Introduction to the Americans With Disabilities
Seattle Pacific University encourages supervisors
to work diligently to provide a friendly and supportive employment environment
to qualified individuals with disabilities. We hope to equip you with
adequate background information on the purpose and spirit behind all
of the ADA rules and regulations, and the additional issues set forth
in the Washington Rehabilitation Act of 1973.
All materials in this section of the supervisor’s
manual have been designed to educate and prepare supervisors for dealing
with potential or actual cases involving employees (under their supervision)
who have or are suspected of having disabilities. We intended to provide
enough information so supervisors can recognize potentially troublesome
situations and be equipped to deal with them effectively and appropriately
from the start. The Office of Human Resources is ready to assist supervisors
with questions, or concerns related to employees who have or are suspected
of having a disability. The following article was reprinted with permission:
(Copied from The American’s with Disabilities
Act Handbook, Published by the US EEOC and the US Department of
The ADA is a federal anti-discrimination
statute designed to remove barriers which prevent qualified individuals
with disabilities from enjoying the same employment opportunities that
are available to persons without disabilities.
the Civil Rights Act of 1964 that prohibits discrimination on the basis
of race, color, religion, national origin, and sex, the ADA seeks to
ensure access to equal employment opportunities based on merit. It does
not guarantee equal results, establish quotas, or require preferences
favoring individuals with disabilities over those without disabilities.
However, while the Civil Rights Act of 1964 prohibits any consideration
of personal characteristics such as race or national origin, the ADA
necessarily takes a different approach. When an individual’s disability
creates a barrier to employment opportunities, the ADA requires employers
to consider whether reasonable accommodation could remove the barrier.
The ADA thus establishes a process in which the employer must assist
a disabled individual’s ability to perform the essential functions of
the specific job held or desired. While the ADA focuses on eradicating
barriers, the ADA does not relieve a disabled employee or applicant
from the obligation to perform the essential functions of the job. To
the contrary, the ADA is intended to enable disabled persons to compete
in the workplace based on the same performance standards and requirements
that employers expect of persons who are not disabled.
When an otherwise qualified individual
is impeded by barriers in the current or potential workplace, the employer
must take steps to reasonably accommodate the individual, and thus help
overcome the particular impediment, unless to do so would impose an
undue hardship. Such accommodations usually take the form of adjustments
to the way a job customarily is performed, or to the work environment
itself. This process of identifying whether, and to what extent,
a reasonable accommodation is required should be flexible and involve
both the employer and the individual with a disability (interactive).
Of course, the determination of whether an individual is qualified for
a particular position must necessarily be made on a case-by-case basis
(normally under the advice of an appropriate medical practitioner).
No specific form of accommodation is guaranteed for all individuals
with a particular disability. Rather, an accommodation must be tailored
to match the needs of the disabled individual with the needs of the
job’s essential functions.
Basically, the ADA stipulates that employers
cannot discriminate (either in hiring or in continued employment) against
qualified individuals with disabilities. The Americans With Disabilities
Act defines a "disability" as a physical or mental impairment
that substantially limits one or more of an individual's major life
activities even when using a mitigating measure such as glasses, pills
or hypertension, or a hearing aid. The definition of disability also
includes having a record of such impairment or being regarded as having
an impairment and therefore, an employer may not discriminate against
an individual with a record of an impairment or against an individual
who is regarded as having such an impairment. Employers
must provide reasonable accommodation to individuals with disabilities
to perform the essential functions of their jobs, unless doing so would
create an undue hardship on the employer, or unless the employee with
the disability causes a direct threat to the health and safety of others.
Please note that the Washington Rehabilitation
Act defines disability in a much broader sense.
Definition (in actual regulation): "significant
risk of substantial harm to the health or safety of the individual
or others that cannot be eliminated or reduced by reasonable accommodation".
Things to consider:
- duration of the risk;
- nature and severity of the potential
- likelihood that the potential harm
will occur; and
- imminence of the potential harm.
A physical or mental impairment
that substantially limits one or more major life activities even when
using mitigating measures such as glasses, pills for hypertension,
or a hearing aid; having a record of such a physical or mental impairment;
or a perception
by others of such an impairment.
Having a Record of
an Impairment, or
Regarded as Having Such an Impairment:
Person must be required to perform the
function; and position
exists to perform the function. A limited number of other employees
are able to perform the function, or function is highly specialized.
An essential function is not something which bears only
a marginal relationship to the job.
A person who has
a physical or mental impairment that substantially limits them
in a major life.
- Includes those who have recovered
from conditions such as mental or emotional illness, heart disease,
cancer, etc., and therefore have a history of impairment and
- those who have been misclassified
as impaired such as mental retardation, etc.
A person is regarded as having such an
impairment if he/she:
- Does not have an impairment but
is treated as if he/she has a limitation;
- Has an impairment but it only limits
major life activities as a result of attitudes of others toward
Major Life Activity:
Functions include: caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, sitting, standing, lifting, reaching, and working. Exercising
cognitive functions is also a major life activity. Multiple impairments
that combine to substantially limit a major life activity may also
be considered a form of disability.
- Its nature and severity
- How long it will last
- Its permanent or long-term impact
Supervisor’s Note: The
Washington Rehabilitation Act (WRA) goes even farther in this regard
than does the ADA. Under the WRA, the disability need not "limit
a major life activity" to be defined as a disability. The WRA
is much broader and provides protection to employees who display any
abnormal medical condition that’s not accommodated.
The Supreme Court
has held that the determination as to whether an impairment "substantially
limits" one or more major life activities must be made when an
individual is medicated or is using his or her assistive device, so-called
"mitigating measures." As a result, employers need not consider
an individual's impairment in its uncorrected state to determine if
the individual is disabled under the ADA.
Physical or Mental
- Any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting any of several
body systems. These body systems include neurological, musculoskeletal,
special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, hemic and lymphatic, skin,
endocrine, and any mental psychological disorder.
Mental or psychological disorders
(Defined by the DSM IV)
- The ADA defines "mental impairment’
as any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities. Examples include alcoholism (sober), anxiety
disorder, major depressive disorder, schizophrenia, etc.
mental impairment does not include:
- Non-chronic impairments of short duration
with little or no long term impact such as broken limbs, sprained
joints, concussions, appendicitis, and influenza
- Simple physical characteristics
such as left-handedness and personality traits such as being irresponsible
or having poor judgment
- Environmental, cultural or economic
disadvantages, such as prison
record or lack of education
with a Disability:
A person who:
- meets necessary prerequisites for
the job such as
appropriate years of employment experience, education, certificate
or license, etc.
- can perform the essential functions
of the job that the person holds or desires with or without reasonable
of whether an individual with a disability is qualified is to be made
at the time of the employment decision, based on the individual's
capabilities and qualifications, not speculation.
An adjustment to an employee’s job, schedule
or equipment that does not create an "undue hardship" on
the employer. When an employee decides to request accommodation,
the individual or their representative must let SPU know that the
employee needs an adjustment or change at work for a reason related
to a medical condition. To request accommodation, an employee
may use "plain English" and need not mention the ADA or
use the phrase "reasonable accommodation." While the
employee may request the change due to a medical condition, this does
not mean that SPU is required to provide the change. The request
is the first step in what is supposed to be an interactive process
between the employee and SPU.
limitation" occurs when an impairment prevents or "significantly
restricts" the duration, manner, or condition under which the individual
could perform a major life activity as compared to an average person
in the general population. Generally, it is not the name of the impairment
or conditions that determines whether a person is protected by the ADA,
but rather the effect of an impairment or condition on the life of a
particular person. Some impairments such as blindness, deafness, or
AIDS, are by their nature substantially limiting, but many other impairments
may be disabling for some individuals but not others, depending on the
impact on their activities.
Undue hardship means a significant difficulty
or expense and focuses on the resources and circumstances of the particular
employer in relationship to the cost or difficulty of providing a
specific accommodation. Undue hardship refers not only to financial
difficulty, but to reasonable accommodations that are unduly extensive,
substantial, or disruptive, or those that would fundamentally alter
the nature or operation of the business. SPU is required to
assess on a case-by-case basis whether a particular reasonable accommodation
would cause undue hardship. Consider:
- Nature and net cost of accommodation
- Financial resources of facility, number
of employees, and impact on resources of facility
- Type of operation
- The ADA does not require
the creation of new positions or bumping other employees
Supervisor’s Note: Situations
causing poor departmental morale have not generally been considered
by the courts as "undue hardship". Situations where a disabled
employee’s condition causes considerable additional work and stress
on other members of the department for prolonged periods of time have,
in many circumstances, been considered by the courts as undue hardship.
The following Information
is published by the United States Department of Labor concerning Pre
Aside from the common
courtesy due to anyone being interviewed, regardless of disability,
the Americans with Disabilities Act (ADA) places some restrictions on
the employer's pre-employment inquiries:
- What Are the
Restrictions on Pre-Employment Inquiries?
applications, medical examinations, and tests are often used by
employers to determine the competency of the applicant. Keep in
mind that, at the pre-offer stage, disability-related questions
questions that would likely cause the applicant to discuss their
disability and medical examinations are prohibited under the ADA.
- How Can I
Be Sure To Comply with the ADA Restrictions on Pre-Employment Inquiries?
thorough job description that identifies the essential elements
of the job. By relying on this description, both the interviewer
and applicant are aware of the essential elements of the job.
Employers should also review old application forms to ensure that
medical histories are not requested, since this is no longer appropriate.
- How Should
I Handle Pre-Employment Inquires during the Interview Process?
to ask only questions regarding the information on the individual's
application form. You may ask the applicant what prior job duties
he or she performed. Be careful not to ask applicants about visible
physical characteristics or their health status. It is not legal
to inquire if the applicant has a psychiatric disability, a history
of having a psychiatric disability, or if he or she has consulted
with a psychiatrist. Nor may questions be asked about past drug
- May I Conduct
an Employment Physical?
The law permits
a medical examination if the medical evaluation is conducted after
an offer of employment has been made. However, if physicals are
conducted, they must be conducted for all employees in that job
category and the medical information gathered must be kept separate
from the personnel file. Drug testing is not considered a "medical
examination" under the law. Therefore, pre-employment tests for
illegal drug use are permitted by the ADA.
to Pre Employment Inquiries (link to hiring policies section)
US DOL, July 1996
- Generally, the
term essential functions means the fundamental job duties of the employment
position the individual with a disability holds or desires. The term
"essential functions" does not include the marginal functions of the
- A job function
may be considered essential for any of several reasons, including but
not limited to the following:
1. The function
may be essential because the reason the position exists is to perform
2. The function
may be essential because of the limited number of employees available
among whom the performance of that job function can be distributed;
3. The function
may be highly specialized so that the incumbent in the position
is hired for his or her expertise or ability to perform the particular
- Evidence of whether
a particular function is essential includes, but is not limited to:
1. The employer's
judgment as to which functions are essential;
2. Written job
descriptions prepared before advertising or interviewing applicants
for the job;
3. The amount
of time spent on the job performing the function;
4. The consequences
of not requiring the incumbent to perform the function (impact on
5. The terms
of a collective bargaining agreement;
6. The work
experience of past incumbents in the job (employee's perception
as to what is essential); and/or
7. The current
work experience of incumbents in similar jobs.
Please check with
Human Resources if you have any questions regarding this information.
- Be very careful and thorough in handling
a disability situation. Unless the employee discloses that they have
a disability it is better not to speculate or guess. If an employee
is performing poorly, always focus on the performance issue and address
- If the employee tells you that they
have a health problem, work in cooperation with the Office of Human
Resources to determine if the employee has a disability that needs
to be accommodated.
- Once a disability has been identified,
explore ways to accommodate the employee. The process of determining
accommodations must be interactive so the employee should be involved
as much as possible.
- Recognize that short-term, management
difficulties typically are outweighed by the expense, uncertainty
and inconvenience of litigation.
- Keep the process confidential.
Recognize the possible
signs of a disability through job performance
Complaints of pain
- Absenteeism or tardiness
- Precipitous decline in performance
- Radical change in attitude
- Mood swings
- Poor quality of work
- Difficulty in interpersonal relations
- Frequent accidents, mistakes, carelessness
- Change in work patterns
- Difficulty in meeting deadlines
- External complaints, etc.
Supervisor’s Note: You
are permitted to inquire about the existence of a disability that
may be getting in the way of job performance if you can reasonably
conclude from comments or actions of an employee that a disability
is interfering with job performance. As a general rule, it is best
to focus primarily on job performance and let the employee raise
the medical issues first.
In order to understand whether or not
this problem is keeping the employee from being able to effectively
perform their job, you must first work to identify essential functions
of the job.
Supervisor’s Note: There
are many areas to consider when identifying the essential functions
of a job -- hopefully this step has already been completed in writing
or updating the job description. This step is important for determining
(always on a case-by-case basis) reasonable accommodations, if any.
The Office of Human Resources is prepared to assist supervisors in
Work with HR
to determine, if a disability exists
Ask yourself: According
to the definitions provided above, and understanding that the Washington
law is very broad, does this condition appear to be a disability?
In coordination with the Office of Human
Resources, supervisors should work with the employee, the employee’s
physician and other physicians (if necessary) to determine nature,
diagnosis, prognosis and precise mental and physical limitations of
a condition. In working with the physician, very clear detailed information
about the job should be supplied to the physician. A written medical
evaluation should be obtained from the physician which is specific,
detailed and tailored to the particular individual and his or her
Supervisor’s Note: In
many cases, without detailed information from a physician, it is difficult,
if not impossible, to make objective determinations about an employee’s
ability (given their condition) to perform the job functions and what
types of accommodation might be helpful. A supervisor must have a
clear understanding of the needed accommodations before determining
the reasonableness of those accommodations. In the process of obtaining
information from the employee’s attending physician (where applicable),
the University has reserved the right to request a second medical
opinion from a University chosen physician at the University’s expense.
There will be cases where the disability and needed accommodations
are pretty clear cut and there is no need for physician certification.
If a disability,
can it be accommodated?
If it is determined that an employee
has a disability, then you must consider if the disability be accommodated
without creating an undue hardship on the organization.
Discuss potential accommodations:
with the employee, front-line supervisor; and
with a physician. Consider accommodations that have been made for other
employees. (The Office of Human Resources can be particularly helpful
in this area.) Types
of possible accommodations could include:
- Reallocation or redistribution of
- Modification of work schedules
- Modification of work stations or equipment
- Flexible leave arrangements
- Leave to obtain treatment
- Reassignment to a vacant position
- Modification of training materials
- Providing qualified readers or interpreters
- Extension of leave policy
- Purchase of certain equipment or devices
- back brace
- special video display monitor
- special chair
- wrist brace
A modification or adjustment
satisfies the reasonable accommodation obligation if it is "effective."
Supervisor’s Note: Purchase
of certain equipment can be made the responsibility of the employee
if that equipment would aid the employee in their day to day, outside
of work living. For example, if an employee’s performance was suffering
due to a vision problem that was correctable by purchasing eyeglasses,
the employee would be responsible for the purchase.
After accommodations have been decided
upon and provided, continue to monitor the situation to insure adequate
job performance and no undue hardship.
accommodations may be ineffective
Inherently stressful jobs
Even reasonable accommodation may be
insufficient where an inherently stressful job is concerned. In
addition, employees with mental disabilities may perceive certain
situations as stressful. Typically, this can include jobs that require
significant interpersonal contact, or the need to work in close
contact with supervisors, coworkers, or customers. In such situations,
a mentally disabled employee may be unable to perform the essential
functions of the job, even after reasonable accommodation and would
not be considered a "qualified individual". Further accommodation,
including a job transfer to an open position should be considered.
Attendance is normally an essential
function of the job. In order to perform the job, an employee
must show up to work. Chronic absenteeism may constitute an
inability to perform the essential functions of the job, which could
remove the employee from the category of "qualified individuals."
It is extremely important to keep information
about an employee’s disability entirely confidential sharing details
only with those who have a need to know. An employee’s direct supervisor
certainly has a need to know since they will be working to provide
the accommodations (if necessary). The Office of Human Resources is
very careful to keep medical records and materials pertaining to the
medical condition of employees in completely separate files from the
employee’s personnel files. Supervisors should do the same. To do
otherwise could be considered by the employee, and eventually the
courts, as discriminatory, especially if for some (maybe even legitimate)
reason the employee is eventually dismissed.