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Discrimination in Employment

§ 8.14.01
Key Point 8-14.01. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.

Title I of the ADA prohibits discrimination in any employment decision against a qualified person with a disability. This section of the ADA applies to any employer that is engaged in a business or activity that "affects" interstate commerce and that has 15 or more employees. The prohibition of discrimination applies to all aspects of the employment relationship, including recruitment, advertising, processing of applications, hiring, promotion, awards, demotion, transfer, layoff, termination, right of return following layoff, rates of pay, job assignment, leaves of absence, sick leave, fringe benefits, financial support for training (e.g., apprenticeships, professional meetings and conferences), and employer-sponsored social or recreational programs. The word "discriminate" is defined broadly, and includes:

  • segregating or classifying a job applicant or employee on the basis of a disability (if doing so adversely affects the person's job opportunities);
  • utilizing standards or criteria that have the effect of discriminating on the basis of disability;
  • not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer;
  • using employment tests or other selection criteria that screen out or tend to screen out disabled individuals, unless the test or criteria is shown to be jobrelated for the position in question and is consistent with business necessity.

Prohibited discrimination must be against a qualified individual with a disability. This important term is defined as follows:

The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For purposes of this title, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

This definition contains several important terms. For example, a qualified individual with a disability is someone who, with or without reasonable accommodation by the employer, can perform the essential functions of the job. The regulations interpreting the ADA list the following factors to consider in deciding whether or not a particular function is essential: (1) the employer's judgment; (2) a written job description prepared by the employer before the employee is hired; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring an employee to perform the function; (5) the essentiality of the function in the work experience of current and former employees in similar positions. It is clear that qualified individuals with a disability cannot be discriminated against simply because they cannot perform marginal job functions. For example, job applicants with a disability that prevents them from using their hands would not be "qualified individuals with a disability" with respect to a clerk-typist position that involves mostly typing, since typing would be an essential function that such persons could not perform. However, these persons would be qualified individuals with a disability with respect to jobs requiring only occasional, light typing, since in such cases typing would be a marginal rather than an essential job function.

The ADA defines the term disability to mean "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." The term also includes persons who are "regarded" as being disabled even though they are not. Examples of disabilities include orthopedic, visual, speech, and hearing impairments; cerebral palsy; epilepsy; HIV infection; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; mental retardation; and emotional illness.

The ADA also lists several behaviors and conditions that are not disabilities. These include homosexuality; bisexuality; illegal drug use; transvestism; pedophilia; exhibitionism; voyeurism; gender identity disorders and other sexual disorders; compulsive gambling; kleptomania; and pyromania.

Note that the term qualified individual with a disability includes persons who can perform the essential functions of a job with reasonable accommodation by the employer. Employers must recognize that they now have an affirmative duty to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless they can demonstrate that the accommodation would impose an undue hardship on the operation of their business. The term reasonable accommodation is defined by the ADA as

making existing facilities used by employees readily accessible to and usable by individuals with disabilities, and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The House Report to the ADA contains the following additional comments regarding reasonable accommodation:

In [some] cases, the acquisition or modification of equipment, such as adaptive hardware or software for computers, telephone headset amplifiers, and telecommunication devices will enable persons with disabilities to do the job. For some people with disabilities, the assistance of another individual, such as a reader, interpreter or attendant, may be necessary for specified activities. …
A reasonable accommodation should be tailored to the needs of the individual and the requirements of the job. Persons with disabilities have vast experience in all aspects of their lives with the types of accommodations which are effective for them. Employers should not assume that accommodations are required without consulting the applicant or employee with the disability. Stereotypes about disability can result in stereotypes about the need for accommodations, which may exceed what is actually required. Consultations between employers and persons with disabilities will result in an accurate assessment of what is required in order to perform the job duties.

Employers need not accommodate disabled individuals if the accommodation would impose an undue hardship on the operation of their business. The term undue hardship is defined by the ADA as

an action requiring significant difficulty or expense, when considered in light of [the following factors]: (i) the nature and cost of the accommodation needed; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources; or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

The ADA states that religious organizations (including religious educational institutions) are not prohibited "from giving preference in employment to individuals of a particular religion to perform work" connected with the carrying on by the organization of its activities. The ADA further provides that "a religious organization may require that all applicants and employees conform to the religious tenets of such organization."

The ADA also prohibits pre-employment medical tests, and requires covered employers to post notices to applicants and employees describing the applicable provisions of the Act.

What is the relevance to religious organizations of the ADA's prohibition of employment discrimination against qualified individuals with a disability? Consider the following three points:

  • The ADA's employment discrimination provisions apply only to employers engaged in a business or activity that "affects" interstate commerce and that have 15 or more employees. Any religious organization with fewer than 15 employees is not covered by the ADA's employment discrimination provisions. Any religious organization having 15 or more employees will be covered only to the extent that it is engaged in a business or activity that "affects" interstate commerce. The application of the "commerce" and "employee" requirements to religious organizations are addressed fully earlier in this chapter.
  • The ADA specifically permits religious organizations (including religious educational institutions) to "give preference in employment to individuals of a particular religion to perform work connected with the carrying on by organization of its activities."
  • The ADA further provides that "a religious organization may require that all applicants and employees conform to the religious tenets of such organization."

The United States Supreme Court issued a unanimous ruling in 2012 affirming the "ministerial exception."[120] Hosanna–Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012). The Hosanna-Tabor case is addressed in sections 2-04.1 and 8-10.1 of this text. The ministerial exception is an exception to the liability of churches under state and federal employment discrimination laws for the employment discrimination claims of ministers. As a result, it is unlikely that the civil courts will entertain employment discrimination claims of clergy against their employing church.

Case studies
  • A denominational agency employs D as a maintenance worker. D suffers a heart attack, and is no longer able to shovel snow. D's job description lists snow shoveling as an essential function of his position. Accordingly, the agency terminates D. Assuming that the agency is a covered employer under the ADA, it has violated the law. Consider the following analysis: the first question is whether or not D is a qualified individual with a disability. The term "qualified individual with a disability" is defined by the ADA as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. D is clearly disabled. The ADA lists "heart disease" as a disability (assuming that it substantially limits one or more major life activities). The question then is whether or not D, with reasonable accommodation, can perform the essential functions of the job. Once again, it is clear that D's disability can be accommodated in such a way as to permit him to perform the essential function of snow shoveling. This could simply mean the purchase of a $500 snow blower. The final question is whether or not the reasonable accommodation (purchasing a snow blower) would impose an undue hardship on the employer. Several factors may be considered in answering this question. However, under these facts, it is unlikely that the purchase of a $500 snow blower would impose an undue hardship. Accordingly, the employer must accommodate D's disability. By firing D, the employer failed to reasonably accommodate D's disability, and thereby committed unlawful discrimination.
  • Same facts as the previous case study, except that the employer is a local church with 3 employees. The ADA would not apply, since it applies only to employers having at least 15 employees.
  • A denominational agency has an opening for a job requiring some use of a computer. K, a blind female, applies for the position. The agency informs K that she is not qualified for the position since she cannot type, and hires someone else. The House Report to the ADA states: "For example, in a job requiring the use of a computer, the essential function is the ability to access, input, and retrieve information from the computer. It is not essential that the person be able to use the keyboard or visually read the information from a computer screen. Adaptive equipment or software may enable a person with no arms or a person with impaired vision to control the computer and access information." Assuming that the agency is a covered employer under the ADA, it has violated the law. K clearly is a qualified individual with a disability. The term "qualified individual with a disability" is defined by the ADA as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. Since the "essential function" of the job is the ability to access, input, and retrieve information from the computer (and not the ability to use the keyboard or visually read the information from a computer screen), K can perform this function with reasonable accommodation. This could simply mean the purchase of an "adaptive equipment or software." The final question is whether or not the reasonable accommodation (purchasing the adaptive equipment or software) would impose an undue hardship on the employer. Several factors may be considered in answering this question. However, under these facts, it is unlikely that the purchase of such equipment or software would impose an undue hardship, if its cost is insignificant in comparison to the agency's total budget. Accordingly, the employer must accommodate K's disability. By refusing to consider K, the employer failed to reasonably accommodate K's disability, and thereby committed unlawful discrimination.
  • A denomination conducts a summer camping program for minors. It employs several "counselors" and attendants who help to conduct the program. The denomination requires that all counselors have a valid driver's license. This requirement is based on the fact that it is sometimes necessary for counselors to drive accident victims to a nearby hospital. G applied for a counselor position but was turned down when the denomination discovered that she had epilepsy and did not have a driver's license. The House Report to the ADA states, "While it was necessary that some of the group counselors be able to drive, it was not essential that all group counselors be able to drive. On any given shift, another group counselor could perform the driving duty. Hence, it is necessary to review the job duty not in isolation, but in the context of the actual work environment. … The 'essential functions' requirement assures that a person who cannot drive because of his or her disability is not disqualified for these reasons if he or she can do the actual duties of the job." Assuming that the denomination is a covered employer under the ADA, it has violated the law. G clearly is a qualified individual with a disability. The term "qualified individual with a disability" is defined by the ADA as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position. Since the "essential function" of the job is the ability to engage in counseling activities, and not the ability to drive a car, G can perform the essential job functions without any accommodation by the employer. Accordingly, the employer must accommodate G's disability. By refusing to consider G, the employer failed to reasonably accommodate G's disability, and thereby committed unlawful discrimination.
  • A denominational agency has a job opening for a warehouse worker. The job description states that the position requires a person capable of lifting 50-pound boxes. R, who suffers from multiple sclerosis, applies for the job although he is not able to lift 50-pound boxes. The House Report to the ADA states, "[Congress] does not intend to limit the ability of covered employers to choose and maintain a qualified workforce. Covered employers continue to have the ability to hire and employ employees who can perform the job. Employers can continue to use job-related criteria in choosing qualified employees. For example, in a job that requires lifting 50-pound boxes, an employer may test applicants and employees to determine whether or not they can lift 50-pound boxes." The ADA itself states that "it may be a defense to a charge of discrimination … that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation." That is, the 50-pound box requirement is a legitimate requirement only if it in fact is job-related (i.e., workers in fact have to lift 50-pound boxes) and consistent with business necessity.
  • A denomination plans to conduct an annual conference of affiliated clergy at Hotel Y. The denomination enters into a contract with Hotel Y for the conference. Assuming that the denomination is a covered employer under the ADA, it has an affirmative duty to investigate the accessibility of Hotel Y to disabled persons. The House Report to the ADA states, "Suggested approaches for determining accessibility would be for the employer to inspect the hotel first-hand, if possible, or to ask a local disability group to inspect the hotel. In any event, the employer can always protect itself in such situations by simply ensuring that the contract with the hotel specifies that all rooms to be used for the conference, including the exhibit and meeting rooms, be accessible in accordance with applicable standards. If the hotel breaches this accessibility provision, the hotel will be liable to the employer for the cost of any accommodation needed to provide access to the disabled individual during the conference, as well as for any other costs accrued by the employer."
  • A religious organization subject to the ADA has a job opening for a typist. One of the essential functions of the job is the ability to type at least 75 words per minute. Two persons apply for the job. One is a disabled person who can type 50 words per minute. The other is a nondisabled person who can type 75 words per minute. The employer is free to hire the nondisabled person. This will not violate the ADA. The House Report to the ADA states: "An employer can continue to give typists typing tests to determine their abilities. [Congress] does not intend that covered employers have an obligation to prefer applicants with disabilities over other applicants on the basis of disability."
  • A religious organization subject to the ADA has an opening for an accountant. The job description requires that the individual be a college graduate with a degree in accounting. A blind applicant satisfies these requirements. She can perform all the essential functions of the job if she is provided with a part-time reader. If providing a part-time reader is a reasonable accommodation, then the applicant is a qualified individual with a disability, and she cannot be denied the job on the basis of her impairment unless providing the reader would constitute an undue hardship to the employer. Whether or not an undue hardship would exist depends upon an analysis of several factors, including the size, financial resources, and number of employees of the employer. Obviously, the concept of undue hardship will be much narrower for larger employers having substantial financial resources. The House Report to the ADA states, "For some people with disabilities, the assistance of another individual, such as a reader, interpreter or attendant, may be necessary for specified activities."
  • A denominational agency subject to the ADA restricts its hiring to persons who are members of affiliated churches. J, a disabled person, applies for a position with the agency. J is not a member of an affiliated church. The agency hires T for the position, since T is a member of an affiliated church (even though T had lower test scores than J). This discrimination is permitted under ADA.
  • Same facts as the previous case study, except that both J and T are members of an affiliated church. The denomination may not discriminate against J on the basis of disability.
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