A Workforce Protected

Millions of American workers suffer from various disabilities, and, prior to 1990, those individuals may have suffered discrimination in the workplace, which is why the Americans with Disabilities Act was passed to prohibit discrimination as well as to mandate that an employer accommodate an employee with a disability as long as it does not cause "undue hardship" for that employer and their business. To understand several important ADA definitions, including who is protected by the law and what constitutes illegal discrimination, the following are some helpful explanations of key definitions to assist in determining classifications: ? Individual with a Disability - An individual with a disability under the ADA is a person who has a physical or mental impairment that substantially limits one or more major life activities. In 1999, the Supreme Court ruled that the determination of whether a person has an ADA "disability" includes consideration of whether the person is substantially limited in performing a major life activity when using a mitigating measure.

This means that if a person has little or no difficulty performing any major life activity because they use a mitigating measure, then that person will not meet the ADA's first definition of "disability". Major life activities are activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working. Individuals who also suffer from previous substantially limiting impairment are protect by the ADA. ? Qualified Individual with a Disability - A qualified employee or applicant with a disability is someone who satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position. ? Reasonable Accommodation - Reasonable accommodation may include, but is not limited to: making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reorganizing an employee to a vacant job; modification of equipment used; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters.

Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer generally is not obligated to provide personal use items such as eyeglasses or hearing aids.

? Prohibited Inquiries and Examinations - Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Disabled applicants may, however, be asked about job function ability performance. A job offer may be contingent on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity. ? Undue Hardship - This is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

However, accommodating a worker by lowering the production standards or quality is not necessary. Under the ADA, performing essential functions are defined as the basic job duties that an employee must be able to perform, with or without reasonable accommodation. An employer needs to examine each job to determine which functions or tasks are essential to performance prior to taking any employment action such as recruiting, advertising, hiring, promoting or firing. In determining if a function is essential en employer needs to consider whether the reason the position exists is to perform that function, the number of other employees available to perform the function or among whom the performance of the function could be distributed, and the degree of expertise or skill required to perform the function.

Essential functions include experience of past and present employees in the positions, time spent on performing duties, actual work and the consequences of not requiring an employee to perform a duty -- all are an employer's determination. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. As long as medical examinations of employees are job related and consistent with an employer's business needs are they necessary.

It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on any disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA. In 2004, the EEOC received 15,376 charges of disability discrimination. The EEOC resolved 16,949 disability discrimination charges 2004 and recovered $47.7 million in compensation for aggrieved individuals and parties. Of that $47.7 million, approximately 13% was for mental health discrimination cases.

This does not include monetary benefits obtained through litigation.

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