Americans With Disabilities Act Takes Effect

Date: July 1992

On July 26, 1992, The Americans With Disabilities Act of 1990 ("ADA"), goes into effect. The ADA prohibits discrimination against "any qualified individual with a disability" in employment, public accommodations, commercial facilities, government services, and telecommunications.

An individual is considered “disabled” (previously termed “handicapped”) if the person: (1) has physical or mental impairment that substantially limits one or more major life activities; (2) has record of such an impairment; or (3) is regarded as having such an impairment.

The law only applies to an individual who has substantial impairments which limit major life activities such as seeing, hearing, speaking, breathing, learning, and walking. For example, individuals with epilepsy, paralysis, AIDS, or mental retardation are included. Minor non-chronic conditions of comparatively short duration such as sprains, infections, or the flu, generally are not covered. Congress has also expressly excluded certain kinds of conditions and activities such as transvestism, substance abuse disorders, and sexual behavior disorders.

The ADA prohibits discrimination on all employment practices such as job application procedures, hiring, firing, promotions, compensation, and training. In essence, the law prohibits discrimination against someone who has a disability and is qualified to perform the essential functions of the position. Inability to perform merely marginal non-essential duties will not disqualify the individual. The law states that a person can perform the essential functions so long as he or she can do so with a reasonable accommodation by the employer.

Reasonable accommodations are required but not when it becomes an undue hardship. What constitutes a reasonable accommodation depends upon the job, the disability, the size of the employer and other factors. Accommodations may include restructuring a job, modifying schedules, acquiring or modifying equipment and providing readers or interpreters.

The current California Fair Employment and Housing Act (FEHA) is similar to the ADA in that both laws prohibit discrimination on the basis of physical handicap. However, the ADA also includes mental disabilities. State and federal laws also the treat use of alcohol differently. Although the effect on employers outside the state of California will be greater, the ADA will still have a substantial effect on California employers.

Among others, the new law will affect the following areas:

• Job descriptions compiled prior to advertising or interviewing for the job will become much more important.
• Employers will have to insure that their facilities are accessible to disabled persons and that they can accommodate disabled persons who wish to apply.
• Jobs must be structured with the essential functions of the job in mind. Denying an employment opportunity because a person cannot perform merely marginal duties of a job will be illegal.
• Medical examinations must be handled properly.
• Application forms, personnel manuals and handbooks must not contain questions or standards illegal under the ADA.
• Testing procedures must accurately reflect the skills or aptitude required to perform the essential functions of the job.

Failure to comply with the ADA law can be serious. An employer could be liable for actual damages and punitive damages caused by the disability discrimination.

ADA is fairly complex and, for some employers, the requirements may be quite new.

If you have questions regarding this new law, need assistance in complying or wish further information feel free to call our Labor Department at (310) 858-7700.

The Americans With Disabilities Act —

• Takes effect on July 26, 1992 for those employers with 25 or more employees
• Goes into effect on July 26, 1994 for those employers with between 15 and 24 employees
• Will not affect most employers with fewer than 15 employees but the company will still be bound by similar California laws.

Our Labor Department represents employers in wrongful termination and employment discrimination cases in state and federal courts. The department also represents employers in collective bargaining negotiations, arbitrations and matters before state and federal administrative agencies. In addition, we provide general labor counseling on unionization, personnel policies, grievances and wage and hour issues.

Rosenfeld, Meyer & Susman was founded in 1957. The Firm's areas of expertise include: Litigation, Corporate, Entertainment, Estate Planning, Trusts and Probate, Labor and Employment Law, Tax, Insurance Coverage and Defense, Family Law, Real Estate, Partnership Disputes, and Sports Law.