The 30th anniversary of Americans with Disabilities Act (“ADA,” for short) was July 26, 2020. To commemorate this milestone, the Equal Employment Opportunity Commission (“EEOC”) published a separate webpage with links to useful resources for workers and employees (as well as proactive, responsible employers). One particularly useful page lists what the EEOC considers important agency guidance on the ADA.
An Introduction to the ADA
This anniversary also presents a good opportunity to give a brief primer on the ADA and to place it in the context of the current COVID-19 pandemic.
The ADA, originally enacted in 1990 and amended several times since, is a civil rights law intended to prohibit discrimination against persons with disabilities and to provide them equal access and opportunity in various areas of our lives, including employment, government, transportation, telecommunications, and public spaces. The full text of the ADA, incorporated into the United States Code, can be found here.
Title I of the ADA protects disabled employees from discrimination in employment. Title V prevents retaliation against persons who assert (or assist those who assert) their rights under the ADA. The EEOC’s fact sheet about Disability Discrimination is a good starting point for further research, and you can find the ADA’s Titles I and V here.
The precise application of the ADA is more complicated, and you should consult a lawyer about your specific circumstances. But generally, the ADA will apply to you as an employee if:
- your employer has 15 or more employees; AND
- You have a qualifying disability.
The ADA defines a disability as:
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 USC § 12102(1) (emphasis added). The ADA provides a non-exhaustive list of what includes a major life activity—and, the EEOC provides extensive guidance on the matter. It includes: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 USC § 12102(2)(A). And, the “operation of a major bodily function” is included in the definition of a major life activity. 42 USC § 12102(2)(B).
Assuming, for argument’s sake, you and your employer (or potential employer) qualify under the ADA, then the employer is prohibited from discriminating against you based on the disability in “job application procedures, the hiring, advancement, or discharge of [you], [your]compensation, job training, and other terms, conditions, and privileges of employment.” 42 USC § 12112(a).
And, discrimination includes, among other things, your employer failing to make reasonable accommodations for your “known physical or mental limitations,” so long as the employer cannot “demonstrate that the accommodation would impose an undue hardship on the operation of the business . . .” 42 USC § 12112(b) (emphasis added).
Recent Examples of Alleged Discrimination under the ADA
Now, with all that background in mind, how might the ADA apply in the real world?
- Discrimination against the Deaf & Hard-of-hearing. In 2015 the EEOC sued FedEx, alleging that it was discriminating against persons who were deaf or hard-of-hearing and worked as package handlers. The EEOC claimed that FedEx failed to make reasonable accommodations for those persons in hiring, training, and the general work, for example by relying on a sound emitted when packages were scanned, and by giving trainings and conducting meetings that were included auditory materials that persons deaf or hard-of-hearing could not participate in. Although the case recently settled such that FedEx was not found by a judge or jury to be liable, this case shows that even large companies, with vast resources and compliance departments, can be credibly accused of engaging in discriminatory practices. If you want more information on this case, you can read more detailed summaries by the EEOC on the filing and the settlement or look up the actual case. EEOC v. FedEx Ground Package Sys., Inc., 15-cv-00256 (W.D. Penn., Febr. 25, 2015).
- A new frontier, COVID-19 and the ADA? An interesting question that will likely be explored further through litigation is whether (and to what extent) COVID-19-related lawsuits can be successful under the ADA. Some cases have been brought under the ADA’s Title III, related to whether restaurants, nursing homes etc., “places of public accommodation,” are taking enough preventative measures to protect the public. And, there will undoubtedly be lawsuits filed by people who believe they were wrongfully terminated (under Title I and/or Title V) because they had COVID-19. But the real threshold question the courts will have to answer is whether COVID-19 qualifies as a “disability” under the ADA. We will keep you posted on that.