perceptions.

Age Discrimination

The Age Discrimination in Employment Act (ADEA) of 1967 and its subsequent amendments prohibit discrimination against anyone 40 years of age or older in employment decisions (Equal Employment Opportunity Commission, n.d.-d). Although this ‘40 years or older’ threshold may seem arbitrary, the purpose of this law was specifically to prevent American businesses from abandoning older workers who had earned higher wage brackets through years of service in favor of younger, cheaper employees. Historically, the ADEA was enacted roughly 20 years after the end of World War II during which most American soldiers were in their younger 20s and during the most turbulent period of the Vietnam War when the average American soldier age was 19, so once can also see both noble intention to protect veterans from unemployment and a strategy to support the war effort in the design of this legislation.

The ADEA only applies to employers with 20 or more employees (Equal Employment Opportunity Commission, 2008). Although federal law provides no protection for age-based discrimination against anyone under the age of 40, several states have enacted their own laws pertaining to age-related discrimination that supplement federal mandates. HR professionals should maintain familiarity with their state laws, and avoid discrimination against anyone based on age irrespective of the law wherever possible.

Pregnancy Discrimination

The Pregnancy Discrimination Act of 1978 prohibits discrimination on the basis of pregnancy in employment decisions (Equal Employment Opportunity Commission, n.d.-e). Further, the Family Medical Leave Act (FMLA) of 1993 provides additional benefits for pregnant couples, including up to 12 weeks of unpaid leave per year (United States Department of Labor Wage and Hour Division, n.d.). FMLA will be discussed in more detail in a subsequent lesson.

Protection Against Discrimination: What Else?

Aside from those classifications specifically discussed, there are few other specific protections against discrimination afforded by federal law. Technically speaking, an employer is free to discriminate for any reason or no reason at all, so long as the reason is not a classification protected by law. For example, if an employer really dislikes red shoes, and refuses to hire a person because he or she wears red shoes, then as arbitrary and baseless as this may seem, it is not — per se — illegal.

However, employers should carefully consider any nexuses between a basis for discrimination and established protected classes. For example, hair color is not, on its own merit, a specifically prescribed classification of discrimination under federal law. However, as discussed in Lesson 1, race is a protected class, and there are very strong correlations between hair color and race, such that discrimination based on the former would most likely be construed in a court of law as illegal based on the latter. So rather than shoes, if that same employer instead despises people with red hair, he or she will very likely commit illegal discrimination if that aversion is used as a basis for employment decisions.

Conclusion

When in doubt, the rule of thumb for any HR professional should be to assume potential liability and act in the best interests of the company. Do  not  discriminate based on  anything other than the   actual job qualifications.  We will talk more about the concept of qualifications in Lesson 3.

In this week’s lesson, we covered the very expansive and complicated Americans with Disabilities Act, as well as other protections against discrimination based on age, pregnancy, and other factors. In next week’s lesson, we will discuss some ancillary concepts related to the area of discrimination, as well as legislative efforts to enforce anti-discrimination laws and proactively prevent discrimination in American society.