General Counsel
Overview of Title I of the Americans with Disabilities Act: Employment
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Introduction to the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) (42 U.S.C. § 12101) protects persons with disabilities from discrimination in the areas of employment, access to state and local government programs and services, and public accommodations. Section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C.§ 701-796) subjects colleges and universities to essentially the same requirements as the ADA. The University of Wisconsin System has adopted a policy that complies with the requirements of the ADA and Section 504. This policy details the responsibilities of University of Wisconsin System institutions and the rights of students, employees and members of the general public who have disabilities (Regent Policy 14-10). You should consult that policy or contact the Office of the General Counsel or Campus Legal Counsel to answer questions that this summary of the ADA does not address.
Title I: General Requirements and Definitions
Title I of the Americans with Disabilities Act prohibits discrimination against qualified individuals with disabilities in all conditions of employment, including job application procedures, hiring, firing, advancement, tenure, compensation, training, layoff, leave and fringe benefits.
A disability means a physical or mental impairment that substantially limits one or more of the person's major life activities, a history of such impairment, or being regarded as having such impairment. It is important to note that covered disabilities may be both mental and physical. In addition to the definition of a disability under Title I of the ADA, the definition of a disability under the Wisconsin Fair Employment Act ( WFEA, ss. 111.31-111.395, Stats.) also protects individuals with disabilities from employment discrimination.
For employment purposes, a qualified individual with a disability is a person who meets the legitimate skill, experience, education or other requirements of a position that he or she holds or seeks and who can perform the essential functions of the position with or without reasonable accommodation. A person is not qualified if he or she poses a significant risk to the health or safety to himself, herself or others and if the employer cannot eliminate that risk by reasonable accommodation.
A reasonable accommodation means any modification to a job, to the process of applying for the job or to the work place that will enable a qualified individual with a disability to apply for a job, perform the essential functions of the job or enjoy the same benefits and privileges that nondisabled employees enjoy, as long as the modification does not impose undue financial or administrative hardship on the employer. Requiring a qualified individual with a disability to be able to perform essential (core) job functions ensures that an employer will not consider a person unqualified because he or she cannot perform marginal or incidental functions. For example, a person who is hired as a typist is not unqualified because he or she cannot, with or without a reasonable accommodation, deliver interdepartmental mail.
The kinds of reasonable accommodations that an employer might provide for an employee are as varied as they are for students, but some examples include job restructuring; a part-time or modified work schedule; acquisition or modification of equipment; modification of examinations, training materials or policies; and the provision of auxiliary aids and services, such as qualified readers or interpreters for employees who are deaf or blind. Because the issue of what constitutes a reasonable accommodation is often difficult to resolve, you should first contact your institution's ADA Coordinator or the System's ADA Coordinator and direct any remaining questions to the Office of the General Counsel or Campus Legal Counsel.
Employment Tests and Criteria
An employer may not use employment tests or criteria that tend to screen out qualified individuals with disabilities unless the tests or criteria relate to an essential function of the job. In addition, an employer must select and administer employment tests in a manner that ensures the tests accurately reflect the skill or aptitude of the applicant or employee, and not that person's disability. If the employer knows of an applicant's disability, the employer must make reasonable testing accommodations for the applicant, which may include waiving an employment test or a portion of a test or providing an alternative test or evaluation.
Medical Examinations and Inquiries
An employer may not conduct pre-employment medical examinations or inquiries of a job applicant to determine if the applicant has a disability, although an employer may make certain pre-employment inquiries concerning the applicant's ability to perform job-related functions and may, with some limitations, ask an applicant with a disability how he or she would perform these functions.
Because the issue of employment examinations and inquiries is complex, you should consult the Equal Employment Opportunity Commission's Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations Under the ADA and contact the Office of the General Counsel or Campus Legal Counsel with any questions.
Records
Your institution must maintain information about reasonable accommodations, medical records and inquiries in a confidential file separate from the general personnel files. You should not disclose information in this confidential file to anyone other than the disabled employee without the approval of the Office of the General Counsel or Campus Legal Counsel.