The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability, such as blindness or low vision (B/LV). The ADA also outlaws discrimination against B/LV individuals in state and local government services, public accommodations, transportation, and telecommunications. The ADA’s prohibitions against job discrimination are enforced by the U.S. Equal Employment Opportunity Commission (EEOC) and state and local civil rights enforcement agencies.
The part of the ADA enforced by the EEOC outlaws job discrimination by all employers, including state and local governments, with 15 or more employees. Another part of the ADA, enforced by the U.S. Department of Justice (DOJ), prohibits discrimination in state and local government programs and activities, including discrimination by all state and local governments, regardless of the number of employees.
Which employment practices are covered under the ADA?
The ADA makes it unlawful to discriminate in all employment practices, including:
- Job assignments
The ADA prohibits an employer from retaliating against an applicant or employee for asserting his or her rights under the ADA. It is also unlawful to discriminate against an applicant or employee, whether disabled or not, because of the applicant's family, business, social, or other association with another individual who has a disability.
What are the “essential functions” of a job? Why are they important?
Most jobs are made up of more than one function. Very few people go to work and do the exact same thing, all day, every day. Essential functions are the job duties and skills that are necessary in order to perform the job. In other words, without them the job could not be done.
Understanding the essential functions of a job will protect you, as an employer, from job discrimination violations under the ADA. If a person with disabilities is able to perform the essential functions of a job— with or without reasonable accommodations—you must give them due consideration during the hiring process.
How are essential functions determined?
Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential. (This is particularly important before taking an employment action, such as recruiting, advertising, hiring, promoting, or firing).
Factors to consider in determining if a function is essential include:
- Whether the job position exists in order to perform that function
- The number of other employees available to perform the function or among whom the performance of the function can be distributed
- The degree of expertise or skill required to perform the function
The EEOC can use your judgment as to which job functions are essential, as well as written job descriptions prepared before advertising or interviewing for a job, as evidence of essential functions. Other kinds of evidence the EEOC will consider include:
- The actual work experience of present or past employees in the job
- The time spent performing a function
- The consequences of not requiring an employee to perform a function
- The terms of any collective bargaining agreements
Marginal or nonessential job functions are those that could be redesigned or reassigned to other employees, if necessary. Whether or not a particular duty is considered marginal will depend on:
- The importance of the duty to your company's operation
- The frequency with which the duty must be performed
- Whether there are sufficient staff to reassign the marginal duty to someone else
- Whether the marginal duty can be redesigned or performed in another way
In other words, if the duty is important to your company's operation and is performed often, if there aren’t sufficient staff to reassign the duty, and if the duty can't be redesigned or done another way, then the duty is an essential function of the position.
Consider the job role of a receptionist.
Essential job functions might include:
- Answering the telephone and assisting callers
- Recording messages for department personnel
- Greeting clients and customers
There might also be marginal job functions, such as:
- Serving coffee to clients and customers
- Escorting clients to staff offices
In order to do this job, an applicant would need to be able to perform the essential job functions of this position with reasonable accommodation.
What is a reasonable accommodation?
A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to:
- participate in the job application process
- perform the essential functions of a job
- enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
For example, reasonable accommodations could include:
- Providing adaptive or modifying equipment or devices
- Job restructuring
- Part-time or modified work schedules or job sharing
- Reassignment to a vacant position
- Adjusting or modifying examinations, training materials, or policies
- Providing readers or interpreters
- Making the workplace readily accessible to and usable by an individual who is B/LV
- Modified lighting, such as brighter lights or multiple light sources
An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship—that is, that it would require significant difficulty or expense.
Often, B/LV job applicants work with the state vocational rehabilitation (VR) agency that serves individuals who are B/LV. The VR agency often has already supplied applicants with specialized equipment, such as a computer with speech output or large print enhancement, so the cost to the employee or employer for some equipment may be little to none. The VR agency will work with the applicant and employer to establish what equipment is needed for a position and what can be provided.
What can I do to be more prepared to interview a B/LV job applicant?
Reach out to your state’s VR agency that provides services to people who are B/LV. Learn about the rehabilitation process and visit a rehabilitation site. Observe how people are trained in adaptive techniques to carry out tasks in different ways or by using assistive technology. This will give you a greater understanding of how a B/LV applicant could fill a job position at your workplace.
Can an employer ask about an applicant’s disability or require a medical examination?
Employers may not ask an applicant if he or she is disabled or about the nature or severity of a disability. An employer may ask about how an applicant can perform job duties, with or without reasonable accommodation. You may also ask an applicant to demonstrate how, with or without reasonable accommodation, he or she would perform job duties.
An employer cannot require an applicant to take a medical examination before the applicant is offered a job. Following a job offer, you can ask a new employee to pass a required medical examination, but only if all entering employees for that job category must undergo the same examination. You may not reject an applicant if information about a disability is revealed by the medical examination unless the reason for rejection is job-related and necessary for the conduct of business. You cannot refuse to hire a new employee because of a disability if the new employee can perform the essential functions of the job with reasonable accommodation.
Once a B/LV employee has been hired and started work, an employer cannot require a medical examination or ask questions about the employee’s disability unless the question is related to the job and necessary for the conduct of business. Employers may conduct voluntary medical examinations as part of an employee health program and may provide medical information required by state workers' compensation laws to the agencies that administer such laws.
The results of all medical examinations must be kept confidential and maintained in separate medical files.
Should an employee pay for any reasonable accommodations he or she needs?
No. The ADA requires that employers provide any needed accommodations, unless providing them would impose an undue hardship on the operation of the employer's business. If the cost of providing a needed accommodation is an undue hardship, the employee must be given the choice of providing the accommodation themselves or paying for the portion of the accommodation that causes the undue hardship.
If an employee needs a reasonable accommodation to do his or her job, can the employer lower that employee’s salary or pay him or her less than other employees doing the same job?
No. An employer cannot make up the cost of providing a reasonable accommodation by lowering the employee’s salary or by paying the employee with a disability less than other employees in similar positions.
As an employer, do I have to make nonwork areas used by employees, like cafeterias, lounges, or employer-provided transportation, accessible to people with disabilities?
Yes. The requirement to provide reasonable accommodations covers all services, programs, and nonwork facilities provided by an employer. If making an existing facility accessible would be an undue hardship, the employer must provide a comparable facility that would enable a person with a disability to enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless to do so would be an undue hardship.
If I have several qualified applicants for a job, am I required to select a qualified applicant with a disability over other applicants without a disability?
No. The ADA does not require that an employer hire an applicant with a disability over other applicants. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability because he or she is disabled or because a reasonable accommodation is required in order for this person to perform essential job functions.
Can I refuse to hire an applicant because I believe it would be unsafe, due to a disability, for him or her to work with machinery required to perform the essential functions of the job?
The ADA permits an employer to refuse to hire an individual if he or she poses a direct threat to the health or safety of self or others. A direct threat means a significant risk of substantial harm. The determination that there is a direct threat must be based on objective, factual evidence regarding a person’s present ability to perform essential functions of a job. An employer cannot refuse to hire someone because of a slightly increased risk or because of fears that there might be a significant risk in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.
If the health insurance I offer my employees does not cover all the medical expenses related to potential employees with disabilities, must I obtain additional coverage for those employees?
No. The ADA only requires employers to provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees.
Should I expect an applicant with a disability to disclose that disability during a job interview?
If the applicant thinks he or she will need a reasonable accommodation to participate in the application process or to perform essential job functions, he or she should inform the employer that an accommodation will be needed. Employers are required to provide reasonable accommodations only for the physical or mental limitations of a qualified individual with a disability of which they are aware. Generally, it is the responsibility of the employee to inform the employer if an accommodation is needed.
Where can I get additional ADA information and assistance?
The Equal Employment Opportunity Commission (EEOC) works to promote voluntary compliance with the ADA, help people with disabilities understand their rights, and help employers understand their responsibilities under the law. The EEOC publishes educational materials, provides training on the ADA for people with disabilities and for employers, and participates in meetings and training programs of other organizations. EEOC staff will respond to individual requests for information and assistance. These educational activities are separate and distinct from the EEOC’s enforcement responsibilities. Employers who seek information or help from the EEOC will not be subject to any enforcement action because of such inquiries.
The EEOC provides information on their website about the ADA specifically related to B/LV in the workplace.