Legal Rights of Persons With Disabilities - Ossh.com

The determination of what constitutes a "reasonable accommodation" required by the ADA will
depend on specific circumstances and might include modified work schedules, job restructuring, changes to
work areas or equipment, and similar adjustments. (42 U.S.C. ' 12111(9)(A) and (B).)
b. Undue Hardship
An employer may be excused from the obligation to make an accommodation where it can be
demonstrated that undue hardship would result to the employer's business. Where undue hardship will
result, the accommodation is not reasonable and will not be required. "Undue hardship" is defined as any
action requiring significant difficulty or expense, taking into account a number of factors, including cost,
complexity and impact on the work performed. (42 U.S.C. ' 12111(10).)
3. Nondiscrimination in Recruitment and Testing
Under the ADA, a covered employer may not conduct pre-employment medical or psychological
examinations, nor can an employer make pre-employment inquiries regarding the existence, nature or
severity of an applicant's disabilities. However, the employer may make inquiries about an applicant's
ability to perform job-related duties. (42 U.S.C ' 12112(d)(2).)
Once an employer has made an offer of employment, the employer may require a medical
examination or inquiry. Such exams or inquiries may only be required if required of all new employees,
regardless of disability. Medical exams or inquiries which use criteria to screen out employees with
disabilities may only use such criteria if it can be shown that the exclusionary criteria are job-related and
consistent with business necessity. Any information resulting from such examinations or inquiries must be
maintained in a separate confidential file, but may be shared with supervisors and managers for safety or
other significant job performance reasons. (42 U.S.C.
' 12112(d)(3).)
Employers may not require medical exams or make inquiries of an employee regarding the nature
or severity of a disability unless it is shown to be job-related and consistent with business necessity. (42
U.S.C. ' 12112(d)(4).)
Employment tests that tend to screen out individuals with disabilities are prohibited by the ADA
unless shown to be job-related for the position in question and justified by business necessity. The ADA
requires that employment tests be administered in a manner that ensures a fair reflection of the skills and
aptitudes actually needed to perform the job. (42 U.S.C. ' 12112(b)(6) & (7).)
4. Complaint Procedures
The ADA gives the federal Equal Employment Opportunity Commission (EEOC) the primary
authority to enforce the ADA=s prohibitions against discrimination in employment based upon disability or
perceived disability. Accordingly, an individual who believes that he or she has been the victim of
employment discrimination because of a disability can file a complaint with the EEOC for investigation. A
complaint must be filed with EEOC before a private lawsuit can be filed. (42 U.S.C. ' 12117.)
B. The Federal Rehabilitation Act of 1973
The Rehabilitation Act of 1973 (the AAct@) prohibits the federal government, federal contractors,
and employers who receive federal financial assistance from discriminating against Aqualified disabled
individuals@ in employment. (29 U.S.C. ' 701 et seq.) This protection extends to all aspects of
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