L. Disability Discrimination

The past decade has seen a tremendous increase in litigation and legislative activity, at both state and federal levels, structured to protect handicapped individuals from job discrimination. There is good reason for this: the number of Americans having disabilities has been estimated to be from 37 million to 43 million people, half of whom fall within the prime working ages of 16 to 64. In addition, although more than two-thirds of Americans who have disabilities would like to be gainfully employed if given the chance, their unemployment as a group is above 60 percent.

Before the enactment of the ADA, the main federal law protecting handicapped individuals against discrimination was the Rehabilitation Act of l973, which applied to government contractors and employers who receive federal assistance. This law prohibits denying an other- wise qualified applicant or employee a job or opportunity, including fringe benefits, promotion opportunities and special training, solely on the basis of a handicap.

To remedy the limited applicability of the Rehabilitation Act of l973, the ADA was enacted. The Equal Employment Opportunity Commission has jurisdiction over and enforcement responsibility for Title I of the ADA, prohibiting employment discrimination against anyone with a disability. This federal law will make existing facilities accessible to handicapped employees, restructure certain jobs to provide for reasonable accommodation of persons with handicaps, and offer more part-time or modified work schedules for persons with disabilities.

For a comprehensive discussion of the ADA, see "The Americans With Disabilities Act," earlier in this chapter. The following summar- izes many of the important aspects of this law for your business. Now companies are required to:

• Eliminate any inquiries about medical examinations or forms designed to identify an applicant's disabilities.
• Avoid adverse classifications of job applicants or employees because of disability.
• Avoid participating in a contractual relationship, including a collective bargaining agreement, that has the effect of discriminating against job applicants or employees with disabilities.
• Avoid discriminating against an applicant or employee because of that individual's relationship or association with another who has a disability.
• Make reasonable accommodations to the known physical or mental limitations of an applicant or employee, unless doing so would impose an undue hardship on the employer.
• Avoid denying employment opportunities to an applicant or employee solely to avoid making reasonable accommodation because of a disability.
• Avoid employment tests or selection criteria that have a disparate impact on individuals with disabilities unless the test or criterion is shown to be job-related and supported by business necessity.
• Administer employment tests in the manner most likely to reflect accurately the job-related skills of an applicant or employee who is disabled.

Any decisions not to hire an applicant because of physical defects or a mental condition will now be scrutinized closely. The Equal Employment Opportunity Commission has released regulations defin- ing and commenting on the ADA. Officials commented that the major areas of importance clarified in the regulations include:

1. Determining whether an individual's current physical or mental condition is a "direct threat" to the health or safety of the individual or others may be a relevant job criterion.
2. Additional medical costs or increased workers' compensation premiums is not a legitimate basis for the employer to deny a qualified individual with a disability a job opportunity.
3. Determining whether a particular job function is or is not "essential" is clarified somewhat by saying that a collective bargaining agreement may be consulted.
4. Employers are permitted to provide state workers' com- pensation offices with medical information about employees for purposes of administering second-injury funds without viola- ting the confidentiality provisions of the ADA. However, an employer may not inquire about an applicant's workers' compensation history.
5. Defining "reasonable accommodation" may include providing personal assistants to help a qualified individual with a disability perform an essential job function. However, providing a personal assistant to help with daily attendance care is not required.

TIP: Even though the law prohibits and curtails numerous activities and actions, it was not meant to penalize your business. For example, employers are generally permitted to terminate workers who are physically unable to perform their duties due to a physical or mental impairment.

Employers must demonstrate present inability to do the work required, not future or past inability. Employers can deny jobs to handicapped workers if they can demonstrate that the position poses a danger to the individuals's health and welfare. Jobs may also be denied if the employer can demonstrate that the job generally cannot be performed by such a class of individuals (for example, the job of an airline pilot or firefighter). Employers may also deny jobs to handicapped workers if they can demonstrate that the hiring would interfere with productivity or create dangers in the workplace.

Special Comments concerning AIDS and HIV. Must an employee reveal that he is HIV positive? Probably not, provided the employee's actions do not evince a willful and wanton disregard of the employer's interests. If the deception (e.g., one day a month absences for "personal" reasons) is designed to protect the person's privacy and not to harm or be disloyal to the employer, notifying the employer of such a condition may not be required. Along with the ADA, most states have now enacted laws protecting workers with AIDS, AIDS-related complex or the HIV virus as being handicapped persons and thus protected under the law.

Can you compel an employee to be examined for AIDS? Generally not, for the same reason.