Since The Americans with Disabilities Act: Your Responsibilities as an Employer was published, the Supreme Court has ruled that the
determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in performing a major life activity when using a mitigating measure. This
means that if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person will not meet the ADA's first definition of "disability." The Supreme Court's rulings were in Sutton v. United Airlines, Inc., 527 U.S. ____ (1999), and
Murphy v. United Parcel Service, Inc., 527 U.S. ____ (1999).
As a result of the Supreme Court's ruling, this document's guidance on mitigating measures, found in the section "Additional Questions and Answers on the Americans
with Disabilities Act," is superseded. Following the Supreme Court's ruling, whether a person has an ADA "disability" is determined by taking into account the positive and negative effects of mitigating measures used by the individual.
The Supreme Court's ruling does not change anything else in this document.
For more information on the Supreme Court rulings and their impact on determining whether specific individuals meet the definition of "disability," consult the Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing "Disability" and "Qualified," which can be found on EEOC's Web site at www.eeoc.gov.
The Americans with Disabilities Act of 1990 (ADA)
makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also
outlaws discrimination against individuals with disabilities in
State and local government services, public accommodations,
transportation and telecommunications. This booklet explains the part of the ADA that prohibits job discrimination. This part of the
law is enforced by the U.S. Equal Employment Opportunity Commission
and State and local civil rights enforcement agencies that work
with the Commission.
Job discrimination against people with disabilities is illegal
if practiced by:
- private employers,
- state and local governments,
- employment agencies,
- labor organizations, and
- labor-management committees.
The part of the ADA enforced by the EEOC
outlaws job discrimination by:
- all employers, including State and local government employers,
with 25 or more employees after July 26, 1992, and
- all employers, including State and local government employers,
with 15 or more employees after July 26, 1994.
Another part of the ADA,
enforced by the U.S. Department of Justice, prohibits discrimination in State and local government programs and activities, including discrimination by all State and
local governments, regardless of the number of employees, after
January 26, 1992.
Because the ADA establishes overlapping responsibilities in both
and DOJ for employment by State and local governments, the Federal enforcement effort will be coordinated by
EEOC and DOJ to
avoid duplication in investigative and enforcement activities. In
addition, since some private and governmental employers are already
covered by nondiscrimination and affirmative action requirements
under the Rehabilitation Act of 1973, EEOC, DOJ, and the Department of Labor will similarly coordinate the enforcement effort under the
ADA and the Rehabilitation Act.
makes it unlawful to discriminate in all employment practices such as:
- job assignments
- all other employment related activities.
prohibits an employer from retaliating against an applicant or employee for asserting his rights under the ADA. The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual's family, business, social or other relationship or association with an individual with a disability.
Title I of the ADA protects qualified individuals with disabilities from employment discrimination. Under the ADA, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity. The
protects individuals who have a record of a substantially limiting
impairment, and people who are regarded as having a substantially
To be protected under the ADA, an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks,
walking, caring for oneself, learning or working.
An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the
means that the applicant or employee must:
- satisfy your job requirements for educational background,
employment experience, skills, licenses, and any other
qualification standards that are job related; and
- be able to perform those tasks that are essential to the job,
with or without reasonable accommodation.
does not interfere with your right to hire the best qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA
simply prohibits you from discriminating against a qualified applicant or employee because of her
Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).
Factors to consider in determining if a function is essential include:
- whether the reason the position exists is to perform that
- the number of other employees available to perform the function
or among whom the performance of the function can be distributed,
- the degree of expertise or skill required to perform the
Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions.
Other kinds of evidence that EEOC will consider include:
- the actual work experience of present or past employees in the
- the time spent performing a function,
- the consequences of not requiring that an employee perform a
- the terms of a collective bargaining agreement.
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 the 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. For example, reasonable accommodation may
- acquiring or modifying equipment or devices,
- job restructuring,
- part-time or modified work schedules,
- reassignment to a vacant position,
- adjusting or modifying examinations, training materials or
- providing readers and interpreters, and
- making the workplace readily accessible to and usable by people
Reasonable accommodation also must be made to enable an
individual with a disability to participate in the application
process, and to enjoy benefits and privileges of employment equal
to those available to other employees.
It is a violation of the
ADA to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would
impose an undue hardship on the operation of your business. Undue
hardship means that the accommodation would require significant difficulty or expense.
Frequently, when a qualified individual with a disability
requests a reasonable accommodation, the appropriate accommodation
is obvious. The individual may suggest a reasonable accommodation
based upon her own life or work experience. However, when the
appropriate accommodation is not readily apparent, you must make a
reasonable effort to identify one. The best way to do this is to
consult informally with the applicant or employee about potential
accommodations that would enable the individual to participate in
the application process or perform the essential functions of the
job. If this consultation does not identify an appropriate
accommodation, you may contact the EEOC, State or local vocational rehabilitation agencies, or State or local organizations representing or providing services to individuals with disabilities. Another resource is the Job Accommodation Network
JAN is a free
consultant service that helps employers make individualized accommodations. The telephone number is 1-800-526-7234.
It is not necessary to provide a reasonable accommodation if
doing so would cause an undue hardship. Undue hardship means that
an accommodation would be unduly costly, extensive, substantial or
disruptive, or would fundamentally alter the nature or operation of
the business. Among the factors to be considered in determining
whether an accommodation is an undue hardship are the cost of the
accommodation, the employer's size, financial resources and the
nature and structure of its operation.
If a particular accommodation would be an undue hardship, you
must try to identify another accommodation that will not pose such
a hardship. If cost causes the undue hardship, you must also
consider whether funding for an accommodation is available from an
outside source, such as a vocational rehabilitation agency, and if
the cost of providing the accommodation can be offset by state or federal tax credits or deductions. You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that
constitutes an undue hardship.
It is unlawful to:
- ask an applicant whether she is disabled or about the nature or
severity of a disability, or
- to require the applicant to take a medical examination before
making a job offer.
You can ask an applicant questions about ability to perform
job-related functions, as long as the questions are not phrased in
terms of a disability. You can also ask an applicant to describe or
to demonstrate how, with or without reasonable accommodation, the
applicant will perform job-related functions.
After a job offer is made and prior to the commencement of
employment duties, you may require that an applicant take a medical
examination if everyone who will be working in the job category
must also take the examination. You may condition the job offer on
the results of the medical examination. However, if an individual is not hired because a medical examination reveals the existence of a disability, you must be able to show that the reasons for
exclusion are job related and necessary for conduct of your
business. You also must be able to show that there was no
reasonable accommodation that would have made it possible for the
individual to perform the essential job functions.
Once you have hired an applicant, you cannot require a medical
examination or ask an employee questions about disability unless
you can show that these requirements are job related and necessary
for the conduct of your business. You may conduct voluntary medical
examinations that are part of an employee health program.
The results of all medical examinations or information from
inquiries about a disability must be kept confidential, and
maintained in separate medical files. You may provide medical
information required by State workers' compensation laws to the
agencies that administer such laws.
Anyone who is currently using drugs illegally is not protected
by the ADA
and may be denied employment or fired on the basis of
such use. The ADA
does not prevent employers from testing applicants or employees for current illegal drug use, or from
making employment decisions based on verifiable results. A test for
the illegal use of drugs is not considered a medical examination
under the ADA;
therefore, it is not a prohibited pre-employment medical examination and you will not have to show that the administration of the test is job related and consistent with
business necessity. The
ADA does not encourage, authorize or
prohibit drug tests.
The provisions of the
ADA which prohibit job discrimination will
be enforced by the U.S. Equal Employment Opportunity Commission.
After July 26, 1992, individuals who believe they have been
discriminated against on the basis of their disability can file a
charge with the Commission at any of its offices located throughout
the United States. A charge of discrimination must be filed within
180 days of the discrimination, unless there is a state or local
law that also provides relief for discrimination on the basis of
disability. In those cases, the complainant has 300 days to file a
The Commission will investigate and initially attempt to resolve
the charge through conciliation, following the same procedures used
to handle charges of discrimination filed under Title VII of the
Civil Rights Act of 1964. The ADA also incorporates the remedies
contained in Title VII. These remedies include hiring, promotion,
reinstatement, back pay, and attorneys fees. Reasonable
accommodation is also available as a remedy under the
The Commission believes that employers want to comply with the
ADA, and that if they are given sufficient information on how to comply, they will do so voluntarily.
Accordingly, the Commission conducts an active technical
assistance program to promote voluntary compliance with the
This program is designed to help employers understand their
responsibilities and assist people with disabilities to understand
their rights and the law.
In January 1992, EEOC published a Technical Assistance Manual,
providing practical application of legal requirements to specific
employment activities, with a directory of resources to aid
EEOC publishes other educational materials, provides
training on the law for employers and for people with disabilities,
and participates in meetings and training programs of other
EEOC staff also will respond to individual requests
for information and assistance. The Commission's technical
assistance program is separate and distinct from its enforcement
responsibilities. Employers who seek information or assistance from
the Commission will not be subject to any enforcement action
because of such inquiries.
The Commission also recognizes that differences and disputes
about the ADA
requirements may arise between employers and people
with disabilities as a result of misunderstandings. Such disputes
frequently can be resolved more effectively through informal
negotiation or mediation procedures, rather than through the formal
enforcement process of the ADA. Accordingly, EEOC will encourage efforts to settle such differences through alternative dispute resolution, providing that such efforts do not deprive any
individual of legal rights provided by the statute.
Q. What is the relationship between the
ADA and the
Rehabilitation Act of 1973?
A. The Rehabilitation Act of 1973 prohibits discrimination on
the basis of handicap by the federal government, federal contractors and by recipients of federal financial assistance. If you were covered by the Rehabilitation Act prior to the passage of the ADA, the
ADA will not affect that coverage. Many of the provisions contained in the
are based on Section 504 of the
Rehabilitation Act and its implementing regulations. If you are
receiving federal financial assistance and are in compliance with
Section 504, you are probably in compliance with the ADA
requirements affecting employment except in those areas where the
ADA contains additional requirements. Your nondiscrimination
requirements as a federal contractor under Section 503 of the
Rehabilitation Act will be essentially the same as those under the ADA; however, you will continue to have additional affirmative action requirements under Section 503 that do not exist under the
Q. If I have several qualified applicants for a job,
does the ADA
require that I hire the applicant with a
A. No. You may hire the most qualified applicant. The
makes it unlawful for you to discriminate against a qualified
individual with a disability on the basis of disability.
Q. One of my employees is a diabetic, but takes insulin
daily to control his diabetes. As a result, the diabetes has no
significant impact on his employment. Is he protected by the
A. Yes. The determination as to whether a person has a
disability under the
ADA is made without regard to mitigating
measures, such as medications, auxiliary aids and reasonable
accommodations. If an individual has an impairment that
substantially limits a major life activity, she is protected under
regardless of the fact that the disease or condition or
its effects may be corrected or controlled.
Q. One of my employees has a broken arm that will heal
but is temporarily unable to perform the essential functions of his
job as a mechanic. Is this employee protected by the
A. No. Although this employee does have an impairment, it does
not substantially limit a major life activity if it is of limited
duration and will have no long term effect.
Q. Am I obligated to provide a reasonable accommodation
for an individual if I am unaware of her physical or mental
A. No. An employer's obligation to provide reasonable accommodation applies only to known physical or mental limitations. However, this does not mean that an applicant or employee must always inform you of a disability. If a disability is obvious, e.g., the applicant uses a wheelchair, the employer "knows" of the disability even if the applicant never mentions it.
Q. How do I determine whether a reasonable accommodation
is appropriate and the type of accommodation that should be made
A. The requirement generally will be triggered by a request from
an individual with a disability, who frequently can suggest an
appropriate accommodation. Accommodations must be made on a
case-by-case basis, because the nature and extent of a disabling
condition and the requirements of the job will vary. The principal
test in selecting a particular type of accommodation is that of
effectiveness, i.e., whether the accommodation will enable the
person with a disability to perform the essential functions of the
job. It need not be the best accommodation or the accommodation the individual with a disability would prefer, although primary
consideration should be given to the preference of the individual
involved. However, as the employer, you have the final discretion
to choose between effective accommodations, and you may select one that is least expensive or easier to provide.
Q. When must I consider reassigning an employee with a
disability to another job as a reasonable
A. When an employee with a disability is unable to perform her
present job even with the provision of a reasonable accommodation,
you must consider reassigning the employee to an existing position
that she can perform with or without a reasonable accommodation.
The requirement to consider reassignment applies only to employees and not to applicants. You are not required to create a position or to bump another employee in order to create a vacancy. Nor are you required to promote an employee with a disability to a higher level position.
Q. What if an applicant or employee refuses to accept an
accommodation that I offer?
A. The ADA
provides that an employer cannot require a qualified individual with a disability to accept an accommodation that is neither requested nor needed by the individual. However, if a necessary reasonable accommodation is refused, the individual may be considered not qualified.
Q. If our business has a health spa in the building,
must it be accessible to employees with disabilities?
A. Yes. Under the ADA, workers with disabilities must have equal
access to all benefits and privileges of employment that are
available to similarly situated employees without disabilities. The
duty to provide reasonable accommodation applies to all non-work
facilities provided or maintained by you for your employees. This
includes cafeterias, lounges, auditoriums, company-provided
transportation and counseling services. If making an existing
facility accessible would be an undue hardship, you must provide a
comparable facility that will enable a person with a disability to
enjoy benefits and privileges of employment similar to those
enjoyed by other employees, unless this would be an undue
Q. If I contract for a consulting firm to develop a
training course for my employees, and the firm arranges for the
course to be held at a hotel that is inaccessible to one of my
employees, am I liable under the ADA?
A. Yes. An employer may not do through a contractual or other
relationship what it is prohibited from doing directly. You would
be required to provide a location that is readily accessible to,
and usable by your employee with a disability unless to do so would
create an undue hardship.
Q. What are my responsibilities as an employer for
making my facilities accessible?
A. As an employer, you are responsible under Title I of the
for making facilities accessible to qualified applicants and
employees with disabilities as a reasonable accommodation, unless
this would cause undue hardship. Accessibility must be provided to
enable a qualified applicant to participate in the application
process, to enable a qualified individual to perform essential job
functions and to enable an employee with a disability to enjoy
benefits and privileges available to other employees. However, if
your business is a place of public accommodation (such as a
restaurant, retail store or bank) you have different obligations to
provide accessibility to the general public, under Title III of the
ADA. Title III also will require places of public accommodation and
commercial facilities (such as office buildings, factories and
warehouses) to provide accessibility in new construction or when
making alterations to existing structures. Further information on
these requirements may be obtained from the U.S. Department of
Justice, which enforces Title III. (See page 22).
Q. Under the ADA, can an employer refuse to hire an individual or fire a current employee who uses drugs
A. Yes. Individuals who currently use drugs illegally are
specifically excluded from the ADA's protections. However, the
does not exclude:
- persons who have successfully completed or are currently in a
rehabilitation program and are no longer illegally using drugs,
- persons erroneously regarded as engaging in the illegal use of
Q. Does the ADA
cover people with AIDS?
A. Yes. The legislative history indicates that Congress intended
the ADA to
protect persons with
AIDS and HIV
disease from discrimination.
Q. Can I consider health and safety in deciding whether
to hire an applicant or retain an employee with a
A. The ADA
permits an employer to require that an individual not pose a direct threat to the health and safety of the individual or others in the work-place. A direct threat means a significant risk of substantial harm. You cannot refuse to hire or fire an individual because of a slightly increased risk of harm to himself or others. Nor can you do so based on a speculative or remote risk. The determination that an individual poses a direct threat must be based on objective, factual evidence regarding the individual's
present ability to perform essential job functions. If an applicant
or employee with a disability poses a direct threat to the health
or safety of himself or others, you must consider whether the risk
can be eliminated or reduced to an acceptable level with a
reasonable accommodation. Q. Am I required to provide
additional insurance for employees with disabilities?
A. No. The ADA only requires that you provide an employee with a
disability equal access to whatever health insurance coverage you
provide to other employees. For example, if your health insurance
coverage for certain treatments is limited to a specified number
per year, and an employee, because of a disability, needs more than
the specified number, the ADA does not require that you provide additional coverage to meet that employee's health insurance needs. The ADA also does not require changes in insurance plans that exclude or limit coverage for pre-existing conditions.
Q. Does the ADA require that I post a notice explaining its requirements?
A. The ADA
requires that you post a notice in an accessible format to applicants, employees and members of labor organizations, describing the provisions of the Act. EEOC will provide employers with a poster summarizing these and other Federal legal requirements for nondiscrimination. EEOC will also provide guidance on making this information available in accessible formats for people with disabilities.
For more specific information about ADA requirements affecting
Equal Employment Opportunity
1801 L Street, NW
Washington, DC 20507
(800) 669-4000 (Voice), (800) 669-6820 (TDD)
(202) 663-4900 (Voice - for 202 Area Code)
(202) 663-4494 (TDD - for 202 Area Code
For more specific information about ADA requirements affecting
public accommodations and State and local government
Department of Justice
Office on the Americans with Disabilities Act
Civil Rights Division
P.O. Box 66118
Washington, DC 20035-6118
(202) 514-0301 (Voice)
(202) 514-0381 (TDD)
(202) 514-0383 (TDD)
For more specific information about requirements for
accessible design in new construction and alterations
Architectural and Transportation Barriers
1111 18th Street, NW
Washington, DC 20036
For more specific information about ADA requirements affecting
Department of Transportation
400 Seventh Street, SW
Washington, DC 20590
(202) 755-7687 (TDD)
For more specific information about ADA requirements for
Federal Communications Commission
1919 M Street, NW
Washington, DC 20554
(202) 632-1836 (TDD)
For more specific information about federal disability-related
tax credits and deductions for business contact:
Internal Revenue Service
Department of the Treasury
1111 Constitution Avenue, NW
Washington, DC 20044
This booklet is available in Braille, large print, audiotape and
electronic file on computer disk. To obtain accessible formats call
the Office of Equal Employment Opportunity on (202) 663-4395
(voice) or (202) 663-4399 (TDD), or write to this office at 1801 L
Street, N.W., Washington, D.C. 20507.