Americans With Disabilities Act & Employment
The primary significance of the employment provisions of the Americans with Disabilities Act (ADA) is that for the first time a formal ban on discrimination against persons with disabilities is established for all but the smallest of the nation's employers. The human resources part of ADA covers all employers with 25 or more employees effective 7/1/92. Employers with 15-24 employees are covered as of 7/1/94.
The ADA prohibits employers from discrimination in all aspects of employment against "qualified persons with a disability".
Enforcement of ADA under Title VII of the Civil Rights Act is the primary responsibility of the EEOC. The EEOC is required to issue a technical assistance manual on ADA rights and responsibilities.
HIGHLIGHTS OF ADA
ADA defines the following impairments as protected disabilities: blindness, deafness, wheelchair use, epilepsy, diabetes, cancer, heart disease, learning disabilities, recovering alcoholics and drug abusers and persons with AIDS or AIDS related conditions. Some of the individuals not protected under ADA are current illegal drug abusers, compulsive gamblers, homosexuals, and those with "sexual behavior disorders".
ADA requires that employers provide "reasonable accommodations" to job applicants and employees with disabilities; however like the Rehabilitation Act of 1973 which protects the handicapped in employment, ADA does not specifically define exactly what is "reasonable". The new law does state that employers do not have to make accommodations which impose "undue hardship". The courts will ultimately decide what is or isn't "reasonable".
To successfully defend against a charge of discrimination under ADA, financial institutions must be able to show that all job qualifications, standards, tests and selection criteria are job related and that reasonable accommodation is not possible.
GETTING READY FOR ADA
Financial institutions can prepare now for ADA by doing the following:
Update all written job descriptions to include the essential functions of each job, (i.e. must be able to lift 50 lbs.).
Train all interviewers (recruiters, managers) how to interview the disabled. Ask only questions which are job related, (i.e. ask "can you lift 50 pounds"?) Don't ask "have you experienced severe problems with your back"? Remind recruiters and managers to offer the disabled applicant/employee an opportunity to suggest a reasonable accommodation. [See related article on page 5, "Interviewing Do's and Don'ts"]
Review application and pre-employment forms for health questions. Make sure you eliminate all questions regarding the applicant's physical or mental health.
Eliminate pre-employment medical exams or alter them to comply with ADA.
Review your applicant screening procedures, (i.e. testing criteria to ensure that all applicants for each job receive the same treatment.)
Develop procedures for ensuring the confidentiality of medical records.
QUESTIONS AND ANSWERS ABOUT ADA
Question: Will ADA notices have to be posted to inform job applicants and employees of their rights?
Answer: Yes. The EEOC is designing the posters and will soon make them available to all employers.
Question: Where can I obtain the text of ADA and the guidelines from EEOC?
Answer: You may contact EEOC directly for both.
Question: Can a non-disabled person sue under ADA?
Answer: Yes. ADA specifically covers those individuals who are perceived to have a disability and who may actually not have it.
Question: Can I still fire alcohol and drug abusing employees for unacceptable job performance under ADA?
Question: Since only "qualified individuals with a disability" are protected under ADA, what should I consider to be the real definition of "qualified individual with a disability"?
Answer: An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the position that such individual desires or holds.
Have You Started Making Changes?
The first part of ADA takes effect on January 26, 1992. By now your changes should be firmly planned or in the process of taking place.
Much attention has been paid to the changes that will be necessary at ATMs. But even those financial institutions without ATMs will have to look at access and accommodations in their banking offices. The Act applies to all areas of a financial institution's facilities. It specifically prohibits discrimination against people with disabilities "in areas of public accommodation. The law also requires accommodation of people with hearing and vision impairments "where readily achievable."
California institutions have, on the whole, taken steps to comply with the coming mandated requirements. And in Pennsylvania, a bank's voluntary response to a grievance filed against it with the Human Rights Commission has announced it has agreed to convert 100 ATM sites at a cost of an estimated $100,000. These changes, according to the arrangement made between the Human Rights Commission and the bank, will be made over the next five years.
Violation of the American with Disabilities Act can result in fines of $50,000 for the first offense and $100,000 for each subsequent offense. If you need a copy of this Act, call the BANKERS' HOTLINE office and we will mail you one.
Copyright © 1991 Bankers' Hotline. Originally appeared in Bankers' Hotline, Vol. 2, No. 9, 11/91
First published on 11/01/1991