Hackers Underworld 2: Forbidden Knowledge/Hackers Underworld 2: Forbidden Knowledge.iso/LEGAL/DISABIL.25

Text File | 1991-08-29 | 34KB | 686 lines

August 1991


             THE AMERICANS WITH DISABILITIES ACT

                             By

                  Jeffrey Higginbotham J.D.
                        Special Agent
                      Legal Instructor
                         FBI Academy
                     Quantico, Virginia


     On July 26, 1990, President Bush signed the Americans With
Disabilities Act (ADA), which poses new challenges for law
enforcement administrators.  The ADA, which was enacted to
eliminate discrimination against individuals with disabilities,
provides protection against employment discrimination to
individuals who are disabled but nonetheless able to work. (1)
Though the ADA is not yet in effect, it will become effective
for employers with at least 25 employees on July 26, 1992, and
for employers with at least 15 employees on July 26, 1994. (2)
Therefore, law enforcement administrators should begin planning
now to ensure compliance with the act when it does become
effective.

     The purpose of this article is to discuss the requirements
of the ADA.  The article also brings to the attention of
administrators certain problem areas involving important policy
decisions that should be considered before the effective date of
the act. (3)

PROHIBITION OF DISCRIMINATION

     The ADA prohibits employers from discriminating "...against
a qualified individual with a disability because of the
disability of such individual 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." (4)  The ADA also prohibits an
employer from conducting a medical examination or making
inquiries of a job applicant concerning the nature or severity
of a disability, unless a conditional offer of employment has
been made. (5)

     However, these general prohibitions of discrimination
against the disabled have two important thresholds that must be
met before a particular person is protected by the ADA.  First,
an applicant or employee must be disabled under the terms of the
act.  Second, in addition to that disability, the person must be
qualified to perform the job, with or without reasonable
accommodation by the employer.  More importantly, the ADA does
not automatically require that disabled persons be hired;
rather, it demands equal employment opportunities, but only if
those persons are capable of performing the essential functions
of the job.

WHAT CONSTITUTES A DISABILITY UNDER THE ADA?

     A person is defined by the ADA as disabled if that person
has a physical or mental impairment that substantially limits
one or more major life activities, has a record of such
impairment, or is regarded  as having such an impairment. (6)
Generally, a person is disabled if that person has any
physiological disorder, condition, disfigurement, anatomical
loss, or mental or psychological disorder that makes that
individual unable to perform such functions as caring for
himself or herself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, or working to the same
extent as an average person. (7)

     However, the exclusion of a person from a particular job or
position because of a physical or mental impairment is not
necessarily illegal discrimination under the ADA if that
individual is not "substantially limited" in a major life
activity.  "[A]n individual is not substantially limited in
working just because he or she is unable to perform a particular
job for one employer, or because he or she is unable to perform
a specialized job or profession requiring extraordinary skill,
prowess or talent." (8)

     In deciding whether a particular person is substantially
limited in the major life activity of working, it is instructive
to examine court decisions interpreting the Federal
Rehabilitation Act of 1973. (9)  Courts have held that the
protections against handicap discrimination in that act do not
"...include working at the specific job of one's choice....Being
declared unsuitable for the particular position of police
officer is not a substantial limitation of a major life
activity." (10) For example, some disabilities may be
disqualifying for some jobs or professions.  However, if these
disabilities do not act as a complete bar to other employment
opportunities, and the person is reasonably able to obtain
employment despite the disability, then under the ADA there is
no substantial limitation on the major life activity of working.

     There are also certain conditions that the ADA expressly
excludes from protection. These include current illegal drug
use, homosexuality, bisexuality, transvestism, exhibitionism,
voyeurism, gender identity disorder, sexual behavior disorder,
compulsive gambling, kleptomania, pyromania, and psychoactive
substance use disorders resulting from current illegal use of
drugs. (11)  Persons with these conditions are excluded from the
act's definition of disabled persons.

     The ADA's exclusion of current illegal drug users as
protected disabled persons raises a potential concern for law
enforcement employers.  While current illegal drug users do not
fall within the definition of a qualified disabled individual,
(12) former drug users are arguably protected by a provision in
the ADA, which provides that a protected disability includes a
person who:

     "...1) has successfully completed a supervised drug
     rehabilitation program and is no longer engaging in the
     illegal use of drugs, or has otherwise been rehabilitated
     successfully and is no longer engaging in such use; [or]

     2) is participating in a supervised rehabilitation program
     and is no longer engaging in such use." (13)

     While there is no caselaw directly on point, it might be
argued that despite the above-cited ADA provision, law
enforcement employment can be denied to a former illegal drug
user because that persons prior conduct evinces unacceptable
character traits, lack of judgment, or failure to abide by the
law, all of which are relevant to the hiring and employment of
police officers. (14)

WHAT CONSTITUTES A "QUALIFIED" INDIVIDUAL UNDER THE ADA?

     The determination that a physical or mental impairment
substantially limits a major life activity and renders a person
disabled under the ADA only completes the first threshold
requirement for protection.  The ADA also requires that disabled
persons be nonetheless qualified to perform the work required.

     The ADA defines a "qualified individual with a disability"
as "...an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires."
(15)  A law enforcement administrator's judgment as to what
functions are essential to a job and any written job description
used during the application or hiring process are considered
under the ADA to be evidence of a position's essential functions.
(16)

     Also relevant to these essential functions determinations
are the amount of time expended during the workday performing
certain functions, the consequences if those tasks are not
performed, and the work experience of current and past
incumbents of the position. (17)  Law enforcement administrators
should carefully identify the essential functions of each
particular job in their department, since the clear import of
the ADA is that discrimination on the basis of a disability that
affects only marginal or peripheral functions and not the
performance of essential functions is illegal. (18)

     Police administrators preparing for the full implementation
of the ADA would be well-served to review each job
classification within their