Section 1630.5 Limiting, Segregating and Classifying

This provision and the several provisions that follow describe

various specific forms of discrimination that are included within

the general prohibition of section 1630.4. Covered entities are

prohibited from restricting the employment opportunities of

qualified individuals with disabilities on the basis of

stereotypes and myths about the individual's disability. Rather,

the capabilities of qualified individuals with disabilities must

be determined on an individualized, case by case basis. Covered

entities are also prohibited from segregating qualified employees

with disabilities into separate work areas or into separate lines

of advancement.

Thus, for example, it would be a violation of this part for an

employer to limit the duties of an employee with a disability

based on a presumption of what is best for an individual with

such a disability, or on a presumption about the abilities of an

individual with such a disability. It would be a violation of

this part for an employer to adopt a separate track of job

promotion or progression for employees with disabilities based on

a presumption that employees with disabilities are uninterested

in, or incapable of, performing particular jobs. Similarly, it

would be a violation for an employer to assign or reassign (as a

reasonable accommodation) employees with disabilities to one

particular office or installation, or to require that employees

with disabilities only use particular employer provided non-work

facilities such as segregated break-rooms, lunch rooms, or

lounges. It would also be a violation of this part to deny

employment to an applicant or employee with a disability based on

generalized fears about the safety of an individual with such a

disability, or based on generalized assumptions about the

absenteeism rate of an individual with such a disability.

In addition, it should also be noted that this part is intended

to require that employees with disabilities be accorded equal

access to whatever health insurance coverage the employer

provides to other employees. This part does not, however, affect

pre-existing condition clauses included in health insurance

policies offered by employers. Consequently, employers may

continue to offer policies that contain such clauses, even if

they adversely affect individuals with disabilities, so long as

the clauses are not used as a subterfuge to evade the purposes of

this part.

So, for example, it would be permissible for an employer to offer

an insurance policy that limits coverage for certain procedures

or treatments to a specified number per year. Thus, if a health

insurance plan provided coverage for five blood transfusions a

year to all covered employees, it would not be discriminatory to

offer this plan simply because a hemophiliac employee may require

more than five blood transfusions annually. However, it would

not be permissible to limit or deny the hemophiliac employee

coverage for other procedures, such as heart surgery or the

setting of a broken leg, even though the plan would not have to

provide coverage for the additional blood transfusions that may

be involved in these procedures. Likewise, limits may be placed

on reimbursements for certain procedures or on the types of drugs

or procedures covered (e.g. limits on the number of permitted

X-rays or non-coverage of experimental drugs or procedures), but

that limitation must be applied equally to individuals with and

without disabilities. See Senate Report at 28-29; House Labor

Report at 58-59; House Judiciary Report at 36.

Leave policies or benefit plans that are uniformly applied do not

violate this part simply because they do not address the special

needs of every individual with a disability. Thus, for example,

an employer that reduces the number of paid sick leave days that

it will provide to all employees, or reduces the amount of

medical insurance coverage that it will provide to all employees,

is not in violation of this part, even if the benefits reduction

has an impact on employees with disabilities in need of greater

sick leave and medical coverage. Benefits reductions adopted for

discriminatory reasons are in violation of this part. See

Alexander v. Choate, 469 U.S. 287 (1985). See Senate Report at

85; House Labor Report at 137. (See also, the discussion at

section 1630.16(f) Health Insurance, Life Insurance, and Other

Benefit Plans).

Section 1630.6 Contractual or Other Arrangements

An employer or other covered entity may not do through a

contractual or other relationship what it is prohibited from

doing directly. This provision does not affect the determination

of whether or not one is a "covered entity" or "employer" as

defined in section 1630.2.

This provision only applies to situations where an employer or

other covered entity has entered into a contractual relationship

that has the effect of discriminating against its own employees

or applicants with disabilities. Accordingly, it would be a

violation for an employer to participate in a contractual

relationship that results in discrimination against the

employer's employees with disabilities in hiring, training,

promotion, or in any other aspect of the employment relationship.

This provision applies whether or not the employer or other

covered entity intended for the contractual relationship to have

the discriminatory effect.

Part 1630 notes that this provision applies to parties on either

side of the contractual or other relationship. This is intended

to highlight that an employer whose employees provide services to

others, like an employer whose employees receive services, must

ensure that those employees are not discriminated against on the

basis of disability. For example, a copier company whose service

representative is a dwarf could be required to provide a

stepstool, as a reasonable accommodation, to enable him to

perform the necessary repairs. However, the employer would not be

required, as a reasonable accommodation, to make structural

changes to its customer's inaccessible premises.

The existence of the contractual relationship adds no new

obligations under part 1630. The employer, therefore, is not

liable through the contractual arrangement for any discrimination

by the contractor against the contractor's own employees or

applicants, although the contractor, as an employer, may be

liable for such discrimination.

An employer or other covered entity, on the other hand, cannot

evade the obligations imposed by this part by engaging in a

contractual or other relationship. For example, an employer

cannot avoid its responsibility to make reasonable accommodation

subject to the undue hardship limitation through a contractual

arrangement. See Conference Report at 59; House Labor Report at

59-61; House Judiciary Report at 36-37.

To illustrate, assume that an employer is seeking to contract

with a company to provide training for its employees. Any

responsibilities of reasonable accommodation applicable to the

employer in providing the training remain with that employer even

if it contracts with another company for this service. Thus, if

the training company were planning to conduct the training at an

inaccessible location, thereby making it impossible for an

employee who uses a wheelchair to attend, the employer would have

a duty to make reasonable accommodation unless to do so would

impose an undue hardship. Under these circumstances, appropriate

accommodations might include (1) having the training company

identify accessible training sites and relocate the training

program; (2) having the training company make the training site

accessible; (3) directly making the training site accessible or

providing the training company with the means by which to make

the site accessible; (4) identifying and contracting with another

training company that uses accessible sites; or (5) any other

accommodation that would result in making the training available

to the employee.

As another illustration, assume that instead of contracting with

a training company, the employer contracts with a hotel to host a

conference for its employees. The employer will have a duty to

ascertain and ensure the accessibility of the hotel and its

conference facilities. To fulfill this obligation the employer

could, for example, inspect the hotel first-hand or ask a local

disability group to inspect the hotel. Alternatively, the

employer could ensure that the contract with the hotel specifies

it will provide accessible guest rooms for those who need them

and that all rooms to be used for the conference, including

exhibit and meeting rooms, are accessible. If the hotel breaches

this accessibility provision, the hotel may be liable to the

employer, under a non-ADA breach of contract theory, for the cost

of any accommodation needed to provide access to the hotel and

conference, and for any other costs accrued by the employer. (In

addition, the hotel may also be independently liable under title

III of the ADA). However, this would not relieve the employer of

its responsibility under this part nor shield it from charges of

discrimination by its own employees. See House Labor Report at

40; House Judiciary Report at 37.

Section 1630.8 Relationship or Association with an Individual with

a Disability

This provision is intended to protect any qualified individual,

whether or not that individual has a disability, from

discrimination because that person is known to have an

association or relationship with an individual who has a known

disability. This protection is not limited to those who have a

familial relationship with an individual with a disability.

To illustrate the scope of this provision, assume that a

qualified applicant without a disability applies for a job and

discloses to the employer that his or her spouse has a

disability. The employer thereupon declines to hire the applicant

because the employer believes that the applicant would have to

miss work or frequently leave work early in order to care for the

spouse. Such a refusal to hire would be prohibited by this

provision. Similarly, this provision would prohibit an employer

from discharging an employee because the employee does volunteer

work with people who have AIDS, and the employer fears that the

employee may contract the disease.

This provision also applies to other benefits and privileges of

employment. For example, an employer that provides health

insurance benefits to its employees for their dependents may not

reduce the level of those benefits to an employee simply because

that employee has a dependent with a disability. This is true

even if the provision of such benefits would result in increased

health insurance costs for the employer.

It should be noted, however, that an employer need not provide

the applicant or employee without a disability with a reasonable

accommodation because that duty only applies to qualified

applicants or employees with disabilities. Thus, for example, an

employee would not be entitled to a modified work schedule as an

accommodation to enable the employee to care for a spouse with a

disability. See Senate Report at 30; House Labor Report at 61-62;

House Judiciary Report at 38-39.

Section 1630.9 Not Making Reasonable Accommodation

The obligation to make reasonable accommodation is a form of non-

discrimination. It applies to all employment decisions and to the

job application process. This obligation does not extend to the

provision of adjustments or modifications that are primarily for

the personal benefit of the individual with a disability. Thus, if

an adjustment or modification is job-related, e.g., specifically

assists the individual in performing the duties of a particular

job, it will be considered a type of reasonable accommodation. On

the other hand, if an adjustment or modification assists the

individual throughout his or her daily activities, on and off the

job, it will be considered a personal item that the employer is not

required to provide. Accordingly, an employer would generally not

be required to provide an employee with a disability with a

prosthetic limb, wheelchair, or eyeglasses. Nor would an employer

have to provide as an accommodation any amenity or convenience that

is not job-related, such as a private hot plate, hot pot or

refrigerator that is not provided to employees without

disabilities. See Senate Report at 31; House Labor Report at 62.

It should be noted, however, that the provision of such items may

be required as a reasonable accommodation where such items are

specifically designed or required to meet job-related rather than

personal needs. An employer, for example, may have to provide an

individual with a disabling visual impairment with eyeglasses

specifically designed to enable the individual to use the office

computer monitors, but that are not otherwise needed by the

individual outside of the office.

The term "supported employment," which has been applied to a wide

variety of programs to assist individuals with severe

disabilities in both competitive and non-competitive employment,

is not synonymous with reasonable accommodation. Examples of

supported employment include modified training materials,

restructuring essential functions to enable an individual to

perform a job, or hiring an outside professional ("job coach") to

assist in job training. Whether a particular form of assistance

would be required as a reasonable accommodation must be

determined on an individualized, case by case basis without

regard to whether that assistance is referred to as "supported

employment." For example, an employer, under certain

circumstances, may be required to provide modified training

materials or a temporary "job coach" to assist in the training of

a qualified individual with a disability as a reasonable

accommodation. However, an employer would not be required to

restructure the essential functions of a position to fit the

skills of an individual with a disability who is not otherwise

qualified to perform the position, as is done in certain

supported employment programs. See 34 CFR part 363. It should be

noted that it would not be a violation of this part for an

employer to provide any of these personal modifications or

adjustments, or to engage in supported employment or similar

rehabilitative programs.

The obligation to make reasonable accommodation applies to all

services and programs provided in connection with employment, and

to all non-work facilities provided or maintained by an employer

for use by its employees. Accordingly, the obligation to

accommodate is applicable to employer sponsored placement or

counseling services, and to employer provided cafeterias,

lounges, gymnasiums, auditoriums, transportation and the like.

The reasonable accommodation requirement is best understood as a

means by which barriers to the equal employment opportunity of an

individual with a disability are removed or alleviated. These

barriers may, for example, be physical or structural obstacles

that inhibit or prevent the access of an individual with a

disability to job sites, facilities or equipment. Or they may be

rigid work schedules that permit no flexibility as to when work

is performed or when breaks may be taken, or inflexible job

procedures that unduly limit the modes of communication that are

used on the job, or the way in which particular tasks are

accomplished.

The term "otherwise qualified" is intended to make clear that the

obligation to make reasonable accommodation is owed only to an

individual with a disability who is qualified within the meaning

of section 1630.2(m) in that he or she satisfies all the skill,

experience, education and other job-related selection criteria.

An individual with a disability is "otherwise qualified," in

other words, if he or she is qualified for a job, except that,

because of the disability, he or she needs a reasonable

accommodation to be able to perform the job's essential

functions.

For example, if a law firm requires that all incoming lawyers

have graduated from an accredited law school and have passed the

bar examination, the law firm need not provide an accommodation

to an individual with a visual impairment who has not met these

selection criteria. That individual is not entitled to a

reasonable accommodation because the individual is not "otherwise

qualified" for the position.

On the other hand, if the individual has graduated from an

accredited law school and passed the bar examination, the

individual would be "otherwise qualified." The law firm would

thus be required to provide a reasonable accommodation, such as a

machine that magnifies print, to enable the individual to perform

the essential functions of the attorney position, unless the

necessary accommodation would impose an undue hardship on the law

firm. See Senate Report at 33-34; House Labor Report at 64-65.

The reasonable accommodation that is required by this part should

provide the qualified individual with a disability with an equal

employment opportunity. Equal employment opportunity means an

opportunity to attain the same level of performance, or to enjoy

the same level of benefits and privileges of employment as are

available to the average similarly situated employee without a

disability. Thus, for example, an accommodation made to assist an

employee with a disability in the performance of his or her job

must be adequate to enable the individual to perform the

essential functions of the relevant position. The accommodation,

however, does not have to be the "best" accommodation possible,

so long as it is sufficient to meet the job-related needs of the

individual being accommodated. Accordingly, an employer would

not have to provide an employee disabled by a back impairment

with a state-of- the art mechanical lifting device if it provided

the employee with a less expensive or more readily available

device that enabled the employee to perform the essential

functions of the job. See Senate Report at 35; House Labor Report

at 66; see also Carter v. Bennett, 840 F.2d 63 (D.C. Cir. 1988).

Employers are obligated to make reasonable accommodation only to

the physical or mental limitations resulting from the disability

of a qualified individual with a disability that are known to the

employer. Thus, an employer would not be expected to accommodate

disabilities of which it is unaware. If an employee with a known

disability is having difficulty performing his or her job, an

employer may inquire whether the employee is in need of a

reasonable accommodation. In general, however, it is the

responsibility of the individual with a disability to inform the

employer that an accommodation is needed. When the need for an

accommodation is not obvious, an employer, before providing a

reasonable accommodation, may require that the individual with a

disability provide documentation of the need for accommodation.

See Senate Report at 34; House Labor Report at 65.

Process of Determining the Appropriate Reasonable Accommodation

Once a qualified individual with a disability has requested

provision of a reasonable accommodation, the employer must make a

reasonable effort to determine the appropriate accommodation. The

appropriate reasonable accommodation is best determined through a

flexible, interactive process that involves both the employer and

the qualified individual with a disability. Although this

process is described below in terms of accommodations that enable

the individual with a disability to perform the essential

functions of the position held or desired, it is equally

applicable to accommodations involving the job application

process, and to accommodations that enable the individual with a

disability to enjoy equal benefits and privileges of employment.

See Senate Report at 34-35; House Labor Report at 65-67.

When a qualified individual with a disability has requested a

reasonable accommodation to assist in the performance of a job,

the employer, using a problem solving approach, should:

(1) analyze the particular job involved and determine its

purpose and essential functions;

(2) consult with the individual with a disability to

ascertain the precise job-related limitations imposed by the

individual's disability and how those limitations could be

overcome with a reasonable accommodation;

(3) in consultation with the individual to be accommodated,

identify potential accommodations and assess the effectiveness

each would have in enabling the individual to perform the

essential functions of the position; and

(4) consider the preference of the individual to be

accommodated and select and implement the accommodation that

is most appropriate for both the employee and the employer.

In many instances, the appropriate reasonable accommodation may

be so obvious to either or both the employer and the qualified

individual with a disability that it may not be necessary to

proceed in this step-by-step fashion. For example, if an

employee who uses a wheelchair requests that his or her desk be

placed on blocks to elevate the desktop above the arms of the

wheelchair and the employer complies, an appropriate

accommodation has been requested, identified, and provided

without either the employee or employer being aware of having

engaged in any sort of "reasonable accommodation process."

However, in some instances neither the individual requesting the

accommodation nor the employer can readily identify the

appropriate accommodation. For example, the individual needing

the accommodation may not know enough about the equipment used by

the employer or the exact nature of the work site to suggest an

appropriate accommodation. Likewise, the employer may not know

enough about the individual's disability or the limitations that

disability would impose on the performance of the job to suggest

an appropriate accommodation. Under such circumstances, it may be

necessary for the employer to initiate a more defined problem

solving process, such as the step-by-step process described

above, as part of its reasonable effort to identify the

appropriate reasonable accommodation.

This process requires the individual assessment of both the

particular job at issue, and the specific physical or mental

limitations of the particular individual in need of reasonable

accommodation. With regard to assessment of the job, "individual

assessment" means analyzing the actual job duties and determining

the true purpose or object of the job. Such an assessment is

necessary to ascertain which job functions are the essential

functions that an accommodation must enable an individual with a

disability to perform.

After assessing the relevant job, the employer, in consultation

with the individual requesting the accommodation, should make an

assessment of the specific limitations imposed by the disability

on the individual's performance of the job's essential functions.

This assessment will make it possible to ascertain the precise

barrier to the employment opportunity which, in turn, will make

it possible to determine the accommodation(s) that could

alleviate or remove that barrier.

If consultation with the individual in need of the accommodation

still does not reveal potential appropriate accommodations, then

the employer, as part of this process, may find that technical

assistance is helpful in determining how to accommodate the

particular individual in the specific situation. Such assistance

could be sought from the Commission, from state or local

rehabilitation agencies, or from disability constituent

organizations. It should be noted, however, that, as provided in

section 1630.9(c) of this part, the failure to obtain or receive

technical assistance from the federal agencies that administer

the ADA will not excuse the employer from its reasonable

accommodation obligation.

Once potential accommodations have been identified, the employer

should assess the effectiveness of each potential accommodation

in assisting the individual in need of the accommodation in the

performance of the essential functions of the position. If more

than one of these accommodations will enable the individual to

perform the essential functions or if the individual would prefer

to provide his or her own accommodation, the preference of the

individual with a disability should be given primary

consideration. However, the employer providing the accommodation

has the ultimate discretion to choose between effective

accommodations, and may choose the less expensive accommodation

or the accommodation that is easier for it to provide. It should

also be noted that the individual's willingness to provide his or

her own accommodation does not relieve the employer of the duty

to provide the accommodation should the individual for any reason

be unable or unwilling to continue to provide the accommodation.

Reasonable Accommodation Process Illustrated

The following example illustrates the informal reasonable

accommodation process. Suppose a Sack Handler position requires

that the employee pick up fifty pound sacks and carry them from

the company loading dock to the storage room, and that a sack

handler who is disabled by a back impairment requests a

reasonable accommodation. Upon receiving the request, the

employer analyzes the Sack Handler job and determines that the

essential function and purpose of the job is not the requirement

that the job holder physically lift and carry the sacks, but the

requirement that the job holder cause the sack to move from the

loading dock to the storage room.

The employer then meets with the sack handler to ascertain

precisely the barrier posed by the individual's specific

disability to the performance of the job's essential function of

relocating the sacks. At this meeting the employer learns that

the individual can, in fact, lift the sacks to waist level, but

is prevented by his or her disability from carrying the sacks

from the loading dock to the storage room. The employer and the

individual agree that any of a number of potential

accommodations, such as the provision of a dolly, hand truck, or

cart, could enable the individual to transport the sacks that he

or she has lifted.

Upon further consideration, however, it is determined that the

provision of a cart is not a feasible effective option. No carts

are currently available at the company, and those that can be

purchased by the company are the wrong shape to hold many of the

bulky and irregularly shaped sacks that must be moved. Both the

dolly and the hand truck, on the other hand, appear to be

effective options. Both are readily available to the company,

and either will enable the individual to relocate the sacks that

he or she has lifted. The sack handler indicates his or her

preference for the dolly. In consideration of this expressed

preference, and because the employer feels that the dolly will

allow the individual to move more sacks at a time and so be more

efficient than would a hand truck, the employer ultimately

provides the sack handler with a dolly in fulfillment of the

obligation to make reasonable accommodation.

Section 1630.9(b).

This provision states that an employer or other covered entity

cannot prefer or select a qualified individual without a

disability over an equally qualified individual with a disability

merely because the individual with a disability will require a

reasonable accommodation. In other words, an individual's need

for an accommodation cannot enter into the employer's or other

covered entity's decision regarding hiring, discharge, promotion,

or other similar employment decisions, unless the accommodation

would impose an undue hardship on the employer. See House Labor

Report at 70.