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DISABILITY DISCRIMINATION

What major laws prohibit discrimination based on disability or handicap?

The two major laws are the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. The Rehabilitation Act of 1973 only extends to the federal government and protects only workers in the federal sector. The Americans with Disabilities Act of 1990 (ADA) applies to all employees—both in the private and public sector—provided that their employer has 15 or more full-time employees for the calendar year. The Rehabilitation Act uses the term "handicap," while the ADA uses the term "disability."

How is a disability defined within the Americans with Disabilities Act (ADA)?

There are three parts to the definition of a disability in the ADA. The first is that a disability is as an impairment that substantially limits one or more major life activities.

LegalSpeak: Gross v. FBL (2009)

Justice Clarence Thomas (majority): "Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not.... Thus, the ordinary meaning of the ADEA's requirement that an employer took adverse action "because of" age is that age was the "reason" that the employer decided to act.... even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims."

Justice John Paul Stevens (dissent): "The Age Discrimination in Employment Act of 1967(ADEA), 29 U. S. C. §621 et seq., makes it unlawful for an employer to discriminate against any employee 'because of' that individual's age, §623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee."

The second is that a disability is one in which there is a record of an employee having such an impairment. The third part of the definition is that the person is "regarded" as having a disability.

What exactly does the ADA prohibit?

The ADA applies to more than the employment sector, but Title I of the ADA covers employment. It prohibits employers from discriminating against qualified individuals with a disability with regard to "job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."

What are some examples of disabilities under the ADA?

There are an almost innumerable number of disabilities recognized by the ADA. They can include virtually any physical or mental impairment as long as it is substantially limiting of a major life activity. Examples of commonly litigated disabilities include cancer, back injuries, depression, diabetes, asthma, heart conditions, and carpal tunnel syndrome.

Are mental conditions cognizable under the ADA?

Yes, the ADA's primary definition of a disability says "any physical or mental impairment" that substantially limits a major life activity.

The ADA mentions a "qualified individual with a disability." What is such a "qualified individual"?

The ADA defines a qualified individual as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job."

Under the Americans with Disabilities Act, employers cannot discriminate against disabled people and must accommodate any reasonable request that does not cause the employer undue hardship in return (iStock).

Under the Americans with Disabilities Act, employers cannot discriminate against disabled people and must accommodate any reasonable request that does not cause the employer undue hardship in return (iStock).

LegalSpeak: Findings of Congress in the ADA

a) Findings.—The Congress finds that—

(1) physical or mental disabilities in no way diminish a person's right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(8) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

There are two key terms in this definition—"essential functions" and "reasonable accommodation." This basically means that the employee must be able to perform the key functions of the job either with or without a reasonable accommodation from the employer.

 
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