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Discuss the ADA laws, who is covered, how can citizens qualify and what do employers need to do to respond to these laws.
Americans with Disabilities Act (ADA)-Simply Stated
The ADA prohibits any type of employment related discrimination on the basis of disability. When the ADA was first implemented on July 6, 1, only employers with 5 or more employees were bound to its laws and regulations. The law was amended to include compliance of those employers with 15 or more employees effective July 6, 14. The ADA is administered by the Equal Employment Opportunity Commission (EEOC) (Fisher, 1). An “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person”. The only exceptions to this law are the federal government, a corporation wholly owned by the federal government, Indian tribes, and private membership clubs that meet certain taxation requirements (Peteros, 10).
Who is Covered?….Persons with a Disability. What is a Disability?
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The ADA protects people with a disability from discrimination in employment. In order for the ADA to cover a disabled person, the person must be qualified for the position in which the are applying/being considered for. Disability is defined as
1. a physical or mental impairment that substantially limits one or more of the major life activities of an individual,
. a record of such impairment, or
. being regarded as having such an impairment (Fisher, 14).
Since the inception of ADA, there have been many judicial and congressional rulings that have further defined “physical and mental impairments. Below is a list of examples of ADA protected disabilities.
• Emotional/mental illness
• Mental retardation
• Learning disabilities
• AIDS and HIV-positive
• Physiological disorders
• Cosmetic and anatomical loss affecting one or more of several body systems (Fisher, 14).
• Drug users who have successfully rehabilitated
• Drug users who are not currently using drugs, but are participating in a rehabilitation program (Peteros, 11).
Although obesity is a protected class in the state of Michigan under Title VII, ADA has not made any formal amendments to define this as a disability, to date (Williams).
The employee/applicant must be able to meet the qualification standards which include training, education, and skills needed to perform the essential functions of the job. The employee/applicant must also be able to perform the essential functions of the job with or without reasonable accommodations. “Reasonable accommodations” are defined later in this discussion.
Employer Responsibilities
What is a “reasonable accommodation”?
Employers must reasonably accommodate applicants/employees with known disabilities. The applicant/employee is responsible for letting the employer know of a disability and accommodations that they need assistance with. In any case, the employer is only responsible for making reasonable accommodations related to job-specific activities. These accommodations cannot place “undue hardship” on the employer. Some examples of reasonable accommodations are as follows
• ”Making existing workplace facilities readily accessible to and usable by individuals with disabilities;
• Modifying or adjusting the application process;
• Restructuring jobs in such particulars as when or how essential functions are performed;
• Allowing part-time or modified work schedules or reassignment to a vacant position within a reasonable amount of time;
• Acquiring or modifying equipment or devices;
• Adjusting or examinations, training materials or policies; and
• Providing qualified readers, interpreters or personal assistants to help with specific duties (Peteros, 15).
What is “undue hardship”? An accommodation is not considered “reasonable” if it puts the employer/company into a situation that would be “extremely costly”, or “would disrupt the efficient, safe operation of the company” (Fisher, 16). Below is a list of factors that are taken into consideration when deciding if an accommodation is reasonable or places undue hardship on the employer
• Can the job be changed to accommodate an applicant/employee with a certain disability?
• Company size
• Union regulations that prevent work-schedule or work-rule changes
• Cost of implementation of the accommodation to the employer (Fisher, 16).
Good Pre-employment Practices
Pre-employment practices start right from the beginning with the employer’s recruitment efforts. It is illegal to discourage disabled applicants through advertisements and publications of job opportunities. Employers must also make reasonable accommodations for applicants to complete the application/interview process. All qualified applicants must be given equal consideration regardless of disability. Employers are prohibited from soliciting information related to disability in either an interview or application format. Only questions that are job-related may be incorporated into the selection process. Some prohibited questions include
• “Do you have any disabilities?”
• “Have you been treated for any of the following diseases or conditions?” (Peteros, 11).
• “How many days were you absent from work due to illness last year?”
• “Have you ever participated in a drug or alcohol rehabilitation program?” (www.reinhartlaw.com)
It is also a good practice to have concise job descriptions for all jobs within your company. Requirements on job descriptions must truly be job related. The job description can be a very helpful tool when trying to decide on accommodations for potential employees.
Recordkeeping Requirements
Private employers are required by ADA to keep employment records for one year of making the record or personnel decision, whichever is later. State and local employers are required to keep these records for three years (Peteros, 14).
Employers (other than the federal government) with more than 100 employees are also required to file an EEO-1 or EEO-4 report on an annual basis.
Confidentiality Requirements
It is very important that employers maintain the confidentiality of applicants/employees with disabilities. The ADA spells out certain examples of when disclosure of medical/disability information is appropriate. These situations are as follows
• “Supervisors and managers may be informed for the purpose and only to the extent necessary to communicate restrictions on the work or duties of the employees or accommodations required;
• First aid and safety personnel may be informed for the purpose and only to the extent they need to know if the disability might require emergency treatment; and
• Government officials investigating the employer’s compliance with the ADA may be informed” (Peteros, 14).
Posting Requirements
Employers are required to post a notice to all employees in a “conspicuous” place. These notices must be approved by the EEOC. Posting requirements are available by contacting your local branch of the EEOC and through Human Resources/Personnel supply vendors.
Business Example of the ADA
My cousin (Tony) works at the lumber and hardware store owned by my family. The company does meet the requirement of being held to the standard of the ADA due to the number of employees. Tony began employment with the company in his early twenties. At the time of employment, his position was working out in the yard. Job duties included loading trucks with lumber, using saws to trim/rip lumber, and driving a hi-low. During his employment he began to have severe seizures, sometimes at work or on lunch periods. Since the seizures happened while at work, the company was put on notice that Tony had a disability. The company then made a reasonable accommodation to move Tony into an inside sales position to protect the safety of himself, customers, and other employees. Tony was no longer able to perform the essential duties of working in the yard. Technically, Tony’s employment probably have been terminated since he was no longer able to safely perform the essential duties of his job, but the company took the most ethical approach and reassigned him to a position where he could safely work.
Class Question
Explain the steps and process necessary for planning to hire and hiring an open position in a company. What considerations are necessary to comply with EEO laws? What are some job analysis issues, decision-making issues, and the process for assessing candidates?
Steps for Planning to Hire/Hiring an Open Position
You are the Human Resources Manager and your Controller approaches you about adding a new position of Accounting Clerk into the Accounting Department. He tells you that he really needs the person to start by the end of the week, but you explain to him that there is a lot of work and preparation that goes into developing/hiring a new position.
Below is an outline of steps needed to begin the hiring process
• Complete job analysis
• Create job descriptions
• Determine budgetary constraints
• Decide on interview process
• Decide on how to recruit applicants
• Process applicants
Job Analysis
Job analysis is a useful tool that can help in the scope of recruitment, EEO considerations, job training, determining pay raises, job classification, and job designing (Fisher, 147). For the most part, creating a job analysis is the data collection step in making a job description. Once the information is collected about a particular job, it can usually be easily transformed into a job description. Some of the data that is collected during this process includes information relevant to job responsibility, duties/roles, and psychomotor/physical/cognitive/situational abilities. The best source of data for job analysis is observing/interviewing a current employee in the job. Other sources for job analysis information would be job descriptions, supervisors, and films of employees working. Another useful source for job analysis information is the Department of Labor’s ONET website. This website contains a wealth of information helpful in planning job analysis, descriptions, and compensation levels. It is important to have accurate job analysis so that the organization can reduce its financial liabilities through paying not salaries that are too high, reducing poor hiring decisions (increase in operational expenses through increased recruitment/training), and reducing litigation costs brought on by ADA and EEO implications. (Fisher, 14-6).
Job Descriptions
Preparing a job description can be relatively straightforward if the job analysis step has been completed. A job description is a brief statement that explains what the job entails. Important areas that should be addressed in a job description include job summary, job title, reporting relationships, working environment, and knowledge/skills/abilities. Most job descriptions are narrative in form. A job candidate should be able to read a job description and get a basic concept of the job responsibilities. It is important to remember that when preparing a job description to ensure that all contents are bona fide occupational qualifications (BFOQ). An example discussed in class would be not to require a college degree if in reality, a person who has a lesser level of education can complete the job.
Budgetary Constraints
Budgetary constraints were not discussed in depth in class or in the readings. But, from my professional experience, it is always important to complete a cost analysis before recruiting for any position. First, you must estimate how much this person’s annual salary will effect your bottom line. A wage scale needs to be developed. This can be developed using past information, comparing similar positions, researching wage information (through published surveys contained in several media sources), and surveying competitors in the market. Next, you must estimate recruitment and training costs. Will the new hire be offered a sign-on bonus or will there be a referral bonus offered to the referring employee?
Reviewing the constraints of the budget is very important in the planning to hire stages. Leaving this step out could later lead to layoffs or other cost-reduction strategies.
Planning the Interview Process
The interviewing process could contain several steps. Examples of processes used by organizations include completing an application, pre-screening interview, job-related tests (integrity, personality, work sample, and situational judgement) and final/group/panel interviewing (Fisher, -).
In a class assignment we were asked to develop an interview for a specific job. From my professional experience, I feel it is important that interviews are structured (pre-planned) and consistent from one applicant to the next. In a cone-structured interview, the interviewer asks general questions on a topic to the applicant and then follows their responses by asking more specific/probing questions in an attempt to get the most honest and specific answer from the applicant.
Recruitment Methods
The next step in the planning to hire process is deciding on the most effective way of recruiting applicants. Typical recruitment methods include internal postings, word of mouth referrals, newspaper ads, direct mailings, Internet advertising (to include company website postings), and ads in professional journals. Studies show that current employees recruit the most successful employees.
Processing Applicants
This step is typically started once the applicants have completed the interviewing and testing (if applicable) processes. Processing of applicants can include reference checking, drug screening, background/credit checks, and physical examinations. Once these steps are completed to the satisfaction of the organization, a job offer can be extended to the applicant. There are several implications involved with the processing of an applicant. For instance, if negative information is received from a background or credit check and that information is the reason that an employment offer was not extended to the applicant an adverse action report must be provided to the applicant under the laws of the Fair Credit Reporting Act.
EEO Considerations
Title VII of the Civil Rights Act of 164 (amended in 17) prohibits employment discrimination based on race, color, religion, sex, and national origin (Fisher, 184). Title VII “applies to those private employers employing 15 or more employees on each working day of twenty or more calendar weeks in the current or preceding year” (Fisher, 184). It is the responsibility of managers and Human Resources Professionals to prevent discrimination in hiring. During the interview/application process be very careful to avoid asking questions that could gather information regarding an applicants race, color, religion, sex, and national origin. It is also important to review the application form to check for discriminatory questions.
Proving Illegal Discrimination-as related to the hiring process
The applicant (plaintiff) is required to provided evidence that will establish the prima facie case in EEO cases. Prima facie means “on the face of it”, or “at first glance”. The plaintiff must provide the court with evidence that s/he was a victim of discriminatory hiring practices. The prima facie case for discriminatory hiring includes the following steps
• “He was a member of a protected class.
• He applied for a job for which he was qualified.
• He was rejected.
• The employer continued to seek applicants for the job” (Fisher, 16).
Adverse impact is also another form of illegal discrimination in the hiring process. The exception to adverse impact cases is that the plaintiff is not required to prove a prima facie case. In the Supreme Court case of Griggs v. Duke Power Company, Griggs was denied a job opportunity because he did not have a high school education. Griggs claimed that the real reason for not getting the position was because he was a minority. The court upheld that Duke Power Company was in essence discriminating against blacks because a high percentage of blacks did not have high school diplomas. The four-fifths rule is used to determine if the impact is enough to be considered discriminatory. “The rule states that if the minorities hired-minorities applicants ratio is less than four-fifths (80 percent) of the majority members hired-majority applicants ratio, then a prima facie case of discrimination exists” (Fisher, 18).
Rebutting a Prima Facie Case
A company can rebut the prima facie case of discrimination in hiring by using the defenses of job relatedness, bona fide occupational qualifications (BFOQ), and business necessity.
Job relatedness can be used as a defense when a practice is apparently neutral adversely impacts a minority group. For instance, a job requirement of height that all applicants must be 6 feet tall would adversely impact women, but as long as the company could justify the 6 feet tall requirement as being job related, the company would most likely have a defense to the prima facie case.
An example of an allowable BFOQ would be to only recruit and hire females to work as servers at Hooters. This is an actual case that was upheld by the Supreme Court. Hooters markets to the male customer and was able to prove that hiring male servers would negatively impact their market and public image.
The business necessity defense allows employers to justify their adverse impact if the actions are essential to the efficient and safe operation of the company (Fisher, 0).
Decision-Making Issues
Before a decision regarding employment is made, the Human Resources Professional usually gathers information from several sources. It is important that each of the sources is both reliable and valid. The strategy for making the final decision on hiring comes from information regarding the type of job, number of applicants and job openings, and costs of testing (Fisher, 0). The Human Resources professional along with the hiring authorities must ensure that the selection process is going to statistically be effective before implementing the process. From my business research, most Human Resources professionals do not deal with the statistical operations as described in the text, but rather use HRIS systems to assist in the statistical decisions.
Business Example of the Hiring Process
As a Human Resources Manager at a local Detroit hospital, I spend a great percentage of my day recruiting nurses and other clinical personnel. I would like to describe the process that is used when we begin the hiring process. Since recruiting nurses is an on-going effort due to the current market, a job analysis and description are already in place.
First, we recruit applicants though advertising. Media sources that are used by my company are the Detroit News, Internet ads, and our company’s website. In April, we will be having an Open House so that applicants can come to our site and see our facility, complete applications, and interview. Applicants are also recruited through walk-ins, word-of-mouth, and employee referrals.
Next, the applicant completes an application and meets with me to complete the pre-screening interview. If the pre-screening interview goes well, the applicant will be given a medication and skills inventory test directly related to nursing positions.
Upon successful completion of the medication and skills inventory test, the applicant will meet with the Unit Manager for a second (usually final) interview. If the manager feels that the applicant would be an asset to our organization, the employment processing begins.
Employment processing includes drug screening, background testing, licensure verification, and reference checking. If all of these requirements are met, the applicant will normally be extended an offer of employment.
References Cited
Fisher, Cynthia D., Lyle Schoenfeldt, and James Shaw. Human Resource Management
Fifth Edition. New YorkHoughton Mifflin Company, 00.
Peteros, Karen H. “The Americans with Disabilities Act An Employer’s Guide.”
Magazine title unknown (class handout) p. 10-6.
“Pre-Employment Inquiries Under the ADA 0 Questions to Test Your ‘ADA IQ’ “.
http//www.reinhartlaw.com/Articles/lab/adaiq.htm. (class handout)
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