CHAPTER 17 - THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act of 1990 (ADA) covers employment, public accommodations, transportation, and telecommunications; and it affects the employment, training, promotion, compensation, and termination policies of every employer having 15 or more employees. It also affects businesses that provide goods and services to the public.

The ADA borrows the definition of disability from the Rehabilitation Act of 1973, by defining it as (1) "a physical or mental impairment that substantially limits one or more of the major life activities," (2) "a record of such impairment," or (3) "being regarded as having such an impairment."

The ADA excludes

• homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, and other sexual disorders;
• compulsive gambling, kleptomania, and pyromania; and
• individuals using illegal drugs when their employer treats them adversely on the basis of that drug use. Persons suffering from psychoactive substance use disorders also are not protected by the ADA. However, an individual who is engaged in, or has completed, drug rehabilitation and is no longer using drugs is protected under the act.

The ADA protects an employee or job applicant who is able to perform the essential functions of the job, whether the employer makes a "reasonable accommodation" for any disability that the individual may have. The ADA further provides that an employer’s determination of what constitutes the "essential functions" of a job will be given consideration. A written job description prepared before the employer advertises or otherwise seeks applicants for a job will also be considered evidence of the essential functions of a job.

The ADA requires employers to make reasonable accommodations for an employee’s disability. Examples of such accommodations include making existing facilities used by employees readily accessible to and usable by individuals with disabilities as well as job restructuring, part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for disabled employees.

The ADA was intended to help thousands of disabled persons achieve respect and dignity. However, most claimants are workers with back problems, mental disorders, and neurological illnesses. Under the Americans with Disabilities Act, mental disabilities and physical disabilities are governed by identical legal standards, although the issues surrounding mental disabilities are far more complex and elusive. Whereas a physical disability, such as blindness, may be obvious, a mental disability such as depression, may be exhibited in a vague manner or perhaps not at all.

The ADA, the Federal Rehabilitation Act, and state disability statutes cover people who are "regarded" as having a disability as well as people who actually have one.

Many lawsuits have involved employers who claimed that they fired their employees because of poor work or interpersonal skills and employees who claimed that their problems were due to psychological disabilities. These employees claimed that their employer had to either counsel them or otherwise obtain help for them rather than fire them.

A postal worker won $865,000 for being terminated because he had a "volatile personality" and "generally went out of control"; and his employer was afraid he would become violent. A newspaper editor received a settlement under the ADA for being fired because she threw temper tantrums and locked coworkers in their offices.

A government investigator received a settlement under the ADA because he was fired for not doing any work. He claimed he stopped working because he was depressed and his employer should have accommodated him. A salesman obtained a settlement under the ADA for being fired because he could not follow verbal directions; he claimed he suffered from an "attention deficit disorder."

An in-house legal counsel won $1.1 million after his company refused to "accommodate" his depression by giving him shorter hours, a more supportive boss, and a positive job evaluation. A jury awarded $912,000 to a saleswoman who was fired because her manic- depressive illness caused her to be rude to customers and disrupt sales meetings.