Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/eeoc/adaeeoc7.ws

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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