Posted in disability civil rights, Employment, Essential job functions and disabilities

Getting Real about Disability Laws, Part 1

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Who knows what’s true anymore? Is the above photo a joke or would an airline really have to allow an “emotional support elephant” on a flight?

Spoiler alert: The photo is obviously a joke. But there really is a tremendous amount of misinformation out there about what our disability laws require. So in the next few posts, I am going to try to correct some of these “urban legends” that add to the already  misleading view of people with disabilities.

Myth:The Americans with Disabilities Act (ADA) requires employers to hire people with disabilities, even if they are not the most qualified applicants for a job.

Fact: The ADA specifically states that it does not prevent employers from hiring the most qualified person for a position. What it does prohibit, however, is employers imposing job requirements that  BOTH screen out people with disabilities AND are not “essential functions” of the job.

Example: A law office needs to hire a legal assistant. That person’s job is to do legal research and draft court pleadings. Occasionally, that person may be asked to drive to the courthouse and file papers, but there are plenty of other people around who could do that if s/he were not available.

Andrea applies for the job and would be the leading candidate, were it not for the fact that she has a nerve disorder that prevents her from driving.  If the employer decides not  to hire her for this reason, the employer might be violating the ADA, because it is not essential that Andrea be able to do that task.

But let’s change the facts a bit: This is a small office and the legal assistant must be depended on to file court papers on a regular basis. In that case, it would probably be legal for the employer to pass over Andrea, because she would be unable to perform the essential functions of the position.

As is clear, phrases like “essential functions” and “job descriptions” become crucial in analyzing these kinds of cases. And the ADA requires that each situation be judged on its own facts, to determine the meaning of these phrases in each particular setting.

So essentially, the ADA is requiring employers (and everyone) to free ourselves from outdated and unwarranted assumptions. And that would be a desirable step forward, even without the law.

For more information, to to the “employment” link on this website or to www.ada.gov.

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Author:

I am an attorney with a disability, and I co-teach a class on disability law. But because laws are just words, I would like to learn and convey more of the real world of living with a disability in the 21st Century.

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