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  • Writer's pictureDavid Manes

Americans with Disabilities Act – Failure to Accommodate

The Americans with Disabilities Act (“ADA”) provides protection for “disabled individuals” who are currently employed or seeking employment. The ADA provides many remedies for individuals who may need a special accommodation in order to secure employment. If you are an individual currently working or seeking work and need an accommodation, under the ADA, your Employer may have to provide you with such an accommodation. If your Employer fails to provide you with an accommodation, you may be able to bring a discrimination lawsuit.

First, you have to have a “disability” within the meaning of the ADA in order to use the statute’s protections and remedies. The ADA defines a “disability” as an individual (1) with a physical or mental impairment that substantially limits one or more major life activities, (2) with a record of such an impairment or (3) being regarded as having such an impairment. 42 U.S.C. §12102(1). This is the first hurdle.

Second, you must be a “qualified individual” within the meaning of the ADA. The ADA defines a “qualified individual” as an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. § 12111(8). This means that an individual must be able to perform the job functions “with or without an accommodation.” This is the second hurdle. If you overcome these two hurdles, then you fall under the ADA and receive all the protections the statute offers.

The ADA provides certain protections to disabled individuals. The ADA specifically states that no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The ADA also states that discrimination occurs when an Employer: (1) fails 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 or (2) denies employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make “reasonable accommodation” to the physical or mental impairments of the employee or applicant. 42 U.S.C. §12112(b)(5).

In simpler terms, if an employee requests a reasonable accommodation from their Employer, the Employer must generally provide such accommodations. If the Employer fails to provide such accommodations, the employee may be able to bring a discrimination lawsuit. In the alternative, if an individual applies for a job and is denied the job because the potential Employer fails to provide a reasonable accommodation that would allow the individual to work, the individual may be able to bring a discrimination lawsuit against the potential Employer.

It is important to remember that an Employer usually has to provide accommodations if a disabled individual request such. However, there are certain situations where an Employer doesn’t have to accommodate the disabled individual. An example is when the accommodation is not economically feasible.

What is a reasonable accommodation under the ADA?

Under the ADA, a “reasonable accommodation” may include: (1) making existing facilities used by employees readily accessible to and usable by individuals with disabilities or (2) 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. 42 U.S.C. §12111(9).

A “reasonable accommodation” does not require the employer to (1) change or eliminate any essential function of employment, (2) shift any essential function of employment to other employees, (3) create a new position for you, (4) promote you or (5) reduce productivity standards.

The ADA does require the Employer to accommodate a disabled individual but not to the point where the Employer would have to create a new position for such individual. However, if your request is reasonable and your Employer fails to accommodate your request, you may be able to bring a discrimination lawsuit.

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