Earlier in our employment law series, we touched briefly on the Americans with Disabilities Act (ADA) and specifically looked at the employer’s compliance with the ADA in the context of interviewing and hiring. As we discussed, an employer must tread carefully when inquiring about potential disabilities during the hiring process. However, this article will focus on the ADA from the employee’s perspective and the challenges an employee may face in seeking to enforce his or her rights under the ADA.
The starting analysis in any ADA claim is determining whether the employee has a disability. A disability is defined as (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment.
Although the definition of disability did not change, Congress passed the ADA Amendments Act (ADAAA) of 2008 which sought to expand the interpretations of the definition of disability to provide broader coverage to individuals. The ADAAA was passed to address several Supreme Court decisions that narrowly interpreted the definition of disability.
Following the ADAAA, “major life activities” were expanded to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others and working. Major life activities also now include the operation of major bodily functions such as functions of the immune system, respiratory functions and cardiovascular functions, just to name a few. Bear in mind this is not an exhaustive list. In fact, 29 CFR §1630(h)(i)(2) specifically provides that the term “major” is not to be strictly interpreted to create a demanding standard for disability.
Once a disability has been established, the employee must then establish that he or she is qualified to perform the job. To be considered a qualified employee, the employee must establish that he or she can perform the essential functions of the job with or without a reasonable accommodation. Essential functions are those that are considered to be fundamental to the job. Under the ADA, consideration is to be given to the employer’s judgment as to which job functions are considered to be essential.
The ADA requires that an employer provide a reasonable accommodation to a qualified individual with a disability unless doing so would cause an undue hardship. The responsibility to request a reasonable accommodation generally lies with the employee. However, the ADA does require an employer to engage in an informal, interactive process with the employee to determine the individual’s limitations and what reasonable accommodations might allow the individual to continue to perform his or her job.
Reasonable accommodations would include modifications or adjustments to the job application process, modifications or adjustments to the work environment or other modifications that would allow an individual with a disability to perform the essential functions of the job. Examples of reasonable accommodations may include job restructuring, part time or modified work schedules, reassignment to vacant positions or modifications to equipment or devices. Examples of accommodations which have been held to be unreasonable would include creating a new position for a disabled individual, allowing an employee to permanently work from home or indefinite leaves of absence.
An employer is also not required to provide an accommodation where the request poses an undue hardship. To establish undue hardship, an employer must show that the reasonable accommodation being requested would cause significant difficulty or expense. In analyzing undue hardship, the courts will look at, among other things, the nature and the cost of the accommodation and the employer’s size and financial resources.
A significant amount of ADA litigation involves the denial of a reasonable accommodation. Of course, the ADA also prohibits discrimination and retaliation. To bring a claim under the ADA, an employee must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act. The EEOC may attempt to mediate the dispute if both the employer and the employee agree. If the parties do not agree to mediation, the EEOC will investigate the allegations in the complaint. If the EEOC finds that a violation has occurred, the matter will be referred to the legal staff to determine whether to bring a lawsuit on behalf of the employee. If the EEOC does not find evidence that a violation of the law has occurred, the employee will be issued a notice of right to sue. It is important to note that an employee who is issued a right to sue letter must file suit within 90 days of that notice. The ADA allows a plaintiff to seek a full range of damages including economic and non-economic compensatory damages, punitive damages, attorney’s fees and other injunctive and equitable relief. Kristen Kraus