4.4 CONDUCT PROHIBITED
4.401 Conduct Related to Terms, Conditions, and Privileges of Employment. An employer may not discriminate against a qualified individual on the basis of a disability in its (i) job application procedures; (ii) hiring, advancement, or discharge of employees; (iii) employee compensation; (iv) job training; or (v) other terms, conditions, and privileges of employment. 129 Under the ADA, a plaintiff can claim he or she suffered an adverse employment action based on, among other things, an actual termination or a constructive discharge. 130 In addition, an employer may not retaliate against a qualified applicant on the basis of a disability.
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4.402 Classes of Conduct Prohibited. Eight classes of discriminatory conduct are explicitly prohibited: 131
| 1. | Limiting, segregating, or classifying job applicants or employees in a way that adversely affects employment opportunities or status; | |
| 2. | Participating in any contractual or other relationship (for example, with a labor union or employee referral service) that has the effect of discriminating against disabled employees or applicants; | |
| 3. | Using standards, criteria, or methods of administration that have the effect of discriminating against disabled employees or applicants or that would perpetuate such discrimination; | |
| 4. | Withholding employment opportunities or benefits from an applicant or employee because of that individual's relationship or association with a disabled person; | |
| 5. | Failing to make reasonable accommodation for the known physical or mental limitations of an applicant or employee, unless making such an accommodation would impose an undue hardship on the employer; | |
| 6. | Using tests or selection criteria that have a disparate impact on disabled persons, unless the tests or criteria are shown to be job-related and are consistent with business necessity; | |
| 7. | Failing to select and administer tests so they accurately measure the skills for which the test is being given rather than reflecting any deficiencies in test-taking skills due to the individual's disability; and |
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| 8. | Creating a hostile work environment for disabled employees by harassing them or ordering them to perform jobs beyond their physical abilities. 132 |
4.403 Reasonable Accommodation.
A. In General. An employer must provide reasonable accommodation that enables a qualified applicant with a disability to (i) be considered for the position he or she desires; (ii) perform the essential functions of that position; or (iii) enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 133 In Hill v. Associates for Renewal in Educ., Inc., 134 the D.C. Circuit Court of Appeals found that an employer must also provide a reasonable accommodation which enables an employee to perform the essential functions of his or her position without pain. In that case, the D.C. Circuit reversed the lower court's grant of summary judgment, and held that a teacher with a prosthetic leg may have been entitled to a classroom aid to assist in the supervision of his classroom, which would have allowed the teacher to avoid the pain associated with standing for a long period of time. In that case, the court observed that "[a]reasonable jury could conclude that forcing Hill to work with pain when that pain could be alleviated by his requested accommodation violates the ADA." 135
"Reasonable accommodation" may include (i) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (ii) job restructuring, part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of
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equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. 136
To determine the appropriate reasonable accommodation, it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. The interactive process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
An employer is not required to provide an employee with the specific accommodations requested but is only required to provide reasonable accommodations that enable the employee to perform essential functions. 137 "The Americans with Disabilities Act of 1990 "requires a 'reasonable' accommodation, not a perfect one." 138
It is not a reasonable accommodation to ensure that an individual takes medication as prescribed, 139 nor must an employer hire another person simply to reduce the disabled employee's workload. 140
Under the ADA, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a "direct threat." 141 An employer may refuse
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to hire someone based on his or her history of violence or threats of violence if the employer can show that the individual poses a direct threat. To demonstrate that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. 142 In most circumstances, an individual who has attempted suicide does not pose a direct threat. 143
The ADA does not require an employer to provide adjustments or modifications that are primarily for the personal benefit of the individual with a disability. For example, an employer generally would not be required to provide a prosthetic limb, a wheelchair, or eyeglasses. 144
The ADA does not require an employer to accommodate an employee by creating a new position out of whole cloth or by transferring another employee out of a job. 145 Additionally, an employer is not required to assign a disabled employee to alternative employment. 146 However, some cases suggest that an individual will be protected by the ADA even if he or she is not qualified
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to perform the essential functions of his or her job if the employee can be reassigned to a vacant position for which he or she is qualified. 147
With respect to reassignment as a reasonable accommodation, the Eastern District of Virginia, in United States v. Woody, 148 noted that, "[w]here an employer maintains a non-discriminatory policy of hiring the most qualified candidate, it would not ordinarily be reasonable (in the run of cases) to require deviation from that policy in order to accommodate a minimally but lesser qualified disabled applicant." In that case, the court ruled that a deputy sheriff whose disability prevented her from performing the duties of her current position was not entitled to reassignment to a vacant payroll technician position where the deputy sheriff was the least qualified of the four applicants who interviewed for the position. The United States District Court for the District of Maryland recently declined to follow the reasoning of Woody, and ruled that an employee was entitled to "reassignment without competition" with other non-disabled employees. 149 The Fourth Circuit has not squarely addressed the issue of whether an employer must make an exception to its neutral hiring policies or simply allow a disabled person to compete equally with nondisabled persons for a vacant position as a reasonable accommodation, and there is a split among other federal circuits on this issue. 150
A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the
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definition of disability under the "actual disability" prong (section 1630.2(g)(1)(i)), or "record of" prong (paragraph (g)(1)(ii) of this section) but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the "regarded as" prong (section 1630.2(g)(1)(iii)).
"Undue hardship" refers to action requiring significant difficulty or expense considered in light of the following factors:
| 1. | Nature and net cost of accommodation needed; | |
| 2. | Overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of employees at the facility, the effect on expenses and the resources of the facility; | |
| 3. | Overall financial resources of the employer, size of business compared to number of employees, number, type, and location of employer's facilities; and | |
| 4. | Type of operations of the employer, including composition, structure, and functions of the work force and the geographic separateness and administrative or fiscal relationship of the particular facility to the employer overall. 151 |
Evaluating "reasonable accommodation" and "undue hardship" is done on a case-by-case basis. No single factor is determinative. 152 Cost is not
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the only factor. If a proposed accommodation would be disruptive or would change the nature of the employer's business, those factors may be considered. 153
To establish a claim for failure to accommodate, a plaintiff must prove that: (i) the plaintiff was an individual with a disability within the meaning of the ADA; (ii) the employer had reasonable notice of the disability; 154 (iii) with the reasonable accommodation, the plaintiff could perform the essential functions of the position; and (iv) the employer refused to make those accommodations. 155
To establish that an employer failed to provide a reasonable accommodation, a plaintiff must establish that the desire for an accommodation of the disability was communicated to the employer. 156 Once an employee communicates a need for an accommodation, the employer must engage...
