== Site Navigation ==

Main Page Past Shows About Us Show Hosts Comment

== Project Sites ==

Disability Law Lowdown Podcast Disability Law Lowdown Podcast
en Espanol
Disability Law Lowdown Podcast
in ASL Southwest ADA Podcast

This work is licensed under a Creative Commons Attribution - Noncommercial - No Derivative Works 3.0 United States License

[ Listen | Download | Transcript | Printer Friendly Version (New window) ]

You’re listening to the Disability Law Lowdown, Show #5. Here’s your host, Jacquie Brennan.

[music plays]

Jacquie Brennan: Hello and welcome to the Disability Law Lowdown. My name is Jacquie Brennan and I’m your host for today’s program.

In this podcast, Patrick Going, Project Director for the DBTAC Rocky Mountain ADA Center, discusses the role of employees with disabilities in today’s workplace and the implications of compliance with the ADA Title I with Jana Copeland: PhD, Employment Information Specialist with the DBTAC Rocky Mountain ADA Center, in a podcast called “Employment Basics and ADA Primer”.

And now I’m going to turn it over to Patrick Going.

[music plays]

Pat Going: Hello and welcome to the Disability Law Lowdown. Today we are talking with Jana Copeland: from the DBTAC Rocky Mountain ADA Center and we’re going to be addressing some employment issues that Jana will give you some more details on.

I’m Pat Going and I have the pleasure of actually working with Jana. We’re just really pleased to get her insights and make this a podcast that might be real helpful to all of you dealing with employment issues.

Hi, Jana.

Jana Copeland: Hi, Pat. How are you today?

Pat: Well, we’re doing well. So, what are we going to talk about today?

Jana: Today we were going to talk a little bit about ADA basics and employment primer and talk just a little bit about the employment provisions under the Americans with Disabilities Act.

Pat: All right. Have you given this seminar before?

Jana: I could probably do this particular topic in my sleep, actually.

Pat: (laughing) Well, I’ll hand it over to you and, if I may, I’ll probably interject with some questions if some clarification might be needed.

Jana: Sounds good. what’s sort of making this an interesting topic for employers and service providers in the disability field is the fact that we have kind of an interesting dynamic at play in today’s workplace. As the Baby Boomers get older and near retirement age, we’re going to see a large influx of employees with disabilities in today’s workplace. A couple of things are driving this.

As the Baby Boomers near retirement age, we have a lot of folks who simply can’t retire because they can’t afford to retire. Economic conditions over the last few decades, drained pensions, strained retirement funds, and there are certain Baby Boomers who simply can’t retire because they can’t afford to. So they’ll stay in the workplace.

Then we’re also going to have this issue of there are a lot of Baby Boomers, and I actually point to my dad when I talk about this, who quite simply don’t want to retire. They want to stay involved, they want to stay engaged in the workplace, and they’ll keep working long past traditional retirement age.

Those two things are coming together to really point to disability issues being very important for employers because as folks get older things don’t work quite as well. You have folks who are a lot more likely to become disabled and age in place in the workplace. When we have employers that we’ve talked to in the past who say, “I don’t deal with the ADA in my workplace, in my organization, because we don’t have any employees with disabilities” that is pretty much going to change over the next five, ten years as we have folks who are aging in the workplace.

So it’s really important for employers to build disability issues into their diversity initiatives simply because they’re going to have to. It’s a sheer numbers game and the probability is increasing greatly as we have a lot of aging workers.

Pat: I would offer up something else, too, Jana, for our listeners. If people really are interested in getting into some specifics, I know we in this particular office have some PowerPoint graphic representation of some of these things that are going on that we would certainly be willing to share those with anybody who might ask. At the end I’ll go ahead and give our contact information. For any of you who want more details, Jana and I are certainly available.

Jana: As you know, Pat, I’m a bit of a statistics junkie and here’s a statistic for you. In the year 2011, so as of January 1, 2011, just shy of three years from today, we’re actually going to have approximately ten thousand people a day turning sixty-five. If you start to do the multiplication on that, you’re going to have a lot of folks out there in our country who are at typical retirement age at the age of sixty-five. And a lot of those folks are going to stay in the workplace.

Pat: Well, okay. That certainly is a motivator.

Jana: The thing to keep in mind is kind of, I’m all about keeping things simple and really try to demystify the employment provisions of the ADA when I talk with employers because it really isn’t rocket science. A lot of this is common sense. A lot of the compliance is making a good-faith effort to comply with the provisions, but in order to do that you kind of have to have a basic understanding of what those provisions are.

In my mind there are essentially five basic requirements that Title I, or the employment provisions, of the Americans with Disabilities Act require of employers.

The first one is that employers need to give individuals with disabilities who are qualified an equal opportunity to apply for jobs and to work in jobs for which they are qualified. Consequently, once they get that job, there also needs to be equal opportunity to be promoted and to be able to move up through the hierarchy of the organization and have more responsibilities and more opportunities to grow within the organization and their career.

There also needs to be equal access to the benefits and privileges of that employment, whether that’s health insurance benefits or whether that’s participation in the company Christmas party or company holiday party, whether it’s the ability to access ongoing professional development and training that’s relevant to their job. Any of those benefits and privileges needs to make sure that folks with disabilities within that organization have equal access to those.

A real big one that’s emerging in the complaint world is that employers need to make sure that folks with disabilities are also protected from harassment or a hostile work environment because we all want to be comfortable working in the organization, in the environment in which we’re placed. Part of that is making sure we don’t have to face undue hardship or harassment based on our disability or any other minority status.

Then the other big requirement that the ADA has is that employers are required to provide what are called reasonable accommodations to help someone with a disability enjoy equal employment opportunity. We’re going to be talking a lot more about reasonable accommodations in an upcoming podcast, but in general those accommodations are any modification or adjustment to the work environment, company policies, practices or procedures, or the job itself that allow someone with a disability to do their jobs. It’s a really broad category and it includes lots of different things, but that’s just sort of accommodation in a nutshell.

Pat: That sounds real basic, those five basic principles. I like the fact that you’ve really underscored that this is for folks who are qualified for the job and you’re talking about equal opportunity.

Jana: Absolutely! I think it’s important, just as important, to talk a little bit about what the ADA is, but also what the ADA employment provisions are not. You raised a really important issue, Pat, and the fact of the matter is that when we’re talking about the ADA employment provisions we’re not talking about affirmative job action. It’s all about allowing employers to hire, fire and promote the most qualified, deserving individual regardless if they have a disability or not. And that’s the real key. It’s not saying that an employer has to hire someone with a disability, they just can’t discriminate against that individual in their employment decisions.

The other key thing to keep in mind, Pat, is there are specific employers that have responsibilities under the Americans with Disabilities Act Title I. The biggest category is private employers with fifteen or more employees. Therefore the ADA does have a threshold and those small companies with less than fifteen employees are not going to have responsibilities under Title I.

It is important to keep in mind, though, to check with experts in your state because certain state statutes do extend ADA-type coverages, civil rights protections to individuals with disabilities in organizations smaller than fifteen. So it’s important to access the resources in your state to find out specific state law that may apply.

The other big category for employers to have ADA responsibility is all state and local government entities regardless of size are going to have ADA responsibilities under Title I. The other big one is employment agencies, your staffing agencies, your temporary, your job placement organizations, they also need to meet those five basic requirements of Title I, as well. And then if you’re dealing with union situations, both labor unions and joint labor-management committees, also need to meet basic requirements under the Americans with Disabilities Act.

In general, it’s important to keep in mind that when you’re talking about the ADA’s employment provisions, you’re basically saying it’s unlawful to discriminate against a qualified individual with a disability in regard to all aspects of employment. That’s everything from the job application process, the hiring process, once they actually come work for you the promotion, discharge, compensations, benefits, training, any area or any aspect that falls under that large umbrella label of employment is going to be covered under the Americans with Disabilities Act.

Pat: And I suspect, as we have really seen this play out, that it’s the existing employees who reach age forty and all of a sudden have had an accident or who have contracted a particular disease, that find themselves with a disability as opposed to just the newly hired.

Jana: Absolutely, and what we see with U.S. Equal Opportunity Commission is that the vast majority of ADA-related complaints that are coming in are actually from existing employees who are having issues whether it’s with requesting reasonable accommodations, discharge, compensation, those kinds of issues. But definitely these are issues dealing with existing employees, not just folks walking off the street to apply for jobs.

Pat: Okay.

Jana: The other thing to keep in mind, Pat, and I try to keep highlighting this as we’re chatting today, deals with that label of “qualified” that we mentioned before. The Americans with Disabilities Act does recognize business reality. And one thing that it recognizes is that not only does someone with a disability have protection under the ADA because they have a disability and they meet the definition of disability, they also need to be qualified for the job for which they are applying.

In order to be considered qualified they need to meet two parameters. The first one is that they do need to satisfy the skill, experience, education and other job-related requirements of the position for which they are either applying or that they are already doing. That can be everything from education to certifications to past work experience, anything that usually falls under a job description of, you know, basic qualifications or “must be able to”.

The other thing to keep in mind in order to be considered qualified is that the individual does also need to be able to perform the essential job functions with or without reasonable job accommodation. So not only do they need to be able to meet the requirements of the job on paper with those skills, experience and education requirements, but they also need to be able to actually do the job for which they are being hired or promoted into.

And when you’re thinking about what that means, can they perform the essential job function, those functions are essentially any fundamental job duties of the employment position. It’s not going to include the marginal or peripheral job functions, the extra stuff, the “other duties as assigned” that we get from positions. It’s those core, primary tasks that that position was created to perform. On average, we’re talking about four to seven per position in broad categories.

And the other thing, Pat, to keep in mind about essential job functions is that a lot of folks fall into a trap with this because when we look at job descriptions, oftentimes job descriptions are so specific they actually kind of distort essential functions a little bit. Because essential functions essentially do this: it specifies what needs to be done, not how it should be done.

A real common one that’s out there is “must be able to lift x amount of pounds” and that is actually specifying how it should be done. You’re asking someone to lift something with a certain amount of poundage. But the fact of the matter is there is a lot of assistive technology out there, there’s a lot of tools in the workplace that actually allow someone to be able to move an object from Point A to Point B without lifting. That’s a hand truck, a hand dolly, moving smaller pieces of the poundage. There’re a lot of things that can be done that still perform that essential function of moving objects from Point A to Point B. That’s what needs to be done, not necessarily how they’re doing it which would be through lifting.

Pat: I know, Jana, over the years we have found the risk managers and also people who work with workers’ comp who really relate to what you just said, not how but what because other things can come into play.

Jana: Absolutely and we all want a little autonomy in how we do our jobs. We all want a little bit of say in how we spend our day in the workplace. Part of that is figuring out what needs to be done and adapting our own strategies to complete those tasks in the workplace.

Pat: Exactly. What are some of the resources out there that you would highlight?

Jana: Well, I’m a little bit biased, but there’s this great organization out there called the Disability and Business Technical Assistance Center or your regional DBTAC ADA centers. We are available across the country to provide information, materials and training on the Americans with Disabilities Act including specific training related to the employment provisions of the ADA.

You can get in touch with your local DBTAC, your regional DBTAC either by calling 800-949-4232 again that’s 800-949-4232, that’s both a voice and a TTY line. Or you can visit and find contact information for your local ADA center at our website which is www.adata.org.

We have another initiative that we’ve launched through the national DBTAC program which is our ADA Training Center. It is a one-stop shop for all of your disability-related and ADA-related training that the DBTACs are doing as well as some of our partners. You can visit that site at www.adacourse.org.

There are other great organizations out there like the Job Accommodation Network that offers information and materials and training on accommodation-related issues. You can visit their website at www.jan.wvu.edu. They have got fabulous resources available on their website for folks to check out.

Pat: “wvu” is West Virginia University.

Jana: West Virginia, which is where Job Accommodation Network is housed.

Pat: Just to help the listeners.

Jana: Absolutely. Their 800 number is 800-526-7234. Again, that’s 800-526-7234. And again that’s both a voice and a TTY line.

Pat: All right. I know that in our office here we have certainly liked the Department of Education’s “Disability Employment 101” the ADAportal.org is available, so a myriad of good resources.

Unfortunately, I think we’re just about out of time. Jana, was there anything you thought of that you wanted to make sure you mentioned before we sign off here?

Jana: I think this was at least a good introduction to the real basics of the employment provisions. If you’re interested in more detailed information, definitely give your local DBTAC a call and either schedule some training or ask for some additional materials. But this is at least a good start to at least get the wheels turning, so to speak, on the employment provisions of the Americans with Disabilities Act.

Pat: Jana, thank you so much. This is a big topic and I really appreciate your laying it out in a very straightforward way.

Jana: I look forward to upcoming podcasts on employment-related topics over the next few months.

Pat: Sounds great! we’ll be talking to you then, hopefully.

Jana: All right. Thank you, Pat. Bye bye.

Pat: Good bye.

[music plays]

Jacquie Brennan: If you have any questions or would like more information on this topic you can call us at 1-800-949-4232. And don’t forget to visit our website at dll.ada-podcast.com where you can find a transcript of this show and also an archive of our past episodes and their transcripts.

The Disability Law Lowdown wants to be sure to thank it’s funder for this program, The National Institutes of Disability Research and Rehabilitation, NIDRR.

You can contact the ADA centers, once again, by calling 1-800-949-4232 and find this podcast and others at iTunes. Thanks again for listening.





The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.