Back to Basics: Disability Nondiscrimination Laws 2011 National Equal Opportunity

1. Back to Basics: Disability Nondiscrimination Laws 2011 National Equal Opportunity Training Symposium August 30, 2011

2. Federal civil rights laws that ensure equal opportunity for people with disabilities in employment • Rehabilitation Act of 1973 • Americans with Disabilities Act of 1990 • ADA Amendments Act of 2008

3. Rehabilitation Act of 1973 • Rehabilitation Act of 1973 – Prohibits discrimination in programs conducted by Federal agencies, programs receiving Federal financial assistance, in Federal employment, and in employment practices of Federal contractors

4. Rehabilitation Act of 1973 continued…. • The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in title I of the Americans with Disabilities Act.

5. Rehabilitation Act of 1973 continued…. • Section 501: requires nondiscrimination in employment by Federal agencies • Section 503: prohibits employment discrimination by Federal government contractors

6. Rehabilitation Act of 1973 continued…. • Section 504: states “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that receives Federal financial assistance. Includes: • reasonable accommodation for employees with disabilities • program accessibility • effective communication with people who have hearing or vision disabilities • accessible new construction and alterations

7. Rehabilitation Act of 1973 continued…. • Section 508: requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public.

8. Americans with Disabilities Act

9. What is the ADA? Federal CIVIL RIGHTS legislation that says it is illegal to discriminate against people with disabilities in employment, state and local government services, private businesses, telecommunications and transportation

10. The Americans with Disabilities Act • Title I: Employment • Title II: Public Services • Title III: Public Accommodations • Title IV: Telecommunications • Title V: Miscellaneous

11. ADA Title I - Employment • An employer may not discriminate against an employee on the basis of disability in any aspect of the employment relationship. • The activities covered include: • Outreach, Application Process, Testing • Interviewing, Hiring, Assignments • Evaluation, Discipline, Medical Examinations • Compensation, Promotion, On-the-Job Training • Layoff/Recall, Termination, Leave • Benefits of employment e.g., health insurance

12. Title I ensures that qualified individuals with disabilities: • Have comparable access to the employment process • Are afforded an interactive process to determine reasonable accommodation • Are provided access to all benefits of employment including access to related services (e.g., gym, transportation)

13. Qualified Individual with a Disability A qualified individual with a disability means one who satisfies the requisite skill, experience, education, and other job-related requirements of the position such individual holds or desires, and who: with or without reasonable accommodation can perform the essential functions of such position.

14. What is the ADA Amendments Act ? • Americans with Disabilities Act Amendments Act (ADAAA) 2008 • Overall purpose -- “To restore the intent and protections of the Americans with Disabilities Act of 1990” • Effective January 1, 2009 • Regulations effective as of May 24, 2011

15. Definition of Disability An individual with a disability is one who: has has a record of, or is regarded as having a physical or mental impairment that substantially limits a major life activity.

16. Definition of Disability Now need not prevent, significantly or severely restrict the performance of a major life activity. Now, disability “shall be construed in favor of broad coverage “ and “ should not require extensive analysis"

17. Major Life Activities Caring for Oneself Performing Manual Tasks Seeing Hearing Eating These are basic activities that the average person in the general population can perform with little or no difficulty. • Sleeping • Walking • Standing • Lifting • Bending

18. Major Life Activity continued…. • Breathing • Learning • Reading • Concentrating • Thinking • Speaking • Thinking • Communicating • Sitting • Reaching • Interacting with Others • Working

19. Under the ADAAA, 'major life activities' is expanded to include "major bodily functions." Immune system Normal cell growth Digestive Bowel Bladder Brain Circulatory Cardiovascular systems Neurological

20. Major Bodily Functions continued…. • Respiratory • Endocrine • Lymphatic • Musculoskeletal • Special sense organs and skin • Genitourinary • Reproductive functions

21. New Standard • epilepsy • hypertension • multiple sclerosis • asthma • diabetes • major depression • bipolar disorder • schizophrenia • cancer Considered a disability even in remission, if when active would be substantially limiting Episodic Disabilities:

22. Mitigating Measures Positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are ignored in determining whether an impairment is substantially limiting.

23. Mitigating Measure Any device, measure, or medication that reduces the effects of the disability

24. What makes a job task essential? • If the position exists to perform the function • If there are a limited number of employees among whom the task can be distributed • If the function is highly specialized

25. Evidence of Essential Functions • Employer's judgment as to which functions are essential • Written job descriptions prepared before advertising or interviewing applicants • Amount of time spent performing the function

26. Evidence of Essential Functions • Consequences of not performing the function • The terms of a collective bargaining agreement • Work experience of past incumbents on the job • Current work experience of incumbents in similar jobs

27. Accomodations are: • Any changes in the work setting that enable qualified workers to accomplish their tasks.

28. Accommodations are dependent upon: • The specific requirements of the job • The particular need(s) of the employee or applicant • The extent to which modifications or aids are available without causing an undue hardship on the employing organization

29. Elements of Accommodation Policy • Communicate • Communicate • Communicate • Communicate the decision to the employee • Document the result of the process

30. The Interactive Process • Look at particular job and determine essential functions • Look at employee’s prior history • Consult with employee • Abilities and limitations • Effectiveness of potential accommodations

31. The Interactive Process • Consult with 3rd parties (advocates, medical professional, consultants) • Consider the preference of the employee • Select the accommodation that best addresses needs of the employee and the employer

32. Accommodation Process 1. Define the Situation 2. Explore Accommodation Ideas 3. Choose Accommodation 4. Implement Accommodation 5. Monitor Accommodation

33. During the Interview Interviewer May NOT Ask: • About the nature or extent of disability • If they or anyone in their family have a disability • About their health • If they have a history of emotional illness • If they have ever had an injury or disease • If they have ever seen a psychiatrist • If they have ever had a drug or drinking problem

34. During the Interview Interviewer MAY Ask about: • Ability to perform job-related duties • Previous job experience • Skills required to perform the job • Educational background • “Please demonstrate how you would do this job” • “With or without a reasonable accommodation, can you perform the essential functions of the job”

35. On the Job • Can ask some things with reason • If performance concerns: • Is there something we can do to help you improve your performance?

36. Disclosure Employer must provide reasonable accommodations for the knownphysical or mental limitations of a qualified applicant or employee with a disability, unless it poses an undue hardship.

37. Confidentiality • All information related to medical condition or health history must be kept confidential • Includes medical information individual voluntarily tells employer • Must be kept in locked file separate from personnel records

38. Documentation • Reasonable documentation from an appropriate professional concerning the disability and functional limitations • To verify the existence of a disability and the need for an accommodation

39. Employment Resources

40. New Resources Two Question-and-Answer documents about the ADAAA to aid the public and employers – including small business – in understanding the law and new regulations are available www.eeoc.gov.

41. Equal Employment Opportunity Commission http://www.eeoc.gov

42. Job Accommodation Network http://www.askjan.org

43. Cornell University - ILR School – Employment and Disability Institute Disability & HR:Tips for Human Resource (HR) Professionals http://www.hrtips.org

44. Accessible Tech: For Accessible Technology in the Workplace http://www.accessibletech.org/

45. ADA Training Resource Center: Your One-Stop for Courses, Events & Tools on the Americans with Disabilities Act http://www.adacourse.org

46. State Assistive Technology Projects National Assistive Technology Technical Assistance Partnership (NATTAP) http://resnaprojects.org/nattap/at/stateprograms.html

47. ADA National Network 47 10 Regional Centers Providing: • Information • Guidance • Materials • Training • Toll-free phone number: 800-949-4232 V/TTY • Website: www.adata.org

48. ADA National Network www.adata.org

49. Marian Vessels Director Mid-Atlantic ADA Center mvessels@transcen.org 301 217-0124 v/tty