On July 26, 1990, President Bush signed the Americans With Disabilities Act of 1990 (ADA). The most important civil rights legislation in nearly 25 years, this new law will dramatically affect the employment practices and operations of most American businesses.
Many businesses are subject to state and local handicap discrimination laws. Some are also subject to the Rehabilitation Act of 1973. None of these laws is superseded by the ADA. Rather, the ADA adds a new layer of governmental regulation.
The employment provisions of the ADA become effective for almost all businesses with 25 or more employees on July 26, 1992. The ADA prohibits disability-based discrimination against qualified applicants and employees. The ADA's definition of "disability" includes physical or mental impairments which "substantially limit" one or more "major life activities," as well as a record of having such an impairment and being regarded as having such an impairment. The Act applies to persons with contagious diseases or infections, but permits employers to exclude any person whose condition poses a "direct threat to the health or safety of others" which "cannot be eliminated by reasonable accommodation." Under the ADA, homosexuality, sexual behavior disorders and a variety of psychiatric disorders are excluded from the definition of disability. Current users of illegal drugs are not protected from discrimination on the basis of such use. However, former drug users who have completed or who are participating in a supervised drug rehabilitation program are protected. Alcoholism is a disability under the ADA. The ADA prohibits discrimination only against disabled persons who are "otherwise qualified", i.e., those "who, with or without reasonable accommodation, can perform the essential functions" of the job held or sought. Congressional Committee Reports state that "essential functions" are tasks that are fundamental and not marginal aspects of a job. Whether a particular function is essential must be determined on a job-by-job basis. Under the ADA, "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." Though not determinative, job descriptions will play an important role in the defense of hiring and promotion claims.
Prohibited Conduct. The ADA broadly prohibits employers from discriminating against qualified individuals with disabilities with respect to any term, condition, or privilege of employment. Both disparities in treatment and conduct having an adverse impact on people with disabilities are prohibited.
Classification, Segregation, And Contracts. The ADA outlaws segregation of employees with disabilities into specific jobs, lines of progression, work areas, or activities. Additionally, employers are prohibited from "participating in any contractual or other relationship that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to . . . discrimination. . . ." This means, for example, that employers may not use employment agencies or collective bargaining agreements to bypass the Act's requirements. Employers are permitted to offer insurance policies containing pre-existing condition clauses or limiting the coverage available for certain procedures, but they may not refuse to insure disabled individuals or place limits on their coverage which are not applicable to other similarly situated employees.
Standards And Tests. Employers are prohibited from using "standards, criteria or methods of administration that have the effect of discriminating against people with disabilities, unless the standard or test is shown to be job-related and consistent with business necessity, and no reasonable accommodation would enable the candidate to perform the essential functions of the job. …