HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/FEDERAL/ADAEEOC7.ASC

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Section 1630.5 Limiting, Segregating and Classifying

This provision and the several provisions that follow describe
various specific forms of discrimination that are included within
the general prohibition of section 1630.4. Covered entities are
prohibited from restricting the employment opportunities of
qualified individuals with disabilities on the basis of
stereotypes and myths about the individual's disability. Rather,
the capabilities of qualified individuals with disabilities must
be determined on an individualized, case by case basis. Covered
entities are also prohibited from segregating qualified employees
with disabilities into separate work areas or into separate lines
of advancement.

Thus, for example, it would be a violation of this part for an
employer to limit the duties of an employee with a disability
based on a presumption of what is best for an individual with
such a disability, or on a presumption about the abilities of an
individual with such a disability.  It would be a violation of
this part for an employer to adopt a separate track of job
promotion or progression for employees with disabilities based on
a presumption that employees with disabilities are uninterested
in, or incapable of, performing particular jobs.  Similarly, it
would be a violation for an employer to assign or reassign (as a
reasonable accommodation) employees with disabilities to one
particular office or installation, or to require that employees
with disabilities only use particular employer provided non-work
facilities such as segregated break-rooms, lunch rooms, or
lounges.  It would also be a violation of this part to deny
employment to an applicant or employee with a disability based on
generalized fears about the safety of an individual with such a
disability, or based on generalized assumptions about the
absenteeism rate of an individual with such a disability.

In addition, it should also be noted that this part is intended
to require that employees with disabilities be accorded equal
access to whatever health insurance coverage the employer
provides to other employees.  This part does not, however, affect
pre-existing condition clauses included in health insurance
policies offered by employers. Consequently, employers may
continue to offer policies that contain such clauses, even if
they adversely affect individuals with disabilities, so long as
the clauses are not used as a subterfuge to evade the purposes of
this part.

So, for example, it would be permissible for an employer to offer
an insurance policy that limits coverage for certain procedures
or treatments to a specified number per year. Thus, if a health
insurance plan provided coverage for five blood transfusions a
year to all covered employees, it would not be discriminatory to
offer this plan simply because a hemophiliac employee may require
more than five blood transfusions annually.  However, it would
not be permissible to limit or deny the hemophiliac employee
coverage for other procedures, such as heart surgery or the
setting of a broken leg, even though the plan would not have to
provide coverage for the additional blood transfusions that may
be involved in these procedures. Likewise, limits may be placed
on reimbursements for certain procedures or on the types of drugs
or procedures covered (e.g. limits on the number of permitted
X-rays or non-coverage of experimental drugs or procedures), but
that limitation must be applied equally to individuals with and
without disabilities. See Senate Report at 28-29; House Labor
Report at 58-59; House Judiciary Report at 36.

Leave policies or benefit plans that are uniformly applied do not
violate this part simply because they do not address the special
needs of every individual with a disability. Thus, for example,
an employer that reduces the number of paid sick leave days that
it will provide to all employees, or reduces the amount of
medical insurance coverage that it will provide to all employees,
is not in violation of this part, even if the benefits reduction
has an impact on employees with disabilities in need of greater
sick leave and medical coverage. Benefits reductions adopted for
discriminatory reasons are in violation of this part. See
Alexander v. Choate, 469 U.S. 287 (1985).  See Senate Report at
85; House Labor Report at 137. (See also, the discussion at
section 1630.16(f) Health Insurance, Life Insurance, and Other
Benefit Plans).

Section 1630.6 Contractual or Other Arrangements

An employer or other covered entity may not do through a
contractual or other relationship what it is prohibited from
doing directly. This provision does not affect the determination
of whether or not one is a "covered entity" or "employer" as
defined in section 1630.2.

This provision only applies to situations where an employer or
other covered entity has entered into a contractual relationship
that has the effect of discriminating against its own employees
or applicants with disabilities. Accordingly, it would be a
violation for an employer to participate in a contractual
relationship that results in discrimination against the
employer's employees with disabilities in hiring, training,
promotion, or in any other aspect of the employment relationship.
This provision applies whether or not the employer or other
covered entity intended for the contractual relationship to have
the discriminatory effect.

Part 1630 notes that this provision applies to parties on either
side of the contractual or other relationship. This is intended
to highlight that an employer whose employees provide services to
others, like an employer whose employees receive services, must
ensure that those employees are not discriminated against on the
basis of disability. For example, a copier company whose service
representative is a dwarf could be required to provide a
stepstool, as a reasonable accommodation, to enable him to
perform the necessary repairs. However, the employer would not be
required, as a reasonable accommodation, to make structural
changes to its customer's inaccessible premises.

The existence of the contractual relationship adds no new
obligations under part 1630. The employer, therefore, is not
liable through the contractual arrangement for any discrimination
by the contractor against the contractor's own employees or
applicants, although the contractor, as an employer, may be
liable for such discrimination.

An employer or other covered entity, on the other hand, cannot
evade the obligations imposed by this part by engaging in a
contractual or other relationship. For example, an employer
cannot avoid its responsibility to make reasonable accommodation
subject to the undue hardship limitation through a contractual
arrangement. See Conference Report at 59; House Labor Report at
59-61; House Judiciary Report at 36-37.

To illustrate, assume that an employer is seeking to contract
with a company to provide training for its employees. Any
responsibilities of reasonable accommodation applicable to the
employer in providing the training remain with that employer even
if it contracts with another company for this service.  Thus, if
the training company were planning to conduct the training at an
inaccessible location, thereby making it impossible for an
employee who uses a wheelchair to attend, the employer would have
a duty to make reasonable accommodation unless to do so would
impose an undue hardship.  Under these circumstances, appropriate
accommodations might include (1) having the training company
identify accessible training sites and relocate the training
program; (2) having the training company make the training site
accessible; (3) directly making the training site accessible or
providing the training company with the means by which to make
the site accessible; (4) identifying and contracting with another
training company that uses accessible sites; or (5) any other
accommodation that would result in making the training available
to the employee.

As another illustration, assume that instead of contracting with
a training company, the employer contracts with a hotel to host a
conference for its employees. The employer will have a duty to
ascertain and ensure the accessibility of the hotel and its
conference facilities.  To fulfill this obligation the employer
could, for example, inspect the hotel first-hand or ask a local
disability group to inspect the hotel.  Alternatively, the
employer could ensure that the contract with the hotel specifies
it will provide accessible guest rooms for those who need them
and that all rooms to be used for the conference, including
exhibit and meeting rooms, are accessible. If the hotel breaches
this accessibility provision, the hotel may be liable to the
employer, under a non-ADA breach of contract theory, for the cost
of any accommodation needed to provide access to the hotel and
conference, and for any other costs accrued by the employer. (In
addition, the hotel may also be independently liable under title
III of the ADA). However, this would not relieve the employer of
its responsibility under this part nor shield it from charges of
discrimination by its own employees. See House Labor Report at
40; House Judiciary Report at 37.

Section 1630.8 Relationship or Association with an Individual with
a Disability

This provision is intended to protect any qualified individual,
whether or not that individual has a disability, from
discrimination because that person is known to have an
association or relationship with an individual who has a known
disability. This protection is not limited to those who have a
familial relationship with an individual with a disability.

To illustrate the scope of this provision, assume that a
qualified applicant without a disability applies for a job and
discloses to the employer that his or her spouse has a
disability. The employer thereupon declines to hire the applicant
because the employer believes that the applicant would have to
miss work or frequently leave work early in order to care for the
spouse. Such a refusal to hire would be prohibited by this
provision. Similarly, this provision would prohibit an employer
from discharging an employee because the employee does volunteer
work with people who have AIDS, and the employer fears that the
employee may contract the disease.

This provision also applies to other benefits and privileges of
employment. For example, an employer that provides health
insurance benefits to its employees for their dependents may not
reduce the level of those benefits to an employee simply because
that employee has a dependent with a disability. This is true
even if the provision of such benefits would result in increased
health insurance costs for the employer.

It should be noted, however, that an employer need not provide
the applicant or employee without a disability with a reasonable
accommodation because that duty only applies to qualified
applicants or employees with disabilities. Thus, for example, an
employee would not be entitled to a modified work schedule as an
accommodation to enable the employee to care for a spouse with a
disability. See Senate Report at 30; House Labor Report at 61-62;
House Judiciary Report at 38-39.

Section 1630.9 Not Making Reasonable Accommodation

The obligation to make reasonable accommodation is a form of non-
discrimination. It applies to all employment decisions and to the
job application process. This obligation does not extend to the
provision of adjustments or modifications that are primarily for
the personal benefit of the individual with a disability. Thus, if
an adjustment or modification is job-related, e.g., specifically
assists the individual in performing the duties of a particular
job, it will be considered a type of reasonable accommodation. On
the other hand, if an adjustment or modification assists the
individual throughout his or her daily activities, on and off the
job, it will be considered a personal item that the employer is not
required to provide. Accordingly, an employer would generally not
be required to provide an employee with a disability with a
prosthetic limb, wheelchair, or eyeglasses. Nor would an employer
have to provide as an accommodation any amenity or convenience that
is not job-related, such as a private hot plate, hot pot or
refrigerator that is not provided to employees without
disabilities. See Senate Report at 31; House Labor Report at 62.

It should be noted, however, that the provision of such items may
be required as a reasonable accommodation where such items are
specifically designed or required to meet job-related rather than
personal needs. An employer, for example, may have to provide an
individual with a disabling visual impairment with eyeglasses
specifically designed to enable the individual to use the office
computer monitors, but that are not otherwise needed by the
individual outside of the office.

The term "supported employment," which has been applied to a wide
variety of programs to assist individuals with severe
disabilities in both competitive and non-competitive employment,
is not synonymous with reasonable accommodation. Examples of
supported employment include modified training materials,
restructuring essential functions to enable an individual to
perform a job, or hiring an outside professional ("job coach") to
assist in job training.  Whether a particular form of assistance
would be required as a reasonable accommodation must be
determined on an individualized, case by case basis without
regard to whether that assistance is referred to as "supported
employment." For example, an employer, under certain
circumstances, may be required to provide modified training
materials or a temporary "job coach" to assist in the training of
a qualified individual with a disability as a reasonable
accommodation.  However, an employer would not be required to
restructure the essential functions of a position to fit the
skills of an individual with a disability who is not otherwise
qualified to perform the position, as is done in certain
supported employment programs.  See 34 CFR part 363. It should be
noted that it would not be a violation of this part for an
employer to provide any of these personal modifications or
adjustments, or to engage in supported employment or similar
rehabilitative programs.

The obligation to make reasonable accommodation applies to all
services and programs provided in connection with employment, and
to all non-work facilities provided or maintained by an employer
for use by its employees. Accordingly, the obligation to
accommodate is applicable to employer sponsored placement or
counseling services, and to employer provided cafeterias,
lounges, gymnasiums, auditoriums, transportation and the like.

The reasonable accommodation requirement is best understood as a
means by which barriers to the equal employment opportunity of an
individual with a disability are removed or alleviated. These
barriers may, for example, be physical or structural obstacles
that inhibit or prevent the access of an individual with a
disability to job sites, facilities or equipment. Or they may be
rigid work schedules that permit no flexibility as to when work
is performed or when breaks may be taken, or inflexible job
procedures that unduly limit the modes of communication that are
used on the job, or the way in which particular tasks are
accomplished.

The term "otherwise qualified" is intended to make clear that the
obligation to make reasonable accommodation is owed only to an
individual with a disability who is qualified within the meaning
of section 1630.2(m) in that he or she satisfies all the skill,
experience, education and other job-related selection criteria.
An individual with a disability is "otherwise qualified," in
other words, if he or she is qualified for a job, except that,
because of the disability, he or she needs a reasonable
accommodation to be able to perform the job's essential
functions.

For example, if a law firm requires that all incoming lawyers
have graduated from an accredited law school and have passed the
bar examination, the law firm need not provide an accommodation
to an individual with a visual impairment who has not met these
selection criteria. That individual is not entitled to a
reasonable accommodation because the individual is not "otherwise
qualified" for the position.

On the other hand, if the individual has graduated from an
accredited law school and passed the bar examination, the
individual would be "otherwise qualified." The law firm would
thus be required to provide a reasonable accommodation, such as a
machine that magnifies print, to enable the individual to perform
the essential functions of the attorney position, unless the
necessary accommodation would impose an undue hardship on the law
firm. See Senate Report at 33-34; House Labor Report at 64-65.

The reasonable accommodation that is required by this part should
provide the qualified individual with a disability with an equal
employment opportunity. Equal employment opportunity means an
opportunity to attain the same level of performance, or to enjoy
the same level of benefits and privileges of employment as are
available to the average similarly situated employee without a
disability. Thus, for example, an accommodation made to assist an
employee with a disability in the performance of his or her job
must be adequate to enable the individual to perform the
essential functions of the relevant position. The accommodation,
however, does not have to be the "best" accommodation possible,
so long as it is sufficient to meet the job-related needs of the
individual being accommodated.  Accordingly, an employer would
not have to provide an employee disabled by a back impairment
with a state-of- the art mechanical lifting device if it provided
the employee with a less expensive or more readily available
device that enabled the employee to perform the essential
functions of the job. See Senate Report at 35; House Labor Report
at 66; see also Carter v. Bennett, 840 F.2d 63 (D.C. Cir. 1988).

Employers are obligated to make reasonable accommodation only to
the physical or mental limitations resulting from the disability
of a qualified individual with a disability that are known to the
employer. Thus, an employer would not be expected to accommodate
disabilities of which it is unaware. If an employee with a known
disability is having difficulty performing his or her job, an
employer may inquire whether the employee is in need of a
reasonable accommodation. In general, however, it is the
responsibility of the individual with a disability to inform the
employer that an accommodation is needed. When the need for an
accommodation is not obvious, an employer, before providing a
reasonable accommodation, may require that the individual with a
disability provide documentation of the need for accommodation.
See Senate Report at 34; House Labor Report at 65.

Process of Determining the Appropriate Reasonable Accommodation

Once a qualified individual with a disability has requested
provision of a reasonable accommodation, the employer must make a
reasonable effort to determine the appropriate accommodation. The
appropriate reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and
the qualified individual with a disability.  Although this
process is described below in terms of accommodations that enable
the individual with a disability to perform the essential
functions of the position held or desired, it is equally
applicable to accommodations involving the job application
process, and to accommodations that enable the individual with a
disability to enjoy equal benefits and privileges of employment.
See Senate Report at 34-35; House Labor Report at 65-67.

When a qualified individual with a disability has requested a
reasonable accommodation to assist in the performance of a job,
the employer, using a problem solving approach, should:

     (1)  analyze the particular job involved and determine its
     purpose and essential functions;

     (2)  consult with the individual with a disability to
     ascertain the precise job-related limitations imposed by the
     individual's disability and how those limitations could be
     overcome with a reasonable accommodation;

     (3)  in consultation with the individual to be accommodated,
     identify potential accommodations and assess the effectiveness
     each would have in enabling the individual to perform the
     essential functions of the position; and

     (4)  consider the preference of the individual to be
     accommodated and select and implement the accommodation that
     is most appropriate for both the employee and the employer.

In many instances, the appropriate reasonable accommodation may
be so obvious to either or both the employer and the qualified
individual with a disability that it may not be necessary to
proceed in this step-by-step fashion.  For example, if an
employee who uses a wheelchair requests that his or her desk be
placed on blocks to elevate the desktop above the arms of the
wheelchair and the employer complies, an appropriate
accommodation has been requested, identified, and provided
without either the employee or employer being aware of having
engaged in any sort of "reasonable accommodation process."

However, in some instances neither the individual requesting the
accommodation nor the employer can readily identify the
appropriate accommodation. For example, the individual needing
the accommodation may not know enough about the equipment used by
the employer or the exact nature of the work site to suggest an
appropriate accommodation. Likewise, the employer may not know
enough about the individual's disability or the limitations that
disability would impose on the performance of the job to suggest
an appropriate accommodation. Under such circumstances, it may be
necessary for the employer to initiate a more defined problem
solving process, such as the step-by-step process described
above, as part of its reasonable effort to identify the
appropriate reasonable accommodation.

This process requires the individual assessment of both the
particular job at issue, and the specific physical or mental
limitations of the particular individual in need of reasonable
accommodation. With regard to assessment of the job, "individual
assessment" means analyzing the actual job duties and determining
the true purpose or object of the job. Such an assessment is
necessary to ascertain which job functions are the essential
functions that an accommodation must enable an individual with a
disability to perform.

After assessing the relevant job, the employer, in consultation
with the individual requesting the accommodation, should make an
assessment of the specific limitations imposed by the disability
on the individual's performance of the job's essential functions.
This assessment will make it possible to ascertain the precise
barrier to the employment opportunity which, in turn, will make
it possible to determine the accommodation(s) that could
alleviate or remove that barrier.

If consultation with the individual in need of the accommodation
still does not reveal potential appropriate accommodations, then
the employer, as part of this process, may find that technical
assistance is helpful in determining how to accommodate the
particular individual in the specific situation. Such assistance
could be sought from the Commission, from state or local
rehabilitation agencies, or from disability constituent
organizations. It should be noted, however, that, as provided in
section 1630.9(c) of this part, the failure to obtain or receive
technical assistance from the federal agencies that administer
the ADA will not excuse the employer from its reasonable
accommodation obligation.

Once potential accommodations have been identified, the employer
should assess the effectiveness of each potential accommodation
in assisting the individual in need of the accommodation in the
performance of the essential functions of the position.  If more
than one of these accommodations will enable the individual to
perform the essential functions or if the individual would prefer
to provide his or her own accommodation, the preference of the
individual with a disability should be given primary
consideration. However, the employer providing the accommodation
has the ultimate discretion to choose between effective
accommodations, and may choose the less expensive accommodation
or the accommodation that is easier for it to provide. It should
also be noted that the individual's willingness to provide his or
her own accommodation does not relieve the employer of the duty
to provide the accommodation should the individual for any reason
be unable or unwilling to continue to provide the accommodation.

Reasonable Accommodation Process Illustrated

The following example illustrates the informal reasonable
accommodation process. Suppose a Sack Handler position requires
that the employee pick up fifty pound sacks and carry them from
the company loading dock to the storage room, and that a sack
handler who is disabled by a back impairment requests a
reasonable accommodation. Upon receiving the request, the
employer analyzes the Sack Handler job and determines that the
essential function and purpose of the job is not the requirement
that the job holder physically lift and carry the sacks, but the
requirement that the job holder cause the sack to move from the
loading dock to the storage room.

The employer then meets with the sack handler to ascertain
precisely the barrier posed by the individual's specific
disability to the performance of the job's essential function of
relocating the sacks. At this meeting the employer learns that
the individual can, in fact, lift the sacks to waist level, but
is prevented by his or her disability from carrying the sacks
from the loading dock to the storage room. The employer and the
individual agree that any of a number of potential
accommodations, such as the provision of a dolly, hand truck, or
cart, could enable the individual to transport the sacks that he
or she has lifted.

Upon further consideration, however, it is determined that the
provision of a cart is not a feasible effective option. No carts
are currently available at the company, and those that can be
purchased by the company are the wrong shape to hold many of the
bulky and irregularly shaped sacks that must be moved. Both the
dolly and the hand truck, on the other hand, appear to be
effective options.  Both are readily available to the company,
and either will enable the individual to relocate the sacks that
he or she has lifted.  The sack handler indicates his or her
preference for the dolly.  In consideration of this expressed
preference, and because the employer feels that the dolly will
allow the individual to move more sacks at a time and so be more
efficient than would a hand truck, the employer ultimately
provides the sack handler with a dolly in fulfillment of the
obligation to make reasonable accommodation.

Section 1630.9(b).

This provision states that an employer or other covered entity
cannot prefer or select a qualified individual without a
disability over an equally qualified individual with a disability
merely because the individual with a disability will require a
reasonable accommodation. In other words, an individual's need
for an accommodation cannot enter into the employer's or other
covered entity's decision regarding hiring, discharge, promotion,
or other similar employment decisions, unless the accommodation
would impose an undue hardship on the employer. See House Labor
Report at 70.