Erica C. Jones, the Executive Director of the Pacific DBTAC and Anel Gonzales, the Regional Bilingual TA specialist at Great Lakes ADA & IT Center, demonstrated an extensive knowledge of The Americans with Disabilities Act of 1990 (ADA). They started with an overview of what the ADA is and how it relates to people with disabilities. This seminar was presented once in Spanish and a second time in English.

The American with Disabilities Act of 1990 is a Civil Rights Law that prohibits discrimination toward, and segregation of, qualified individuals with disabilities. Title I of the ADA covers employers, and is relevant for people with disabilities who are working or who are looking for a job.

Who Does the ADA Cover?

The ADA covers individuals with physical or mental impairments that substantially limit one or more major life activities. The ADA also protects people who have a record of impairment, or who are regarded as having such impairments. Examples of major life activities include caring for one's self, performing manual tasks, speaking, learning, walking, sleeping, and working. The ADA, however, does not cover people who have sexual behavior disorders, compulsive gambling problems, or kleptomania and psychoactive substance use disorders (from the use of illegal drugs).

Gonzales pointed out that Title I of the ADA applies to private employers with 15 or more employees, state and local government, employment agencies, and labor organizations. The ADA covers all aspects of the employment process including: recruitment, the application process, the interview, any exams required for employment (medical/agility/personality, etc.), pay, training, benefits of employment, promotion and layoff/firing.

To be covered by Title I of the ADA, a job applicant or employee must be a "qualified individual." A "qualified individual" is some one who can perform the "essential functions" of the job with or without reasonable accommodation.

What Are the "Essential Functions" of A Job?

"Essential functions" are the basic duties or tasks of a job. For example, typing is an "essential function" of the job of a typist. However, being able to type would not be essential for radio show host. The degree of skill a worker needs to do the task is an important factor in deciding if a function is "essential." In addition, a task is called an "essential function" if:

• the employer actually requires employees in the position to perform the function,
• removing the function would fundamentally alter the position, and
• the position exists to perform that specific function.

Agility testing or aptitude testing are allowed as long as they are consistent with business necessity and if all other applicants must take the same tests.

In some cases, an employer may make a job offer conditional on an employee's medical examination and reasonable accommodation needs. This means an employer may ask an applicant to have a medical examination before making a final decision to hire an employee. An employer can withdraw a job offer if the disability of the employee would be a direct threat to the health and safety of other people in the workplace. An employer can also withdraw a job offer if they are not able to provide reasonable accommodations.

What Are Reasonable Accommodations?

A reasonable accommodation is defined as a modification or adjustment to a job, the work environment, or the manner in which tasks have been performed in the past. For example, an employer could write down job instructions for a deaf worker who has difficulty lip reading. Each time a position is changed or altered, the employer has an obligation to address accommodation needs.

Many participants asked questions about the principles of reasonable accommodations and how they apply. In short, employers are only obligated (required) to provide reasonable accommodations that would reduce disability-related barriers to employment. Please note that ADA requirements do not prevent an employer from providing accommodations beyond what is required by the ADA. Reasonable accommodations do not include: elimination of an essential function, lowering production standards, giving items for personal use, and giving a light-duty position.

How Does An Employee Get Reasonable Accommodations?

It is the responsibility of the employee to ask for the accommodations they need. The employer cannot ask for documentation when both the disability and the need for reasonable accommodation are obvious, or when the individual has already provided the employer with sufficient information to substantiate that they have an ADA disability and need accommodations.

There are cases where the employer starts the reasonable accommodation process, for example, when the employer knows that an employee has a disability that may be interfering with worker job performance. A second example might be if the employee is experiencing workplace problems because of disability. An employer can also initiate the process if he or she has reason to know that the disability prevents the employee from requesting a reasonable accommodation.

Furthermore, Anel provided a list of steps to obtaining a reasonable accommodation:

• determine if the employee is covered by the ADA;
• determine if the employee is a qualified individual;
• determine the disability's impact on performing essential functions;
• determine what accommodations are needed;
• determine if the accommodation is reasonable;
• implement the accommodation;
• determine if the accommodation is effective.

What Questions May An Employer Ask?

There are certain questions that employers cannot ask prospective employee. For example, employers are prohibited from asking any questions related to medical information. Gonzalez mentioned that it is unacceptable for the employer to ask, "How much alcohol do you drink?" "What medications are you taking?" and "Have you ever filed or received worker's compensation?" The employer is allowed to ask about job functions and tasks, the quality and quantity of work, how job functions are performed, the employee's attendance record, and other job-related issues that do not relate to disability. Nevertheless, during background and reference checks, it is illegal for an employer to ask about disability, illness, and worker's compensation history.

This prompted a question from a participant about the confidentiality of medical records. Gonzalez responded by stating, "Medical records and information must be kept separate from other employment records and should be available to individuals on a need-to-know basis only."

How Do You File A Discrimination Complaint?

The rest of the workshop was presented by Erica C. Jones. She explained how to file a successful administrative discrimination complaint. Jones provided information on what you should do if you feel you have experienced disability-based employment discrimination, where you can file a complaint, and how much time you have to file a complaint. Two case studies provided good examples of what to expect when filing a claim, when a claim goes to court, and when the case ends. These case studies were real life examples of how the system functions and the barriers one may have to cross before seeing results.

What Is the First Step in Filing a Complaint?

If you feel you have experienced disability-based employment discrimination, there are things you can do. Jones mentioned that you should first try to work things out with the employer. However, if you cannot, you may file an administrative complaint of employment discrimination. An administrative complaint comes before a lawsuit. You may file your complaint with the U.S. Equal Opportunity Commission or with state or local fair employment practice agencies.

You have 180 days to file your complaint. It is better if you file your complaint in person, but you may also do it over the phone or by mail. It is very important to have documentation of everything related to the complaint. Once a complaint has been filed, you need to show that you have a disability covered by the ADA, that the employer knew you had a covered disability, that you are qualified to do the essential functions of the job, and that disability-based discrimination occurred.

What Happens Next?

There are two possible results if your compliant is filed, and if your case is heard: it is either beneficial or not. The beneficial results can be a direct monetary award, indirect monetary award, or a non-monetary award. With a monetary award, you get cash. An indirect monetary award might mean, for example, that you are rehired for the job or that you are given reasonable accommodations. A non-monetary award could be a letter of recommendation or a sign in the workplace asking employers not to discriminate.

One can also choose to have a mediator or an independent third party to discuss the problems and develop solutions. There are advantages and disadvantages to using a mediator. If employers agree to mediate, your chances of getting a benefit increase. Nevertheless, if mediation occurs and a benefit is awarded, the benefit will be less than if the complaint went through the regular complaint process.

What Are Some Barriers to Filing A Complaint?

More often than not, people do not file complaints because they do not have enough support or because they are afraid of retribution. Also, it can be difficult to find materials that explain how to file a complaint in a way that is easy to understand.

Jones compared the elements of a strong case and the elements of a weak case. A strong case would be one where the employer knew of the person's disability. Evidence or witnesses, documentation of events, positive job evaluation, and other employment records are key elements to a strong case. Sometimes a short duration of time between incident and an employer's action against an employee is an indicator that discrimination has occurred. It is important to file your complaint as soon as possible. If you have no witnesses, no documentation, and negative employment evaluations, and if the employer's actions were within the law, then you have a weak case.

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