EEOC Discusses How Not Being Able to Graduate from High School Could Be Considered a Disability

Posted by Anthony E. Cooch Jr. on January 03, 2013

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with disabilities.  The act was amended by the ADA Amendments Act (ADAAA) of 2008 with final regulations being issued in March 2011.  A significant change in the ADAAA was an expanded definition of “disability.”

For an impairment to be considered a disability under the pre-amended ADA, it had to prevent or severely restrict a person from performing activities central to most people’s daily lives.  With the enactment of the ADAAA and its subsequent regulations, it is now much easier for an impairment to be considered a disability.  To qualify as a disability, the impairment is only required to substantially limit one major life activity with life activities including reading, concentrating, communicating, working and thinking.

GraduateHatIn November 2011, the Equal Employment Opportunity Commission (EEOC) issued an informal discussion letter regarding their interpretation of disability and employer requirements under the ADA. The letter addressed the question of whether an employer could violate the ADA by requiring that employees possess a high school diploma to qualify for a job when the applicant was unable to earn a high school diploma due to a learning disability. The EEOC's answer was yes.

Under the ADAAA regulations, qualification standards, employment testing and other selection criteria violate the ADA if two things are true:

  1. An employer requires that the standards or testing be met in order to qualify for a job, AND
  2. The standards screen out individuals with a disability

The exception to the rule is that if an employer can show that the standards are job related and consistent with a business necessity it will not be considered as violating the ADA.

In the case of a high school diploma requirement, the EEOC is of the opinion that an ADA violation could occur when an employer requires that a job candidate possess a high school diploma if:

  1. An employer requires a high school diploma for a job;
  2. An individual who has a learning disability that prevents him or her from graduating from high school is screened out because he or she does not have a high school diploma; AND
  3. An individual’s learning disability is considered a “disability” for ADA purposes

The ADA would allow the high school diploma requirement to stand as long as it is related to the job and consistent with business necessity.  However, even this exception is overridden if the essential functions of the job could be performed easily by someone without a high school diploma or the candidate shows he can perform based on prior job performance of demonstration to the potential employer.  Essentially, the EEOC interpretation of the ADA translates as follows:  if certain qualifications or tests are required to obtain a job, to withstand challenge they must be absolutely necessary for the employee to be able to perform the job. 

This “all inclusive” definition of disability provides a great deal of uncertainty to employers.  With the expansive definition of what is considered a disability potentially attacking job requirements that were previously acceptable, employers now face having to review and redraft job descriptions and position requirements to avoid or defend potential challenges. 

Practice Pointers

  • Job qualifications, requirements and testing should be related to the job the candidate is expected to perform and consistent with the needs of the business.  In other words, if you need the skill or qualification to do the job, leave it in and if not, consider removing it. 
  • If a candidate or employee discloses a disability, have steps in place to handle the situation.  Disclosure of a disability does not always automatically require an accommodation.  It does start a due diligence requirement
  • Train your HR Staff so that if an applicant discloses he or she has a disability your staff knows how to handle the situation.  

The Expanded Definition of Disability Under the ADAAA

Posted by Anthony E. Cooch Jr. on December 26, 2012

January 2013 will mark the two-year anniversary the final regulations to the Americans with Disabilities Act Amendments Act or the ADAAA took effect.  As we move into the third year of these new “employee friendly” regulations, it would serve to take a moment to review the prior and current state of the law. 

The Americans with Disabilities Act (ADA) 

Handicap Sign.JPGIn July 1990, the Americans with Disabilities Act became law.  The purpose of the ADA is to provide for the elimination of discrimination against individuals with disabilities.  Disputes under the original ADA focused on the definition of disability.  Impairments such as mental illness or mental disability were often disputed with some level of success.  Interpretation centered on whether an individual was disabled rather than the accommodation an employer could provide to assist that individual in performing his or her job.

The ADA Amendments Act (ADAAA)

In September 2008, the ADAAA was signed into law.  Final regulations became effective in March 2011.  Under the ADAAA, the focus shifted from a determination of whether an individual was disabled to a determination of the accommodation that could be provided to the disabled individual.    

The ADAAA defines a disability as an impairment that substantially limits one “major life activity.”  The original ADA regulations contained a list of nine major life activities that were considered centrally important to most people’s daily lives.  The ADAAA final regulations greatly expanded that definition.  Under the final regulations, the list was expanded to include 19 activities.  Now, limitations in activities such as working, thinking, communicating, learning and concentrating are considered major life activities under the ADAAA and result in an employee being classified as disabled when impaired in any one of those activities.

In addition to the list of major life activities, the ADAAA final regulations also provided a list of specific impairments now presumed to constitute a disability.  Individuals with impairments such as bipolar disorder, post-traumatic stress syndrome and obsessive compulsive disorder are now presumed disabled under the final regulations.  This resulted in a widening of the scope of possible disabilities under the Act.

The final regulations also eliminated consideration of mitigating measures in determining whether a disability exists.  Under the prior ADA, mitigating measures included assistance such as medication and medical equipment.  Determining whether an employee was limited in activities took into account the effect of these assistance measures.  As a result, the positive effects from these aides were a factor in the determination as to whether a person was disabled.  Under the ADAAA final regulations, the effects of the mitigating measures are largely ignored in the consideration.  Now, mitigating measures have been limited to eyeglasses and contact lenses.  Thus, even if an individual is taking medication, an accommodation may still be required. 

The Effect of the ADAAA Final Regulations

The ADAAA final regulations greatly expanded the population of employees and individuals considered disabled.  The focus has now shifted from one of a determination as to whether a person is disabled to a determination of the accommodation that can be provided and whether this imposes an undue hardship on the employer. 

The reasonable accommodation analysis begins after the employer is put on notice that a disability exists.  However, unless the disability and adverse impact on job performance is obvious, the burden of disclosing the disability still remains on the employee.  In other words, if the employee does not disclose, the employer is not under an obligation to consider an accommodation.

Those employers with employees who have identified disabilities are required to consider whether a reasonable accommodation is possible to assist the employee in performing his or her required duties.  Employers are expected to consult with employees regarding (1) potential accommodations, (2) the cost of the accommodations and (3) the employee’s preference.  Unless the accommodation will cause an undue hardship on the employer, employees who have identified disabilities are expected to be accommodated. 

The result of the shift from disability to accommodation is an increase in cost to the employer.  Employers have been placed in a position where the disability element is significantly easier to satisfy.  The expansion provides a significant opportunity for abuse by an employee, potentially causing the employer to expend significant time and resources in consulting with employees regarding accommodations to be made as well as implementation of agreed upon accommodations.

Practice Pointers

With the expansion of the number of employees who may be covered under the ADAAA, documentation plays an even more important role in the employer/employee relationship.  Employers, when presented with a claim of disability from employees, must fully evaluate the employee claim and discuss possible solutions with the impaired employee.  Employers are not required to provide the accommodation demanded by the employee.  Accommodations that place an undue hardship on the employer can be denied.  The optimal solution is for employers to collaborate with the employee to arrive at an accommodation that helps the employee overcome his impairment without resulting in a significant cost to the organization.  Accommodations, meetings and employee progress should be fully documented throughout this process.