State laws have covered disability discrimination for a long time, and federal employees have been covered by the Rehabilitation Act, but employees of private companies only gained protection under federal law in 1990, when the Americans With Disabilities Act (ADA) was passed.
The ADA is a phenomenal example of our federal legislature trying to please all of the people all of the time. As a result, it is filled with "weasel-words" that will take another 50 years to sort out in the courts.
The law says that it is illegal for an employer to discriminate against a qualified individual with a disability, because of that disability. The employer must make a reasonable accommodation, unless doing so would create an undue hardship.
The law also covers people who are perceived to have a disability, or who are regarded as having a disability, even if they actually don't have one
DISABILITY: The term "disability" means:
1. A physical or mental impairment that substantiallylimits one or more of the major life activities of such individual; 2. A record of such impairment; or 3. Being regarded as having such an impairment.
Of course, then you have the debate over what is a major life activity. In 1998, our Supreme Court determined, by a vote of 5-4, that reproduction was a major life activity. Think about that. Four Supreme Court justices did not think it was.
Basically, the disability has to interfere with a person's life. This year, 1999, the Supreme Court made several decisions that limited the definition of disability, especially when the disability is remediated. The cases involved people with vision problems that were corrected with glasses, and high blood pressure, that was corrected with medication. The Court held that if the impairment can be corrected, then the person does not have a disability as defined by the ADA. So, the truck mechanic who had to drive the trucks as part of his job, and who was fired because of his high blood pressure, was not considered as disabled under this Act. He was just unemployed. The twin sister pilots who wore glasses to correct their vision, and who wanted to fly internationally, could be prohibited from doing so, but had no protection under the ADA.
John Hockenberry, the ABC news commentator who is confined to a wheelchair, stated upon hearing the Supreme Court's holdings, "so I guess that means that because I've not let my disability interfere with my life, that I must not be disabled." I don't think we've heard the last word on this issue, by any means.
QUALIFIED PERSON WITH A DISABILITY: This term is defined as:
An individual who, with or without a reasonable accommodation, can perform the essential functions of that job.
So, what are the essential functions of the job, and who gets to decide that?
REASONABLE ACCOMMODATION: The consideration of what is, or is not a reasonable accommodation, must be taken on a case by case basis, because what is reasonable for IBM to do for its employees, may very well be completely impossible for Mom & Pop's dry cleaners to do.
UNDUE HARDSHIP: The key to whether or not the requested accommodation is reasonable, is whether or not it creates an undue hardship on the employer. The Act recounts several factors to consider in making this determination, but gives no absolutely guidelines.
THE INTERACTIVE PROCESS: Both parties, the employer and employee, are required to engage in an interactive process to attempt to reach an agreement about a reasonable accommodation. The key is: REASONABLE.
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