Using the Americans With Disabilities Act as a guide, you can help your organization stay within the confines of the law and protect individuals with disabilities while preserving a work force that becomes more valuable with age and experience. We've been evangelizing for some time now on the need for IT to be proactive and creative in contributing to the success of the business. We want to help you do just that by showing you how to avoid legal pitfalls while making your enterprise a place where technology frees all employees--whether in IT or the end-user community--to contribute to their fullest abilities.

ADA Overview

Historically, the United States has isolated and segregated individuals--including those with disabilities--who are perceived to be unable to contribute to our economic wealth and prosperity. Such unfair treatment and unnecessary discrimination denied the disabled the opportunity to pursue employment opportunities and compete in the workplace. As a result, Congress passed the Americans With Disabilities Act (Public Law 101-336 July 26, 1990, 104 STAT. 327 [Complete Text]) to mandate the elimination of discrimination against individuals with disabilities.

The ADA prohibits discrimination against qualified individuals with disabilities, just as the Civil Rights Act of 1964 prohibits discrimination on the basis of race and national origin. But the ADA does not guarantee equal results or require preferences that favor people with disabilities over those without. Rather, it seeks to afford equal access to employment opportunities based on merit. When an individual's disability becomes a barrier to equal opportunity in the application process or denies him or her equal benefits and privileges of employment enjoyed by nondisabled employees, the ADA requires employers to consider reasonable accommodations to remove the barrier.

The ADA concerns itself with all aspects of employment, including applications, procedures, hiring, advancement, discharge, compensation, job training, and the conditions and privileges of employment. The ADA applies to enterprises with 15 or more employees and includes private employers, state and local governments, employment agencies, and labor unions. The employment provisions of the ADA are consistent with Section 504 of the Rehabilitation Act, which prohibits employment discrimination by federal employers, contractors and recipients of federal financial assistance.

The EEOC (Equal Employment Opportunity Commission) regulates and enforces the employment provisions of the ADA. Other sections of the ADA focus on public services, public accommodations and services in the private sector, and telecommunications-relay services for hearing-impaired and speech-impaired individuals. When employment discrimination is alleged under the ADA, the process starts with the EEOC and can end in compensatory and punitive damages, back and front pay, restored benefits, reinstatement, and job offers.

A person is protected by the ADA only if he or she is a "qualified individual with a disability." This determination is made on a case-by-case basis depending on the individual, the disability and the employment situation. The ADA has a two-part definition for a qualified individual with a disability. First and most obvious, he or she must have a disability. Second, a person is disabled under the ADA if he or she has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment or is regarded as having such impairment.

This description is based on the definition of disability under the Rehabilitation Act and subsequent Supreme Court decisions. It is not the same as those definitions used in other laws, such as state workers' compensation laws, or other state and federal laws that provide benefits for people with disabilities.

While the first part of the definition focuses on those with impairment, the second part protects those who may not have an impairment but may be subject to discrimination based on a record of impairment or because they are regarded as having a disability.

Impairments that substantially limit major life activities may be physical or mental. Physical impairments include physiological disorders and conditions that affect body systems--such as neurological; musculoskeletal; respiratory, including those of the speech organs; and cardiovascular disorders. Mental impairments are defined as "any mental or psychological disorders, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." Neither the ADA nor the EEOC regulations list all the conditions that amount to a disability. That would be impossible, so disability is defined case by case.

"Major life activities" are functions that an average person in the general population can perform without difficulty. They include walking, seeing, speaking, hearing, breathing, learning, caring for oneself and working. When working is the major life activity at issue, a determination of whether the individual is unable to work in a class of jobs or a broad range of jobs is required.

For example, say a computer programmer developed a vision impairment that did not substantially limit her ability to see, but she was unable to distinguish output on a computer screen because of its poor contrast. The impairment would prevent her from working as a computer operator, programmer or system analyst. She would be substantially limited in working since her impairment prevents her from working in a class of jobs requiring a computer.

Compare the case of two vision-impaired pilots who were prohibited from work as United Airlines global pilots but were capable of working as regional pilots, pilot instructors or freight pilots (Sutton v. United Airlines, 1999). The Supreme Court determined that the pilots were not disabled under the ADA.

Whether an individual is determined to be "substantially limited" is based on the effect the impairment has on that person's life activities. The individual must be significantly limited or prevented from performing a life activity compared with an average person. But not all individuals are affected equally by impairment. While some impairments, like total blindness and deafness, are inherently limiting, others may be disabling for some people but not for others. For example, some people may be disabled because of back pain and stiffness while others with similar ailments can continue to work and live normally.

EEOC regulations supply three factors to consider in determining whether a person's impairment substantially limits a major life activity: its nature and severity; how long it will last or is expected to last; and its permanent or long-term impact, or expected impact.

Recently, the Supreme Court added another consideration to the calculation: If a person experiences no substantial limitation in a major life activity when using a mitigating measure, such as medication or prosthesis, he or she does not meet the ADA's first definition of disability.

The ADA also protects individuals with a history of an impairment that substantially limits a major life activity. This prohibits discrimination based on an individual's medical record or previous mental illness. These protections remain after treatment when the individual is no longer substantially limited. For example, if the illness is cured or in remission, individuals are still protected from discriminatory acts based on their medical histories. This also applies to individuals who are misdiagnosed as having a disability. If a person is inaccurately diagnosed with a mental or learning disability, for instance, and an adverse decision is made in regard to employment or promotion, that decision can be challenged as discriminatory under the ADA.

Finally, the ADA attempts to remove the FUD (fear, uncertainty and doubt) about disability and disease by protecting individuals if they are regarded as being substantially limited. If an individual has an impairment that is not substantially limiting, an employer cannot treat him or her as substantially limited. The same is true if one has no impairment but is perceived as having a substantially limiting disability. For example, individuals are protected under the ADA if an employer discharges them based on a false rumor that they are HIV-positive.