Tuesday, July 27, 2010

Americans With Disabilities Act: Something to Celebrate

July 26 marks the 20th anniversary of the ADA (Americans With Disabilities Act--now fondly nicknamed the ADAAA, after the 2009 amendments).

Presumably, we all agree that people in general (and employees in particular, since this is a blog about employment law) should be judged (i.e. employed) based on their abilities, not their disabilities. The ADA takes it further, however.

The Ninth Circuit has said: “Unlike other types of discrimination where identical treatment is the gold standard, identical treatment is often not equal treatment, with respect to disability discrimination.” Gambini v. Total Rental Care, Inc., 486 F.3d 1087 (9th Cir., 2007)

This is the heart and soul of the ADA: a differently-abled person is entitled to some flexibility or even adjustment of the expectations of the job ("accommodation"), if that accommodation will allow the differently-abled person to get the job done.

Which makes sense. Given the choice between an unemployed or underemployed population of differently-abled persons, on the one hand, and full employment that requires some accommodation, on the other hand, full employment is preferable. Full employment should provide greater personal satisfaction for the individual, and is certainly preferable from the perspective of our state and federal governments—employed people pay taxes, and don't require as many government services and benefits.

So, in theory, we are all on board with the ADA. It is in practice that employers may encounter difficulties.

For example, what do you do with an employee suffering from bi-polar disorder whose job entails working closely with co-workers and customers, who occasionally exhibits extreme behavior offensive to those co-workers and customers?

How do you accommodate a person with diabetes who refuses to monitor and adjust her blood sugar, putting herself and others at risk for the consequences of insulin shock?

Or what about the bugaboo nobody wants to acknowledge: the employee who is perfectly capable of doing the job but uses a medical condition as an excuse to avoid meeting employment standards or receiving discipline?

There are no easy answers. The premise of the ADA (and the ADAAA), however, is that we have to try. Employers are required to sit down with employees who have indicated they have a medical condition that is or may be disabling, and attempt to figure out what effect the employee's condition has on the employee's ability to perform the job, and whether some accommodation is possible.

In legal jargon, it's called the "interactive process." In real life, it's a candid discussion about options.

This is really what the ADA comes down to: Options. Where before there were only closed doors and prejudice and stereotypes, now there are options.

And that's something we can all celebrate.

Recommended Viewing: Music Within

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