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Published: 2008-03-26

How to Hire Right and Fire Right Under the Americans with Disabilities Act



INTRODUCTION

All hiring and firing decisions should be made with a view towards avoiding potential legal problems. The federal Americans with Disabilities Act (ADA) presents special considerations that heighten an employer's need to tread carefully in these areas.

Like other anti-discrimination statutes, the underlying premise of the ADA is that employment decisions should be made in a neutral manner, focusing upon an individual's ability to do the job without regard to non-job related criteria. However, because an individual's disability may in fact impact upon his or her ability to perform the job in question, the ADA sets up a step-by-step framework for analyzing this issue that often seems quite confusing. This confusion is particularly evident in the context of hiring decisions and pre-employment inquiries. Nonetheless, by understanding the basic parameters of the ADA, a prudent employer can go a long way towards avoiding legal problems.

This chapter examines an employer's primary obligations under the ADA. First, it discusses key ADA terms and concepts, including what it means to provide a "reasonable accommodation" to a "qualified individual with a disability." Next, the chapter examines the hiring process, and explains what an employer can and cannot do in the context of pre-employment inquiries and testing. Finally, the chapter discusses what an employer can do to reduce exposure when faced with a termination decision involving an employee with a disability.

  1. KEY ADA TERMS
  2. The ADA prohibits job discrimination against qualified individuals with a disability. This seemingly simple phrase actually requires a several-step analysis.

    1. What Is a Disability?

A disability is defined in three parts:

  • a physical or mental impairment that substantially limits a major life activity; or
  • having a record of such an impairment; or
  • being regarded as having such an impairment.

42 U.S.C. §12102(2). Major life activities are broadly defined and include working, seeing, hearing, speaking, breathing, walking and interacting with people.

Certain conditions are, by statutory definition and regulatory guidelines, not considered disabilities. For example, common personality traits (such as a quick temper), normal deviations in height, weight, or strength, pregnancy, homosexuality and bisexuality are not disabilities. Similarly, temporary conditions such as broken limbs, appendicitis, concussions and the like are not disabilities. Current illegal drug use is not a disability, but alcoholism is.

Further, inability to perform only a single job or a few jobs does not rise to the level of a disability. Rather, a disability must restrict the individual from performing a class of jobs or a broad range of jobs.

Example: An asthmatic in a hospital who was unable to perform only one job - that of a lab technician in a particular location within the hospital - was not considered disabled under the ADA. Heilweil v. Mt. Sinai Hospital, 32 F.3d 718 (2d Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995).

  1. Who Is a Qualified Individual With a Disability?
  2. The ADA protects qualified individuals with a disability. This means that the disabled individual: (1)satisfies the prerequisites of the job (e.g., skills, education and other job-related criteria) and (2)can perform the job's essential functions with or without reasonable accommodation by the employer.

    Example: If one of the requirements of an accounting job is a CPA degree, a wheelchair-bound person who lacks this qualification need not be hired, as long as all applicants are held to the same requirements. Similarly, if a deaf person who does not know how to drive applies for a job as a school bus driver, he or she is not otherwise qualified, again provided that all others are treated similarly.

  3. What Is Reasonable Accommodation?

An employer is required to make reasonable accommodation for the known physical or mental limitations of an otherwise qualified individual, unless it would cause undue hardship to the employer's business. As with all other aspects of the ADA, the issue of reasonable accommodation must be decided on a case-by-case basis.

An employer is entitled to demand evidence of the disability requiring accommodation and information detailing the form of accommodation needed. An employer need not provide the best possible accommodation, reallocate essential job functions, create a new position for the disabled person, or place him or her in a position for which the individual lacks the requisite qualifications.

Example: A customer service representative who suffers from job-related stress asks that her job functions be reallocated so that she does not need to deal with customer complaints on the phone. Because this would entail stripping the job of its essential function - dealing with customer complaints over the phone - it is not a reasonable accommodation and is not required.

Example: A lab technician who suffers from occupational asthma asks to be reassigned to a computer operator's job. He has no computer training and there is no computer job available. Because the employer is not required to create a job or to place an unqualified worker in a job, this is not a reasonable accommodation and is not required.

Depending upon the facts, reasonable accommodation may include physical modification of the job site, special equipment, part-time or modified work schedules, or leaves of absence. While it is an employer's burden to show that an accommodation would impose an undue hardship, such factors as the cost of the proposed accommodation relative to the individual's salary, the impact upon employee morale, and the unavailability of outside funding may not be considered.

  1. Hiring: Pre-Employment and Post-Offer Inquiries and Testing
  2. The ADA and accompanying EEOC Guidelines devote much attention to pre-employment inquiries and testing. The Guidelines, revised in October 1995, are supposed to provide employers with somewhat more leeway in asking questions at the pre-employment stage. While the EEOC has stated that the Guidelines are designed to reflect a "common-sense approach," extreme caution is still required in the pre-hiring process.

    1. Advertisements and Postings.
    2. An employer's obligation under the ADA to provide equal opportunity extends to the recruiting process, both in terms of job advertisements and postings and to the application process itself. Job advertisements and announcements should be carefully drafted.

      If a job advertisement includes any information about the content of a job, it should specify to the extent possible the required job duties. Where an employer has previously identified the essential functions of the job - a process that should be regularly undertaken in any event - the EEOC recommends that the ad list the essential job functions. It is also permissible to list only the primary job functions and to state that further information about the job's other essential requirements can be obtained from the appropriate personnel officer of the company. It is generally inadvisable to list non-essential job functions in any advertisement or posting.

      A job advertisement should also state the qualifications that are required for the job (e.g., a CPA certification, a driver's license, a high school diploma). Conversely, an ad should not list requirements that are not job-related. However, an advertisement may state that certain criteria are preferred, although this approach should be undertaken with great care since it may lead to litigation over whether the "preferred" criteria are simply a means of excluding otherwise qualified individuals.

      Example: A job as an office manager requires familiarity with Lotus 1-2-3 for use in billing functions. The ad may state, "Familiarity with Lotus 1-2-3 required." Persons without such familiarity need not be hired, whether disabled or not.

      Unless a job's essential functions require a particular degree of physical or mental abilities or strength, such references should be omitted.

      Example: Where a warehouse worker is required to regularly lift boxes weighing more than 50 pounds as an essential job function, the advertisement may so state.

      If a job advertisement provides only a telephone number to call (as opposed to a mailing address), the ADA requires that the ad include a Telecommunication Device for the Deaf (TDD) number, unless a telephone relay service has been established that allows people using TDDs to speak directly using a relay operator.

      Employers that use recruiting services or placement agencies for job searches may be liable, along with the outside agency, for any violations of the ADA by the agency. Therefore, such agencies should be chosen with great care and with full information concerning the agency's practices and procedures. The employer should require a written contract that clearly states that the agency conducts all of its recruiting, screening, and hiring practices in accordance with the ADA.

    3. Applications and Interviews.
    4. The ADA prohibits an employer from questioning whether an applicant is an individual with a disability, and any other disability-related questioning. This prohibition includes both direct questions and those that are likely to elicit information about a disability. With two exceptions discussed below, an employer may not ask questions about the need for reasonable accommodation.

      1. Topics to Avoid.

Do not ask questions about:

  • Whether the applicant is an individual with a disability;
  • The nature or severity of any disability;
  • Whether the applicant is suffering from an illness or is on any medication;
  • Whether the applicant has filed workers' compensation claims, or about their nature or frequency;
  • Why the individual was absent from his/her previous job(s);
  • Whether the individual needs reasonable accommodation to perform the job; or
  • Whether the applicant is an alcoholic.
  1. The Hiring Process Exception.
  2. An employer may explain the application process to an applicant and ask whether he or she will need reasonable accommodation for this process. If the applicant requests accommodation at the application stage, the employer may ask for reasonable documentation of the disability if it is not obvious.

    Example: A person with no hands applies for a telephone answering job for which a written application needs to be completed. The employer may ask whether the applicant will need reasonable accommodation to complete the application process. If the applicant says yes, the employer may not ask for documentation of the disability because it is obvious. If, however, a person with dyslexia responds that reasonable accommodation is required to complete the application process, the employer may ask for documentation because the condition is not obvious.

  3. The Reasonable Belief Exception.
  4. The Guidelines also allow an employer to ask about reasonable accommodation if the employer reasonably believes that the applicant will need it to perform a job function and has that belief for one of three reasons:

    1. the applicant has an obvious disability;
    2. the applicant has voluntarily disclosed a hidden disability; or
    3. the applicant has voluntarily disclosed that he or she will need reasonable accommodation.

    Under these circumstances, the employer may ask the applicant whether he or she needs reasonable accommodation and what type is needed.

    Example: An individual with cancer voluntarily states that he or she will need periodic breaks to take medication. The employer may ask how often the breaks will be needed and how long they must be, but may not ask any questions about the underlying condition.

    Example: An obviously visually impaired person applies for a job as data processor that involves extensive work at a computer. The employer may ask whether he or she will need reasonable accommodation to perform the job. If the applicant says no, the employer may not ask additional questions but may ask the applicant to demonstrate or describe how he or she would perform a particular job function. If the applicant says yes, the employer may ask questions about the type of accommodation needed to perform the job function.

    Note, however, that the employer may not ask questions about the need for reasonable accommodation for non-job related functions, such as getting to the cafeteria or rest rooms.

  5. Ability to Perform Essential Job Functions.
  6. An employer may provide the applicant with a copy of the job description and ask if the applicant can perform the tasks described with or without a reasonable accommodation. An employer should not, however, ask whether the applicant would need an accommodation or what that accommodation would be.

    An employer may ask applicants to describe how they would perform any or all job functions, as long as all applicants in the job category are asked to do the same.

    Example: If driving at night is an essential function of the job, the employer may ask whether the applicant has a proper driver's license and is able to drive the required hours. The employer may not, however, inquire whether the applicant has epilepsy.

  7. Impairments.
  8. So long as the question is not likely to elicit information about whether the applicant has a disability, the employer may ask questions about whether the person has an impairment. Not all impairments are disabilities; an impairment is only a disability if it substantially limits a major life activity.

    Example: If an applicant has a broken arm or sprained ankle, you may ask how the injury occurred. Do not, however, ask what the expected recovery time or general prognosis is for the injury. A question such as this is likely to elicit information about whether the person has a disability (e.g., a disability making the person's bones brittle).

    Nonetheless, because of the potential danger of crossing the line into impermissible questioning, inquiries regarding impairment are rarely advisable.

  9. Past Illegal Drug Use.
  10. An employer may ask applicants about their prior illegal drug use as long as the question is not likely to elicit information about whether the person was addicted to illegal drugs. Past addiction is a covered disability while casual use is not.

    Example: A permissible question would be, "Have you ever used an illegal drug?" An impermissible question would be, "How often did you use illegal drugs in the past?"

  11. Attendance Requirements.

An employer may tell the applicant what the attendance policy of the company is and ask if the applicant can satisfy the policy. Similarly, an employer may ask applicants how many days of work they missed over a certain period of time. An employer may not, however, ask why they missed those days, or how many days the applicant was sick.

  1. Pre-Offer Tests.
    1. Pre-Offer Medical Exams Prohibited.
    2. At the pre-offer stage, an employer cannot require that applicants undergo medical examinations, i.e., examinations that seek information about physical or mental impairments or health. Nevertheless, employers may require physical fitness tests related to the applicant's ability to perform the essential functions of the job. But remember:

      1. An employer may not use a test that tends to disproportionately affect individuals with disabilities unless the test is shown to be job-related. Care should be taken that any test used is linked to an applicant's ability to perform the essential functions of the job.
      2. Tests should be administered in such a manner as to not discriminate against applicants with disabilities. For example, an applicant who is blind should not be required to take a written test if sight is not an essential function of the job. Employers may tell applicants what the hiring process involves and ask applicants whether they will need reasonable accommodations for the required process.
    3. Physical Fitness and Agility Tests Permitted.
    4. A physical agility test is permissible provided that it is given to all applicants regardless of disability. An employer may not monitor an applicant's heart rate or aerobic recovery time during or after performing a job-related task.

    5. Demonstrations Permitted.

    If an employer reasonably believes that an applicant will not be able to perform an essential job function because of a known disability (due to the obvious nature of the disability or voluntary disclosure by the applicant), the employer may ask that applicant to describe or demonstrate how he or she would perform the function.

  2. Post-Offer Medical Exam.
    1. An employer may make a conditional offer of employment based upon an applicant submitting to a physical examination and providing medical records to the employer's physician. A post-offer medical examination must be required of all applicants for the same job category but need not be required for all employees.
    2. An employer may request that the applicant provide an authorization for the release of medical information that can be sent to the applicant's current or prior employer, as well as to any health care provider the applicant has seen.
    3. Before making a conditional offer of employment, an employer should exhaust all non-medical questions. Failure to do so could lead to claims that the offer was a sham and thus any medical inquiry conducted thereafter would be illegal.
    4. If a decision not to hire an applicant is based on the medical examination, the exam must reveal that the applicant is unable to perform tasks required by business necessity, and the employer must show that there is no reasonable accommodation that would enable the applicant to perform the essential functions of the job.
    5. A medical rejection must be based upon the applicant's individual history, physical condition, and prognosis. The risk identified by the exam cannot be speculative or remote, and conclusions based on general medical studies about restrictions or the abilities of individuals to perform certain tasks are insufficient.
  3. Confidentiality.

All medical information, once received, must be kept strictly confidential. The records should be kept in a locked file, separate from the individual's personnel file. This is true even if the applicant is rejected.

  1. Firing Right Under the ADA
  2. Once the hiring hurdles of the ADA have been addressed, another thorny issue frequently arises when an employer wishes to terminate an employee with an alleged disability on the basis that - assuming that a disability in fact exists - the employee cannot be reasonably accommodated without undue hardship to the business. From the employer's perspective, termination appears justified because the work that the employee was hired to do is not getting done and reasonable accommodation does not seem possible.

    Before making a decision to terminate an employee with an alleged disability, the employer should carefully analyze the requirements of the ADA, document whether an accommodation was requested, and determine and document all steps taken in an attempt to accommodate the employee. Only after this thorough analysis should a termination decision be made.

    1. Is the Employee Disabled?
    2. As noted above, not all physical or mental conditions rise to the level of disabilities under the ADA. Is the condition short-term and temporary? Does it restrict the employee from only a single job, parts of a job, or certain tasks? What medical evidence exists to support the claim? Sometimes, but not often, the answer to this threshold issue is so clear that the employer feels comfortable in deciding to terminate an employee solely on the basis that he or she is not disabled, but is simply not performing in a satisfactory manner.

    3. Is the Employee Otherwise Qualified?
    4. The next step in the termination analysis is whether the individual is "qualified" to perform the "essential functions" of the job "with or without reasonable accommodation." In the termination context, the question often arises whether absenteeism and failure to comply with the professional standards of the job may justify termination of the individual because they constitute "essential functions."

      While these are generally held to be "essential functions," courts apply a case-by-case analysis depending on the facts involved.

      1. Regular Attendance Is Generally Held to Be an Essential Job Function.
      2. In general, an employer reasonably can expect its employees to come to work on a regular basis. In the following three cases, the courts held that regular attendance was an essential function of the job.

        1. Tyndall v. National Education Center, 31 F.2d 209 (4th Cir. 1995).
        2. In Tyndall, the court held that an employee who cannot meet attendance requirements of the job at issue cannot be considered a "qualified" individual protected by the ADA.

        3. Kennedy v. Applause, Inc., 3 A.D. Cas. (BNA) 1734 (C.D. Cal. 1994).
        4. In Kennedy, an individual (plaintiff) claimed that she was disabled due to chronic fatigue syndrome, and she requested an open-ended work schedule to accommodate the unpredictable changes in her condition. The court held that such an accommodation was not required as a matter of law. Because the plaintiff could not demonstrate that she could maintain a "regular and reliable level of attendance" at her job, she could not prove that she could perform the essential functions of her position. Therefore, she was not an otherwise qualified individual with a disability.

        5. Johnson v. Children's Hosp. of Phila., 4 A.D. Cas. (BNA) 806 (E.D. Pa. 1995).
        6. In Johnson, an employee with sickle-cell anemia, which caused tardiness and absenteeism, was not "otherwise qualified" under the ADA.

          In certain cases, however, attendance may not be considered an essential function of the job. Employers should consider whether the employer has a standard absenteeism policy that is enforced uniformly. Employers should also consider the possibility of allowing the employee to work at home. The following cases are illustrative.

        7. Carlson v. InaCom Corp., 885 F. Supp. 1314 (D. Neb. 1995).
        8. Where the employer had no absenteeism policy, the court refused to find that regular attendance was an essential function of a secretary's job.

        9. Dutton v. Johnson Cty. Bd. of Cty. Comm'rs, 859 F. Supp. 498 (D. Kan. 1994).

        The court refused to dismiss the ADA claim of an employee with migraine headaches who was fired for excessive absenteeism. The court found that the employer did not show that it would be an unreasonable hardship to allow the employee to use unscheduled vacation to cover those absences.

      3. The Ability of an Employee to Adhere to Production and Professional Standards Is Also a Necessary Component of Being "Otherwise Qualified."
      4. In addition to expecting regular attendance, employers are permitted to expect employees with disabilities to perform other essential functions of the job according to the non-discriminatory job standards expected of all employees.

        Example: An employee was diagnosed as manic depressive. Her disability kept her from maintaining objectively acceptable standards of conduct within an office environment. The court held that the employee was not "otherwise qualified." Carroza v. Howard County Md., 45 F.2d 425 (4th Cir. 1995).

        Example: Charlie Milton and Gary Massey worked as grocery selectors in Scrivner's warehouse where their jobs involved taking orders and loading the requested items onto pallets. In 1992, Scrivner established new production schedules that required Milton and Massey to do more work in less time. When they were unable to meet the new standards, they were discharged. They subsequently filed a lawsuit, claiming that they were wrongfully discharged because of disability discrimination.

        The court disagreed, holding that the ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job. The ADA does require that standards be "consistent with business necessity." Scrivner showed that its new production standards were necessary for Scrivner to be competitive. The employees' inability to meet the production standards does not constitute a disability under the ADA. The court agreed with Scrivner that the employees were not "otherwise qualified" and that no reasonable accommodation could make them so. Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995).

      5. Enforcement of Professional Standards Will Not Make Action Lawful If Action Is Motivated by Discriminatory Bias.

      A California court held that an employer actually motivated by discriminatory bias cannot rely on the enforcement of professional standards to support a termination decision. In that case, an employee (plaintiff), who had suffered periodic seizures throughout his life, was fired after he experienced an epileptic seizure and threw a pen and some coins at a supervisor. He became unconscious during the incident and had no memory of throwing the objects. When he regained consciousness, he went to the local police department to file a complaint alleging that his co-workers threatened him. He then went home and took a nap. He met with the supervisor the following day and was told he was fired from the project for leaving the facility without permission. At trial, the supervisor testified that she had already planned on firing plaintiff for throwing the objects at her.

      The court found that plaintiff had a perfect attendance record and that the one instance of supposed insubordination did not render him unqualified for the job. The court rejected the proffered reasons for firing plaintiff, finding that he was fired because of his condition. In making its decision, the court relied on two phone calls from the supervisor and another employee to plaintiff's doctors inquiring whether his extreme behavior meant his epilepsy was out of control. Sunkett v. Olsten Temporary Services, 1995 WL 767817 (N.D. Cal. 1995).

    5. Have Reasonable Accommodations Been Requested and Offered?
    6. Perhaps the most critical - and difficult - step in the pre-termination analysis involves the question of reasonable accommodation. This issue is highly fact-intensive. However, certain general principles apply.

      1. An Employer Is Entitled to Demand Evidence of the Disability Requiring Accommodation.
      2. In Dumas v. Keebler Company, 5 A.D. Cas. (BNA) 69 (M.D. Ga. 1995), the court held that an employer did not violate the ADA by asking an employee with a state-issued handicap parking permit to prove her need for a handicapped parking spot in the company lot, where a doctor's note stated that the employee could return to work without restrictions.

      3. An Employer May Also Insist on Information Detailing the Form of Accommodation Needed. The Employee Should Participate in the Accommodation Process.
      4. In Beck v. University of Wisconsin Board of Regents, 75 F. 3d 1130 (7th Cir. 1996), the court held that an employee who does not cooperate in the accommodation process by providing necessary information may not be entitled to an accommodation. In Beck, the employer attempted to accommodate the plaintiff by (1)assigning her to a less stressful job; (2)asking her to sign a release to permit access to medical information; and (3)scheduling a meeting to discuss accommodations. The employer told the plaintiff that it needed more information about how to deal with her disability, because the information provided was not sufficient to make an appropriate accommodation. Because the employee did not participate in the accommodation process and failed to spell out the accommodations she needed to perform her job, the employer was held not liable for its failure to implement an accommodation.

      5. The ADA Only Requires That an Employee Be Provided Reasonable Accommodation, Not the Best Possible Accommodation.
      6. Federal regulations state that although an employee's preference should be "given primary consideration, ... the employer has the discretion to choose between effective accommodations and may choose the less expensive accommodation or the accommodation that is easier to provide." 29C.F.R. Pt. 1630, App. §1630.9.

        Example: Employer reasonably accommodated employee by giving her a lap-top computer to use while working at home, even though employee contends that she would have been able to do more work if she had been provided with a desk-top computer and a laser printer. Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538 (7th Cir. 1995).

        Example: Employee with severe bronchial asthma was not entitled to a completely smoke-free workplace as an accommodation since his performance appraisals indicated that he was able to adequately perform his employment duties with the reasonable accommodations provided by his employer (banning smoking in certain areas). Harmer v. Virginia Electric & Power Co., 831 F. Supp. 1300 (E.D. Va. 1993).

      7. The ADA Does Not Require Employers to Reallocate Essential Functions of the Job.
      8. The EEOC's Interpretive Guidelines expressly state that "[a]n employer or other covered entity is not required to reallocate essential functions. The essential functions are by definition those that the individual who holds the job would have to perform with or without reasonable accommodation."

        Example: Alterations designed to strip a job of its inherent stresses are not the sort of reasonable accommodation required by the Rehabilitation Act of 1973 and the ADA. Carrozza v. Howard County, Maryland, 847 F. Supp. 365 (D. Md. 1994).

        Example: Eliminating telephone work from the job duties of a customer service representative whose essential function was to answer telephone calls from customers placing orders or lodging complaints was not a reasonable accommodation. Larkins v. Ciba Vision Corp., 858 F. Supp. 1572 (N.D. Ga. 1994).

        Example: Employer had made sufficient accommodation under the ADA by offering an employee other work and did not have to change the nature of her door greeter's job by offering her a stool. Kuehl v. Wal-Mart Stores Inc., 909 F. Supp. 794 (D. Colo. 1995).

      9. An Employer's Liability Will Depend in Part on the Employer's Knowledge.
      10. An issue in many cases is determining what the employer knew and when. For example, in R.G.H. v. Abbott Laboratories, 4 A.D. Cas. (BNA) 289 (N.D. Ill. 1995), a former employee with HIV claimed that he was discharged in violation of the ADA. His claim failed, however, because he was unable to demonstrate that the decision-makers were aware of his HIV status.

        In EEOC v. AIC Security Investigations, Inc., 55 F. 3d 1276 (7th Cir. 1995), the employer terminated its executive director shortly after taking over the business. The employer was aware that the executive director had developed brain cancer. The employer violated the ADA.

      11. Employers Should Implement Accommodations Within a "Reasonable Time."
      12. The ADA has not set time limits in which accommodations must be performed. Accordingly, courts have held that some reasonable delay is excusable in performing requested accommodations.

        Example: "[T]hree months for a company to authorize the purchase of special computer equipment, inquire into its availability, order, and install it is not excessive." Davis v. York Inter., 2 A.D. Cas. (BNA) 1810 (D. Md. 1993).

        Example: An employer's failure to make the kitchenette at work immediately accessible for an employee was not unreasonable as the employee was subsequently permitted to work at home. Vande Zande v. Wisconsin Dept. of Admin., 851 F. Supp. 353 (W.D. Wis. 1994).

      13. An Employer Need Not Accommodate Employees Who Pose a "Direct Threat" to Themselves or Others.

The determination whether an employee's condition poses a direct threat to the employee or to others is an individual inquiry that requires the employer to: (a)determine the nature, severity, and duration of the risk; (b)verify the probability that potential injury will occur; and (c)evaluate the possibility that reasonable modifications of policies, practices or procedures will mitigate the risk.

Example: In one case, the court ruled partially in favor of the employer on the grounds that, although the probability that a surgeon infected with HIV/AIDS would transmit the virus to a patient was unknown, the severity of the potential harm was so significant that the employer was justified in imposing restrictions on the surgeon's practice. Scoles v. Mercy Health Corp. of Southeastern Pennsylvania, 887 F. Supp. 765 (E.D. Pa. 1994).

While employers may act to prevent a direct threat, the prejudices or unfounded concerns of the employer or fellow employees cannot excuse an employer from complying with its obligations under the ADA.

Example: The desire of employees not to work with an epileptic butcher did not justify the employer's termination of the butcher where medical testimony showed that the butcher's seizures did not cause danger to others. Jansen v. Food Circus Supermarkets, Inc., 110 N.J. 363, 541 A.2d 682 (1988); see also Sunkett v. Olsten Temporary Services, 1995 WL 767817 (N.D. Cal. 1995) (employer's phone calls to employee's doctors about his epileptic condition indicated that firing was disability related).

Conclusion

While hiring and firing decisions under the ADA may involve complex legal and factual analysis, the following checklist and resource guides contained in the Appendix (see Appendix, Forms Nos. 8 and 9) provide some practical guidance for employers:

  • Define and document the "essential functions" of each position within the organization through use of a written job description.
  • Draft job postings and advertisements in a neutral manner, focusing on the essential requirements and qualifications of the position in question.
  • Understand that the company may be held liable for the violations of an employment agency; therefore, screen such agencies thoroughly and obtain a written contract stating that the agency will conduct itself in accordance with the ADA.
  • Avoid disability-related questioning in the interviewing process.
  • Avoid pre-offer medical exams.
  • If post-offer examinations are used, be sure that all employees in the same job category are subject to them.
  • Document requests for accommodation. Carefully analyze and document all accommodations considered, offered, and/or rejected and the underlying reasons.
  • If absenteeism or failure to comply with professional or production standards is the basis for termination of an allegedly disabled employee, analyze the situation under the "reasonable accommodation" standard before making a termination decision.
  • Most of all, use common sense. Think of the impression an employer's actions are likely to make on a jury. The difference between no liability and a huge jury verdict is often a matter of whether the employer's actions seem well-reasoned and fair, or hasty and rash.