Americans with Disabilities Act

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Purpose

Prohibits discrimination in employment against qualified individuals with disabilities.

What actions are covered?

Hiring, firing, promotion, pay, and all other terms and conditions of employment.

What employers are covered?

Private employers, unions, and employment agencies with 15 or more employees; local and state governments (any size).

Who is protected?

A "qualified person with a disability," which is someone who can perform the essential functions of the position, with or without reasonable accommodation.

What is a disability?

The term "disability" has 3 definitions:

• a physical or mental impairment that substantially limits one or more of an individual's major life activities;
• a record of such an impairment; or
• being regarded as having such an impairment

Note: As a result of three recent Supreme Court decisions (referred to at the Sutton trilogy), a person with diabetes will have to show that she/he still meets the definition of disability after taking any mitigating measures -- such as insulin and oral medications. Courts are required to do an individual assessment of each person, looking at how diabetes affects him/her. This will include such things as the impact of insulin and oral medication on the person and any diabetes-related complications.

What is a physical impairment?

Any physiological disorder, condition, cosmetic disfigurement, or anatomical loss affecting the neurological, musculoskeletal, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic & lymphatic, sensory, skin, or endocrine systems.

Note: The bottom line is that it has never been a problem for people with diabetes to show they have a physical impairment.

What are major life activities?

Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Note: These are only examples listed in the Equal Employment Opportunity Commission (EEOC) regulations. It is not an exhaustive list. In dealing with the Supreme Court's recent decisions, people with diabetes need to consider all possible major life activities. Some others to consider -- depending on individual circumstances -- are eating, metabolism of food, sleeping, reproduction, and elimination of waste.

What does it mean to "substantially" limit a major life activity?

It means that the person is: unable to perform a major life activity that the average person in the general population can perform; or significantly restricted as to the condition, manner, or duration under which the person can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

The following factors are considered:

• the nature and severity of the impairment;
• the duration or expected duration of the impairment; and
• the permanent or long term impact or expected permanent or long term impact of or resulting from the impairment.

Note: The meaning of "substantially limit" is the crux of problem created by the recent Supreme Court decisions. The above explanation of "substantially limit" comes from EEOC regulations which were themselves put into question by the recent Supreme Court decisions. Courts will now look only at the person's condition at the time of the alleged discrimination, not the expected long-term impact.

Direct Threat Defense

An employer can reject someone who, as a result of his/her disability, poses a direct threat to the health or safety of themselves or other individuals in the workplace that cannot be eliminated by reasonable accommodation.

Note: "Direct threat" is the employer's defense in the majority of the cases in which the employer claims that a person with diabetes cannot do the job. In such cases, the employer is almost always worried that the person with diabetes will become incapacitated as a result of hypoglycemia.

Reasonable Accommodations

If the person qualifies under the law, the employer is required to make reasonable accommodations such as making existing facilities readily accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, and modifying equipment. The accommodation must be provided unless doing so would cause undue hardship, defined as an action requiring significant difficulty or expense.

Note: The reasonable accommodations that people with diabetes usually need are things like short breaks to check blood glucose levels, eat, and take insulin; the ability to have or store diabetes-related supplies at the workplace; the ability to eat on the job - things which are generally neither difficult to provide nor expensive. However, even when more extensive modifications are needed (such as adjusting arrival or departure times, allowing a part-time schedule, or altering when certain functions are performed) the employer must provide these accommodations unless it can show undue hardship.

Proving Discrimination

To ultimately prevail in a discrimination case, the person with diabetes must show that the employer took the action it did because of the person's diabetes.

Note: In a surprisingly large number of diabetes cases, the employer admits that the action being challenged was taken because of the person's diabetes. The case then revolves around whether the person was covered by the law (under the definition of disability) and, if so, whether the person's diabetes would create a direct threat to others. However, in other cases the employer doesn't admit that it was motivated by the person's diabetes and, in such cases, the employee needs to muster persuasive direct or indirect evidence of discrimination.

Process for Taking Legal Action:

• File a charge with the Equal Employment Opportunity Commission (EEOC) or with the state fair employment practices agency (known as "FEPAs") within 180 days of the discrimination, unless there is a state or local anti-discrimination law, in which case the deadline is extended to 300 days.

Note: While there usually is a state or local law, it is good to be on the safe side and file early. Filing with either the EEOC or FEPA constitutes dual filing with the other agency. The agency you file with is usually the one that then handles the matter. (This document describes the EEOC process; state/local procedures will vary.)

• EEOC will investigate and may offer mediation.
  
  
• EEOC will either determine that there has been a violation or that there has not been one. In the former case, the EEOC will try to settle the case and, if the matter isn't resolved, the EEOC will then decide whether or not to bring a lawsuit on the person's behalf.

Note: It is very rare for the EEOC to bring suit on behalf of an individual. This has happened only about 20 times in cases involving people with diabetes since the Americans with Disabilities Act went into effect.

• At the end of the EEOC's processing, it will issue a Notice of Right to Sue (along with its "Cause" or "No Cause" determination). The person then has 90 days to file a lawsuit in federal court.

Note: Many EEOC offices have huge backlogs. A person only needs to leave a case with the EEOC for 180 days before asking for a Notice of Right to Sue and then going on to court himself/herself. However, while it is useful to have a lawyer while going through the EEOC administrative process, realistically there is no way to handle a court case without one.

• File a lawsuit in federal court or state court.

Note: The case can be brought under federal law, state law, or both. Some state laws provide broader protection than the ADA - for example, some cover smaller employers and some have a broader definition of what a disability is. Especially in light of the recent Supreme Court decisions, state law should always be considered.