Embed Size (px)
Citation preview
Back to Basics: Disability Back to Basics: Disability Nondiscrimination LawsNondiscrimination Laws
2011 National Equal Opportunity
Training Symposium
August 30, 2011
1
Federal civil rights laws that ensure Federal civil rights laws that ensure equal opportunity for people with equal opportunity for people with disabilities in employmentdisabilities in employment
• Rehabilitation Act of 1973• Americans with Disabilities Act of 1990• ADA Amendments Act of 2008
2
Rehabilitation Act of 1973Rehabilitation 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
3
Rehabilitation Act of 1973 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.
4
Rehabilitation Act of 1973 Rehabilitation Act of 1973 continued….
• Section 501: requires nondiscrimination in employment by Federal agencies
• Section 503: prohibits employment discrimination by Federal government contractors
5
Rehabilitation Act of 1973 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
6
Rehabilitation Act of 1973 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.
7
Americans with Disabilities ActAmericans with Disabilities Act
8
What is the ADA?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
9
The Americans with Disabilities ActThe Americans with Disabilities Act
• Title I: Employment• Title II: Public Services• Title III: Public Accommodations• Title IV: Telecommunications• Title V: Miscellaneous
10
• 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
ADA Title I - EmploymentADA Title I - Employment
11
• 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)
Title I ensures that qualified Title I ensures that qualified individuals with disabilities:individuals with disabilities:
12
Qualified Individual Qualified Individual with a Disabilitywith 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.
13
What is the ADA Amendments What is the ADA Amendments Act ?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
14
Definition of DisabilityDefinition 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.. 15
Definition of DisabilityDefinition 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"
16
Major Life ActivitiesMajor 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
17
• Thinking• Communicating• Sitting• Reaching• Interacting with
Others• Working
• Breathing• Learning• Reading• Concentrating• Thinking• Speaking
Major Life ActivitMajor Life Activity continued….
18
Under the ADAAA, 'major life activities' is Under the ADAAA, 'major life activities' is
expanded to include "major bodily functions."expanded to include "major bodily functions."
• Immune system• Normal cell growth
• Digestive• Bowel• Bladder
• Brain• Circulatory• Cardiovascular systems
• Neurological
19
Major Bodily Functions Major Bodily Functions continued….
• Respiratory• Endocrine• Lymphatic• Musculoskeletal
• Special sense organs and skin
• Genitourinary• Reproductive functions
20
New StandardNew StandardEpisodic Disabilities:
Considered a disability even in remission, if when active would be substantially limiting
21
Mitigating MeasuresMitigating Measures
Positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are ignored in determining whether an impairment is substantially limiting.
22
Mitigating MeasureMitigating Measure
Any device, measure, or medication that reduces the effects of the disability
23
• 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
What makes a job task essential?What makes a job task essential?
24
• 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
Evidence of Essential Functions Evidence of Essential Functions
25
• 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
Evidence of Essential Functions Evidence of Essential Functions
26
• Any changes in the work setting that enable qualified workers to accomplish their tasks.
Accomodations are:Accomodations are:
27
• 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
Accommodations are Accommodations are dependent upon:dependent upon:
28
CommunicateCommunicateCommunicate
Communicate the decision to the employeeDocument the result of the process
Elements of Elements of Accommodation PolicyAccommodation Policy
29
• Look at particular job and determine essential functions
• Look at employee’s prior history
• Consult with employee – Abilities and limitations– Effectiveness of potential accommodations
The Interactive ProcessThe Interactive Process
30
• 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
The Interactive ProcessThe Interactive Process
31
Accommodation ProcessAccommodation Process
2. Explore Accommodation Ideas
1. Define the Situation
3. Choose Accommodation
4. Implement Accommodation
5. Monitor Accommodation
32
During the InterviewDuring 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
33
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”
During the InterviewDuring the Interview
34
On the JobOn the Job
Can ask some things with reason•If performance concerns:
o Is there something we can do to help you improve your performance?
35
DisclosureDisclosure
Employer must provide reasonable accommodations for the known physical or mental limitations of a qualified applicant or employee with a disability, unless it poses an undue hardship.
36
ConfidentialityConfidentiality• 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
37
DocumentationDocumentation
• 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
38
Employment ResourcesEmployment Resources
39
New ResourcesNew ResourcesTwo Question-and-Answer documentsabout the ADAAA to aid the publicand employers – including smallbusiness – in understanding the lawand new regulations are availablewww.eeoc.gov.
40
Cornell University - ILR School – Employment and Disability Institute
Disability & HR:Tips for Human Resource (HR) Professionals
http://www.hrtips.org
43
Accessible Tech: For Accessible Technology in the Workplacehttp://www.accessibletech.org/
44
ADA Training Resource Center: Your One-Stop for Courses, Events & Tools on the
Americans with Disabilities Acthttp://www.adacourse.org
45
State Assistive Technology ProjectsState Assistive Technology ProjectsNational Assistive Technology Technical Assistance Partnership (NATTAP) http://resnaprojects.org/nattap/at/stateprograms.html
46
ADA National NetworkADA National Network10 Regional Centers Providing:10 Regional Centers Providing:• InformationInformation• GuidanceGuidance• MaterialsMaterials• TrainingTraining• Toll-free phone number:Toll-free phone number: 800-949-4232 V/TTY800-949-4232 V/TTY• Website: Website: www.adata.org
4747
