- Course: Employment Law 101
- Module: Discrimination
- Lesson Type: Video
- Lesson Duration: 8:07
We're gonna continue on our discussion of disability discrimination. In this lecture, we're gonna start talking about accommodations.
As I told you in the last lecture, the employer has a very strong, affirmative duty to accommodate disabilities. And that really is the employer's first question is not whether the condition qualifies as a disability but how can I help? What kind of accommodations can be made so that the employee or the applicant can reform the essential functions of the job. And that is a critical aspect of this particular law is making sure that employers truly understand their obligations with regards to that.
The essential functions of the job are those that are fundamental to whatever the position is. This is the area that is best for employers to start establishing some standards with regards to defining jobs and job duties. Things like, employee job descriptions, are very useful here in both defining the essential functions of the job for combination purposes and supporting decisions that employers make when an individual cannot meet those essential functions of the job, with or without a disability. So job descriptions are an important aspect that helps employers to address ADA or disability issues well.
A job function is considered essential for lots of different reasons. Ultimately, it could be the job exists to perform that particular function or that the function requires specialized skill or some expertise that this particular employee is hired to accomplish. And it very well may be that there are a limited number of employees that are hired to perform this particular function. For instance, you might, as an accommodation, provide a special phone for a receptionist who has a hearing impairment or you might look at something like standing up, getting people breaks if their required to sit for long periods of time and they have joint or muscular or circulatory diseases that could create issues for them.
So that's of a combination, that's generally easy and something that most employers, given the opportunity, have an affirmative duty to provide to the employee.
Accommodations have to be reasonable. And I wanna point out that reasonable doesn't necessarily mean inexpensive. The idea on whether or not an accommodation is an undue burden is actually analyzed on a case by case basis. A large industrial corporation with many, many resources may be able to provide much more, and more expensive, accommodations than a small knick-knack shop in a rural community. So it's contextual and it's not just about money. For instance, a waiter who has a vision impairment and requests that the restaurant or the nightclub's lighting be pushed real high in order for them to be able to see, to take orders, likely, although quite inexpensive, would be an unreasonable accommodation or undue hardship if the employer could argue that the ambiance was altered and that it adversely affected the customers experience. So there's lots of ways to look at the idea of whether or not an accommodation is reasonable and/or to what extent it truly is an undue hardship on the business to meet that accommodation.
So those standards are very high and, obviously, in some standards or in some respects are very difficult to demonstrate.
It's not an accommodation to tolerate poor performance, that's really important to understand. In other words, we're not going to discriminate against individuals with disability as a business but we're also going to treat them as we do with everyone else, and poor performance is not related to the disability and if you have a performance related issue related to the disability, then we need to think is there a way we can accommodate that to alleviate the poor performance? But those are essentially different aspects. I always encourage managers and owners to find a human resource partner. It could be, if you're in a large organization, within your organization. But even smaller organizations with fewer employees, if you have 20 or 30 employees, enough to qualify for this, then you might wanna look at an HR consultant or a good employment attorney and see if you can develop a relationship so that you can assess specifically what your situation is in terms of reasonable accommodations and/or to what extent something may or may not constitute an undue burden or an undue hardship on the business.
It's also an important aspect when you're dealing with this for you to train managers within your organization that privacy is important. People with disabilities need to be recognized and acknowledged for their contributions and their abilities and their disabilities need to be confidential. And so to the extent that you can maintain that confidentiality or privacy is critical.
In summary, the ADA makes it unlawful for you to discriminate in all aspects of at the employment and pre-employment as the relationship between workers and employers. It can be physical or mental, it can include substance abuse and there's some rules regarding that. Always, always, always look to accommodate, that needs to be your first query, is how can I accommodate this condition. Create an interactive dialogue with the employee and make sure that you're asking for feedback.
Now, an employee may have a desired accommodation but, you as a employer are necessarily going to be have to give them the accommodation of their choice if there's another way that you can accommodation them, that is not their accommodation of choice but is reasonable then that still meets the standard.
Remember that if you violate the ADA there could be serious legal consequences and it can not only impact the morale of the employees but you in the community. So be very careful of that. Just a couple of quick examples. These are large corporations that have had noncompliance related issues with the ADA, and the EEOC went after them. And one is UPS, they weren't hiring deaf drivers, or trying to accommodate them. And it cost them almost $10 million.
And in 2005, Walmart had an issue where they didn't hire an applicant because the applicant had cerebral palsy. That was a $7.5 million situation. So it can be very expensive, clearly I picked two large cases, there are smaller ones. But even smaller decisions for noncompliance or penalties when you're a smaller organization than UPS or Walmart can have a devastating effect on the business.
So it's very important that we understand and we train managers on how to comply with this particular law.
Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...Mark's Full Bio
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