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Under the Americans with Disabilities Act (ADA), it is illegal to
discriminate against an individual with a disability in any opportunity,
benefit, or privilege of employment. However, this does not mean that a disabled
person must automatically be considered for any opening, promotion, or other
opportunity that occurs. Basically, the disabled person must be "otherwise
qualified" to perform the job, despite his limitation, to receive the
protection of the ADA.
To be otherwise qualified, one must be able to perform the essential job
functions, either with or without accommodation. A disabled person who cannot
perform all of the essential functions of a job is not a qualified person with a
disability even if the inability to perform certain essential functions is the
result of the disability. If the disability prevents him from performing an
essential job function, and there is no reasonable accommodation to compen-sate
for it, the person is not entitled to ADA protection.
However, if a disability prevents a person from performing an essential
job function, this does not mean that the employer's
responsibility is finished. The employer needs to explore possible
accommodations to determine if there is a reasonable accommodation that will
allow the disabled person to perform all the essential job functions. If no
reasonable accommodation is found, then the person no longer is a qualified
person with a disability since he or she would not be able to perform the
essential job functions.
If a disabled person cannot perform the essential job functions, either with
or without accommodation, then there is no protection under the ADA. The key
word, however, is "essential." The essential job functions are those
duties that the job was created to perform and that must be performed. In most
jobs, employees will also perform marginal duties that are a benefit to the
employer but are not an essential part of the job. It is a violation of the ADA
to reject a disabled applicant because of her inability to perform any of these
marginal duties. An employer may only evaluate a person's ability to perform the
essential duties and not the marginal duties. In determining if a person can
perform the essential job duties, the employer cannot require an applicant with
a disability to take tests or demonstrate skills unless the same is required of
all other applicants.
The ADA does not try to second guess the standards set by an employer as long
as the standards are applied consistently to all employees performing the same
job. One element of being otherwise qualified is meeting the entry-level
requirements for a job. Almost all positions have minimum level requirements
that must be met before a person will be  considered for the job. These
may include specific levels of education, special licenses or certifications, or
specific lengths of prior experience. Failure to meet these requirements means
the person, whether disabled or not, is not qualified for the job and does not
have to be considered.
The employer needs to be cautious in setting only prerequisites that are
realistic and consistent with business necessity. If, for example, an employer
has a job requirement that tends to eliminate a greater proportion of
individuals with disabilities than it does other applicants, the employer may be
required to prove that this requirement is consistent with business necessity.
It is also a violation of the ADA to set higher prerequisite standards for
disabled applicants than for other applicants. In addition, an employer should
not ask disabled applicants questions about their qualifications that are not
asked of all other applicants.
Once hired, an employer can hold a person with a disability to the same
performance standards as all other employees. Employers need to remember that
the goal of the ADA is to provide equal employment opportunities to persons with
disabilities. The employer needs to look at what the person can do, and not have
preconceived ideas about limitations of disabled applicants and
employees.
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