Academic journal article ABA Banking Journal

Disabilities Act Compliance Needn't Disable Your Bank

Academic journal article ABA Banking Journal

Disabilities Act Compliance Needn't Disable Your Bank

Article excerpt

Intimidated by the Americans with Disabilities Act? That's understandable, considering its scope and intensely fact-specific nature. The act is perhaps the most far-reaching civil rights law in recent history, yet it offers no simple tests or answers.

Unlike comparable nondiscrimination laws, no readily identifiable protected class exists. In matters of race and gender, employers usually know who is covered by the law. With the ADA, each case is different. We don't know who's disabled without considering the specific individual. Even those who think they are disabled, or who appear disabled, may not be. Conversely, those who don't appear to be disabled, may well be covered by the ADA. This is just one of many issues raised by the ADA.

Understanding the law and taking proactive steps to recruit employees with disabilities are important first steps. Local community service providers can be valuable partners in these efforts.

The ADA was enacted by Congress to prohibit discrimination against people with disabilities and to eliminate employment barriers. Several issues must be addressed in every potential ADA claim.

First, does the person have a disability? This is not a simple question. Only conditions or disorders that substantially limit a major life activity are considered disabilities. Even obvious "disabilities" may not "substantially" limit "major" life activities. Disabled individuals include those with current impairments, with a record of impairment, or those who are regarded as having an impairment. Several questions must be resolved to address even this first level of inquiry.

Second, an employee or potential employee must be qualified for the position, meaning that he or she can perform the "essential functions of the job with or without reasonable accommodation." Again, "essential" functions and "reasonable" accommodations are difficult to define.

Unfortunately, a determination of reasonable accommodation varies from employer to employer, taking into account the specific disability, the job, and the employer's resources. The law does not require employers to provide every requested accommodation or accommodations that are unduly extensive, substantial, disruptive or that would fundamentally alter an employer's business.

Precautions to take

In addition to being familiar with the law, employers can take many precautions to avoid liability. The following are some of the most useful:

Interviews. The permissible scope of interview questions is E quite limited in this area. Having reviewed the essential functions of a job with the applicant, an interviewer may ask, "Can you perform the essential functions of this job with or without reasonable accommodation?" The interviewer may not require the applicant to specify whether performance would be "with" E or "without" reasonable accommodation.

Cases involving illegal interview questions can be expensive. A one-armed man was asked "[w]hat current or past medical problems might limit your ability to do the job?" Even though the employer may have had legitimate reasons not to hire this man, he was awarded $150,000 in punitive damages in addition to compensatory damages.

If, during the interview process, an applicant asks for an accommodation for the hiring process, an employer should provide the accommodation, if at all possible. The law provides that the employer may require professional documentation of the need for accommodation. This is usually not worth the risk. It is more practical to provide the accommodation, than judge this candidate based solely on job qualifications.

If, during the interview, the applicant relates the existence of a disability and the need for accommodation on the job, the employer may ask what type of accommodation would be needed. No further questions may be asked. The employer should not pursue any discussion of the disability at all. …

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