chapter thirteen disability discrimination mcgraw-hill/irwin © 2004 the mcgraw-hill companies,...
TRANSCRIPT
McGraw-Hill/Irwin © 2004 The McGraw-Hill Companies, Inc., All Rights Reserved.
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Myths About DisabilityDiscrimination
1. A question on an application form about specific disabilities of an applicant is not improper
2. If an employer would have to alter the working environment to accommodate a disabled applicant or employee, that person is not qualified for the position
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3. Employees with disabilities have many more rights to their jobs than do disabled applicants
4. Individuals with disabilities generally are incapable of performing the jobs for which they apply
5. If someone does not have a disability but others believe she or he does, that person is still not protected against discrimination
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6. Individuals with disabilities only create liability for employers and are not good, productive employees
7. If an applicant with a disability applies for a job, the employer must hire that applicant
8. HIV status is not a disability under the ADA
9. Only physical disabilities are protected under the ADA
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10. Employers must give any and all accommodations requested by employees with disabilities
11. If an applicant needs a reasonable accommodation for a pre-employment test, that applicant is not qualified
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Americans with Disabilities Act of 1990 prohibits discrimination in employment based on disability
Vocational Rehabilitation Act of 1973 prohibits discrimination based on disability in receipt of benefits under any program receiving Federal funds
Statutory Basis
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Disproving Old Barriers
Groups with disabilities not covered under Title VII
Many employers refused to hire disabled applicants
Disabled applicants had to prove themselves far more than those not disabled
Employers should strive to be “disability-blind” and evaluate based on competence
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Regulation
Vocational Rehabilitation Act of 1973 – Applies to government and any firm
doing business with government– Section 503 requires affirmative action
on the part of federal contractors and agencies
– Did not protect private sector employees
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Americans with Disabilities Act (ADA)– Became effective in 1992– Applies Rehabilitation Act standards to
most private employers– Protects disabled from three types of
barriers Intentional discrimination Neutral standards with disparate impact Discrimination based on barriers that could
be overcome with accommodation
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– Employers must be proactive– To claim discrimination, employee must
prove That he or she is disabled That he or she is otherwise qualified That any accommodation required is
reasonable That he or she suffered an adverse
employment decision
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ADA defines disability as a physical or mental impairment that substantially limits one of more major life activities of an individual; a record of having such an impairment; being regarded as having such an impairment– Mental impairments and contagious
diseases may be included– EEOC gives guidelines for “major life
activity” and “substantially limits”– Including perception of impairment
protects disabled employees from prejudice
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Disabled employee must be otherwise qualified for position– Must be able to perform the essential
(fundamental) functions of the position– Employee may require and request
reasonable accommodation The removal of unnecessary restrictions or
barriers Does not place undue hardship on
employer
Disability harassment is also prohibited under ADA
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Effect on the Actions of Employers
Potential liability of employer based upon tort theory– Employer has a duty to protect
employees– Employer must not disclose
unnecessary medical information– Employers engage in genetic testing at
their own risk
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ManagementConsiderations
Medical exams permitted only after offer of employment and must be required of all employees in that position
Educate managers to become aware of the needs of the disabled
Internal Revenue Service offers tax credits to employers who hire disabled employees
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Don’t assume physical or intellectual limitations of disabled employee or applicant
Explore all possible reasonable accommodations for otherwise qualified employees or applicants
Document all discussions Be proactive and flexible Review application materials and job
descriptions to ensure no inappropriate questions or requirements