The ADA Turns 25

July 26 marked twenty-five years since the signing of the Americans with Disabilities Act (ADA). The legislation was comprehensive, aiming to protect individuals from discrimination in employment (Title I), public services (Title II), and places of public accommodations (Title III). Congress hoped to remove obstacles to employment, especially those based on stereotypes or stigmatization. Although the ADA has helped to open many doors, work remains to be done to ensure equal opportunity for individuals with disabilities.

Title I (employment) of the ADA has garnered the most attention since its enactment. In its current form, the ADA applies to employers that have fifteen or more employees.[1] The ADA did not create categories of conditions that constitute disabilities.[2] Rather, the ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.”[3] For years, courts interpreted this definition very narrowly, spurring Congress to amend the ADA in 2008 to reiterate its intent to cover a broad range of disabilities.

Perhaps the most widely known protection for workers and job applications is for an employer to make a “reasonable accommodation” to an employee who needs an accommodation to perform his or her job.[4] The employer’s obligation only arises if the employee is qualified for and able to perform the job. Importantly, an employee can be considered unqualified without an accommodation but become qualified if the employer provides an accommodation. For example, regular performance of an employee’s job could be necessary for her position.[5] If an employee’s disability regularly prevented her from coming into work where she performed her job, she might be unqualified for the position without an accommodation. If the employee could perform her job regularly from home, however, she would be qualified for her position with the accommodation of working from home.[6]

To explore whether a worker’s disability can be accommodated, the ADA requires employers and employees to engage in the “interactive process.” Unless the employee’s disability prevents him or her from communicating the need for an accommodation, the employee must inform the employer accordingly. No magic words are required,[7] and an employee does not have to disclose the condition itself.[8] Once the employer is informed that an employee might need an accommodation because of a disability, the employer must initiate the conversation. The employer’s duty to engage in the interactive process is ongoing and does not end if an initial accommodation fell short of enabling the employee to perform his or her job.

Despite the protections of the ADA, many individuals still encounter discrimination on the job (or during the application process). Sometimes employees have to resort to the court system to enforce their right to be free from discrimination, including the failure to provide a reasonable accommodation. The ADA authorizes civil lawsuits by individuals, although an employee or job applicant must go through the EEOC’s administrative process first. Although the legal system can be obtuse and the law is complicated, the ADA provides litigation as the backstop enforcement mechanism to combat disability discrimination in the workplace. Our society has come a long way since the ADA was enacted twenty-five years ago but work remains to be done to assure equal opportunity for individuals with disabilities.

[1] 42 U.S.C. § 12111(5). Under Oregon law, employers with six or more employees are covered by the state law prohibiting disability discrimination. ORS 659A.106.

[2] But see 29 C.F.R. § 1630.2(j)(3)(iii) (explaining that certain conditions are expected to qualify because of the condition inherently substantially limits at least one or more major life activity; for example, blindness substantially limits seeing, and major depressive disorder substantially limits brain function).

[3] 42 U.S.C. § 12101(1)(A). The definition also includes having “a record of such an impairment,” 42 U.S.C. § 12101(1)(B), or “being regarded as having such an impairment,” 42 U.S.C. § 12101 (1)(C).

[4] The reasonable-accommodation duty is subject to the narrow exception of “undue hardship.”

[5] See, e.g., Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1136–37 (9th Cir. 2001).

[6] Id.

[7] Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112–14 (9th Cir. 2000), vacated on other grounds, 535 U.S. 391 (2001).

[8] The employer, however, may make disability-related inquiries that are “job-related and consistent with business necessity.” 29 C.F.R. § 1630.14(c).