The Americans With Disabilities Act: What Your Nonprofit Needs to Know
July 26, 2015 marked the 25th anniversary of the signing of a landmark Civil Rights law for people with disabilities—the Americans With Disabilities Act (ADA). The ADA is divided into five titles. Title I deals with employment discrimination against people with disabilities. This includes employment discrimination by nonprofit employers.
As a nonprofit employer, what questions should you consider when it comes to making hiring, firing and other employment decisions?
Must my organization comply
with Title I of the ADA?
If your organization has 15 or more employees, it must comply with Title I of the ADA.
What employment practices
The ADA, as amended, makes it unlawful to discriminate in all employment practices, such as recruitment, application process, interviewing, hiring, job assignment, rate of pay, layoff, firing, training opportunities, promotion, benefits, leave and other employment-related activities.
It is unlawful for an employer to retaliate against an employee for asserting his or her rights under the ADA. The act also protects an applicant or employee who is not disabled, but who asserts he or she is the victim of discrimination because of their family, business, social, or other relationship or association with an individual with a disability.
Is your applicant or employee
protected by the ADA?
If your applicant or employee has a disability and is qualified to do a job, the ADA protects him or her from discrimination on the basis of disability. Under the ADA, as amended, your applicant or employee has a disability if he or she has a physical or mental impairment that substantially limits a major life activity. The definition of “substantially limits” has been expanded by the ADA Amendments Act of 2008, in that the amendments make clear that your applicant or employee need not be completely unable to perform an activity in order to be disabled. Your employee may also be protected if he or she has a history of such a disability, or if the employer perceives the employee to have such a disability, even if they do not.
An applicant or employee with a disability must be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from employment discrimination under the ADA. This means two things. First, the applicant or employee must satisfy the employer’s requirements for the job, such as education, employment experience, skills or licenses.
Second, the applicant or employee must be able to perform the essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties that the employee must be able to perform on his or her own or with the help of a reasonable accommodation.
Best-practice tip: Have a written job description for all positions, which sets forth both the essential and nonessential functions of the job.
What is a reasonable accommodation?
A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in a job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Reasonable accommodation may include:
- Providing or modifying equipment or devices, including providing assistive technology, job restructuring, part-time or modified work schedules, reassignment to a vacant position, and adjusting or modifying examinations, training materials or policies.
- Providing readers and interpreters.
- Making the workplace readily accessible to and usable by people with disabilities.
An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship—that is, that it would require significant difficulty or expense.
Best-practice tip: If you are claiming undue hardship, be sure you can document the expense or fundamental alteration of the business operations. If an employee requests an accommodation, be sure to engage the employee in a dialogue. The ADA requires an “interactive process”—not a simple yes or no.
Where can I get more ADA Title
The Equal Employment Opportunity Commission (EEOC) or the Job Accommodation Network (JAN).
Jamie Ray-Leonetti, Esq. is a staff attorney with the Philadelphia-based Disability Rights Pennsylvania. She is also a regular contributor to NonProfit PRO, writing the Legal Matters column.