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The Employer's Duty to Accommodate

In passing the Americans with Disabilities Act (ADA) in 1990, Congress attempted to level the playing field for disabled workers. The ADA requires employers to make reasonable accommodations so that workers with disabilities can secure and retain employment. By requiring employers to make reasonable accommodations, the ADA has had a positive effect on the placement of disabled individuals in the workforce, and has raised the consciousness of U.S. employers while reducing discrimination against the disabled. The language of the ADA, however, is not precise as to the "accommodations" that an employer is required to make for disabled persons during hiring and employment. Courts around the country also disagree on this issue, and until Congress or the Supreme Court offers greater clarification, many accommodation disputes will likely end up in court.

What is Reasonable Accommodation?

The ADA prohibits employers from engaging in a broad range of discriminatory conduct on the basis of an employee's disability. Employers may not:

  • Limit, segregate or classify jobs in such a way as to discriminate;
  • Contract or arrange with others to discriminate;
  • Utilize discriminatory standards, criteria, or methods of administration; or
  • Exclude or deny qualified individuals from jobs or benefits on the basis of disability.

In addition, an employer must make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." Congress might have stopped with this language, and allowed employers and the courts to determine what steps the "reasonable accommodation" standard requires. Instead, the law provides an exception if accommodation would cause "undue hardship" to the employer's business. The ADA therefore strikes a balance -- between the accommodations an employee needs or desires in order to meet the requirements of a certain job, and the investment and modifications an employer must make in order to accomplish those accommodations.

Examples of "Accommodations"

Reasonable accommodations under the law can include changes to the physical work environment, or to the job itself. Changes to the work environment usually require altering facilities so that they are accessible and usable for persons with disabilities -- including installing wheel chair access doors, ramps or elevators, handrails, different chairs, desks or computers, or different lighting; and realizing different configurations for furniture or machinery. Job changes include such things as restructuring the job, shortening or modifying the work schedule, transferring the employee to another vacant job, acquiring or modifying necessary equipment, and adjusting examinations, training materials or policies.

"Undue Hardship" Under the ADA

"Undue hardship" under the ADA means "significant difficulty or expense" for the employer. Factors the employer may consider in weighing undue hardship include:

  • Nature and cost of the accommodation;
  • Financial resources of the business or facility that would require the accommodation;
  • The number of workers at the business or facility;
  • Impact of the accommodation on the facility's expenses, resources or operations;
  • Employer's overall size, nature and resources; and
  • Type of operations impacted by the accommodation.

The standards for reasonable accommodation and undue hardship have proven difficult for courts to identify and apply uniformly. Employers are only required to accommodate disabilities of which they are aware, meaning that an employee cannot bring an ADA claim for a condition that was unknown to the employer. Additionally, sometimes the parties disagree on whether the employee's condition is a disability under the law. Deafness and quadriplegia are clearly disabilities, but many conditions are harder to judge. Is a sore back a disability? What about poor eyesight?

What Accommodation is Required?

Assuming the employer does not contest the employee's disability, the next question is the required accommodation. The ADA does not specify who is supposed to take the initiative in accommodating the employee's disability, so employers may not know whether it's their duty (or the employee's duty) to propose changes that would allow the employee to perform the job. Some courts require an interactive process between the employer and the disabled individual, sometimes with the employer taking a more affirmative role.

Courts determine the reasonableness of the accommodation on a case-by-case basis. What might be reasonable in one context may not be in another. For example, if a person in an office job needed help from another employee to lift items weighing over 25 pounds, such help may be totally reasonable. An airport baggage handler who could not lift over 25 pounds, however, could not reasonably rely on the same help. In the latter instance, the assistant would be performing a substantial portion of the individual's job. In making a "reasonableness" determination, courts do look at the essential functions of the job in questions. If the employee cannot perform the job's essential functions with or without reasonable accommodation, the employee is not qualified for the job. An employer does not discriminate by denying a job to a person who is not qualified to perform it.

Inquiries and Exams

The ADA protects disabled individuals during the hiring process, by prohibiting employers from inquiring about disabilities or subjecting prospective employees to medical tests before hiring them. However, employers may ask about a candidate's abilities concerning essential job functions. After making a job offer, the employer may require a medical examination, so long as the examination is given to all newly hired employees.

Legal Help with an ADA Claim

The Americans with Disabilities Act (ADA) is an important law, helping millions of disabled persons join the nation's workforce. Yet the ADA is also a fairly recent law, one that employers, attorneys, and courts are still working to fully understand and properly apply. Individuals with disabilities have a right under the ADA to the same opportunities and benefits as the non-disabled. A number of questions can arise in any ADA case, and many can be difficult to answer.  For example, which accommodations are reasonable, and which would create an undue hardship? If you believe that your rights may have been violated under the ADA in the employment context -- as a job applicant or as a current or former employee -- contact an employment law attorney to discuss your options and protect your legal rights.

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