Federal and State statutes prohibit discrimination in employment on the basis of disability. Though there are some differences in the definition of disability (or the more archaic term “handicap” embodied in Washington law), the general concepts are the same. An individual may not be denied an employment opportunity based upon a physical or emotional condition that adversely effects a major life activity, unless to do so would cause the employer an undue hardship.
The Rehabilitation Act of 1973 [i]prohibits discrimination on the basis of disability by employers with a federal contract or subcontract in excess of $25,000 or employer recipients of federal financial assistance. 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 of 1990[ii], which were broadened by the ADA Amendments Act of 2008 (ADAAA).[iii] The Equal Employment Opportunity Commission (EEOC) enforces the federal law against disability discrimination in employment.
Washington State prohibition of discrimination in employment based upon disability is codified in Washington’s Law Against Discrimination.[iv] The Washington State Humans Rights Commission (HRC) regulates the state’s Law Against Discrimination.
Oregon’s ban against discrimination based upon disability in employment is likewise codified in the state’s Law Against Discrimination.[v] The Civil Right Division of the Bureau of Labor and Industries (BOLI) enforces Oregon’s civil rights laws.
A disability is defined as a physical, sensory or mental impairment that substantially limits one or more major life activities, a record of such impairment, or simply being regarded as having such impairment. Moreover, major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.[vi] Whether a person is substantially limited in performing a major life activity is assessed when using a mitigating measure. A mitigating measure is a corrective effort or method to reduce or eliminate the effects of a disability, such as eyeglasses to correct poor vision or hypertension medication to recue high blood pressure. Thus, if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person may not meet the ADA’s first definition of “disability.”[vii]
Federal and state laws require an employer to reasonably accommodate the disabilities of an employee or applicant for employment who is otherwise qualified and can otherwise perform the “essential functions” of the job. Essential functions are the fundamental, crucial job duties performed in a position. They do not include marginal functions, which are extra or incidental duties. A function may be essential because:
- The position exists to perform the specific function.
- There are a limited number of employees available who could perform the identified function.
- The function is highly specialized, and the worker is hired based, at least in part, for special expertise or ability to perform it.
Essential functions must be identified for each position, not simply the general class of jobs. Moreover, they must be directed to the work performed rather than the capabilities of an individual worker. A job analysis is useful tool to identify the essential functions of a position. A job analysis is a description of physical, emotional and cognitive activities and tasks involved in a position. The job analysis should list the characteristics, skills and expertise needed to perform the work and identify the major or primary job requirements.
Reasonable accommodation is a job modification or adjustment made without undue hardship to an employer to aid a worker with a disability to successfully perform the essential functions of the job. Reasonable accommodation includes the following:
- making existing facilities accessible;
- job restructuring;
- part-time or modified work schedules;
- acquiring or modifying equipment;
- changing tests, training materials, or policies;
- providing qualified readers or interpreters; and
- reassignment to a vacant position.[viii]
A modification or accommodation is “reasonable” if it “seems reasonable on its face, i.e., ordinarily or in the run of cases.” [ix] Moreover, an employer is not required to accommodate the disability of a worker or job applicant that would cause an “undue hardship” to the employer. Undue hardship is established by proof of an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.[x] A determination of undue hardship should be based on several factors, including:
- the nature and cost of the needed accommodation;
- the overall financial resources, number of employees and effect on expenses and resources of the specific (local) facility making the reasonable accommodation;
- the overall financial resources, size, number of employees, and type and location of facilities of the employer, if the specific facility part of a larger employer entity);
- the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship between the specific facility involved in making the accommodation to the larger employer entity;
- the impact of the accommodation on the operation of the facility. [xi]
THE INTERACTIVE PROCESS
The ADA and state laws against employment discrimination against a worker with a disability mandates an employer to engage in an interactive process to determine whether and to what extent reasonable accommodation can be made for a worker’s disability. The EEOC defines the interactive process as:
“an informal, interactive process … [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” [xii]
A reasonable accommodation assessment requires a protocol to ensure thorough assessment of the need for accommodation, analysis of the essential functions of the job, adequate communication with the worker of job applicant, identification of specific job modifications or other accommodations, and an assessment of the efficacy of the range of possible job modifications and accommodations.[xiii]
Federal and state laws require an employer to reasonably accommodate the disabilities of a qualified worker or job applicant to perform the essential functions of a job. An employer should identify the major or principle functions of a job and engage in an interactive process to evaluate the range of job modifications and accommodations. An employer is not required to accommodate a disability that will cause undue hardship upon the employer’s financial or operational stability. However, failure to implement and document a proper reasonable accommodation assessment may expose the employer to administrative penalties and civil liabilities for violations of federal and state laws against disability discrimination. An employer should protect against reasonable accommodations violations by developing, implementing, and periodically updating a reasonable accommodation assessment protocol.
Please contact Michael H. Weier if you have any questions regarding reasonable accommodation or your company’s need to develop or update a reasonable accommodation protocol.
[i] 29 U.S.C. Sec. 701, et seq.
[ii] 42 U.S.C., Ch. 126, Sec. 12101, et seq.
[iii] Public Law 110-325.
[iv] RCW 49.60.030 – Freedom from Discrimination – Declaration of Civil Rights.
[v] ORS 659A – Unlawful Discrimination Against Persons with Disabilities.
[vi] Section 902 of ADAAA of 2008; RCW 49.60.040(7)(a); ORS 695A.104
[vii] Sutton v. United Airlines, Inc., 527 U.S. 471(1999), and Murphy v. United Parcel Service, Inc., 119 S.Ct. 2133; 527 U.S. 516 (1999), F.3d 118, affirmed.
[viii] 42 U.S.C. § 12111(9) (1994); 29 C.F.R. § 1630.2(o)(2)(i-ii) (1997).
[ix] US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002). Some courts have declared whether an accommodation is “reasonable” requires consideration of the costs of the accommodation in relation to its benefits. See, e.g., Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1184 n.10, 5 AD Cas. (BNA) 1326, 1335 n.10 (6th Cir. 1996); Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538, 543, 3 AD Cas. (BNA) 1636, 1638-39 (7th Cir. 1995). Though logical and practical, the “cost/benefit” analysis has no foundation in the statutes, regulations, or legislative histories of the ADA or ADAAA. See 42 U.S.C. § 12111(9), (10) (1994); 29 C.F.R. § 1630.2(o), (p) (1997); see also Senate Report, supra note 6, at 31-35; House Education and Labor Report, supra note 6, at 57-58.
[x] See, 29 C.F.R. pt. 1630 app. §1630.15(d) (1996); See also, Stone v. Mount Vernon, 118 F.3d 92, 101, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997) (an employer who has not hired any persons with disabilities cannot claim undue hardship based on speculation that if it were to hire several people with disabilities it may not have sufficient staff to perform certain tasks); Bryant v. Better Business Bureau of Greater Maryland, 923 F. Supp. 720, 735, 5 AD Cas. (BNA) 625, 634 (D. Md. 1996).
[xi] See, 42 U.S.C. § 12111(10)(B) (1994); 29 C.F.R. § 1630.2(p)(2) (1997); 29 C.F.R. pt. 1630 app. § 1630.2(p) (1997); TAM, supra note 49, at 3.9, 8 FEP Manual (BNA) 405:7005-07.
[xii] 29 C.F.R. § 1630.2(o)(3).
[xiii] See, Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000). The Ninth Circuit Court of Appeals addressed the interactive process in depth, noting that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and . . . this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for an accommodation.”