Americans with Disabilities Act (ADA): complete HR guide

The Americans with Disabilities Act (ADA) is a federal law that protects individuals from discrimination in public places. In terms of the workplace, the ADA requires employers to provide reasonable accommodations for any employees with disabilities. Given that, according to the CDC, 61 million adults in the United States live with a disability, it’s very likely that there are people with disabilities working at your company. This means that it’s vital that you understand all the provisions of this law so you can make these accommodations where necessary. 

In this complete HR guide, we are going to discuss what the Americans with Disabilities Act is and how it affects you as an employer. We will also explain what the terms reasonable accommodation and undue hardships mean, and how you can prevent employment discrimination based on disability in your business and ensure ADA compliance. 

Brief history of the Americans with Disabilities Act (ADA) 

The Americans with Disabilities Act (ADA) was signed into law on July 26th, 1990, by President George H. W. Bush. The federal civil rights law was created to protect people with disabilities from discrimination in all areas of public life. This includes access to schools, jobs, and transportation, and any other private place open to the public such as restaurants and theaters. 

Essentially, the ADA prohibits discrimination on the basis of disability just as other civil rights laws prohibit discrimination on the basis of race, color, sex, national origin, age, and religion. It ensures that people with disabilities have the same opportunities as everyone else in terms of employment, the purchase of goods and services, and the ability to participate in state and local government programs.

Americans with Disabilities Act timeline

The Americans with Disabilities Act wasn’t the first step towards protecting people with disabilities. In fact, the Act was the culmination of many years of work:

• Section 504 of the 1973 Rehabilitation Act was the first law in US history to legally classify people with disabilities as belonging to a minority group protected from discrimination. However, this was more of a theoretical legality that had very little impact on the wider community. 
• The National Council on the Handicapped, an independent Federal agency now known as the National Council on Disability, issued a report in 1986. This report was called ‘Toward Independence’ and it referred, in part, to the employment challenges faced by people with disabilities. The report recommended that a new law should be enacted to protect the rights of people from this minority group. 
• The ADA was first introduced to Congress in 1988 after the creation of the Congressional Task Force on the Rights and Empowerment of Americans with Disabilities. Congress introduced a revised, and more conservative, version of the Act in 1989.  
• In 1990, President Bush passed signed the ADA into law.
• Then, in 1991: 
  • The U.S. Equal Employment Opportunity Commission (EEOC) issued regulations for Title I of the Americans with Disabilities Act (ADA). These included specific requirements and regulations relating to employment practices.
  • The U.S. Department of Justice (DOJ) issued regulations for Title II and Title III. 
  • The U.S. Department of Transportation (DOT) issued transportation regulations for Title II and Title III.
  • And the Federal Communications Commission (FCC) issued regulations for Title IV.
• Titles I and II became effective in 1992, and titles III and IV became effective in 1993.

The Americans with Disabilities Amendments Act of 2008 (ADAA)

After the Americans with Disabilities Act came into effect, many people started filing lawsuits against their employers relating to claims of discrimination. However, although the language used in the Act was specific, it was also, arguably, open to interpretation. And this resulted in inconsistent court findings across the nation. 

One of the most renowned sets of cases relating to the ADA was brought before the Supreme Court in 1999. It was known as ‘The Sutton Trilogy’. These 3 cases claimed that the findings of lower courts significantly limited the interpretation of the ADA, and they were therefore unjust. The Supreme Court upheld these findings and claimed that only those people with severely limiting impairments should be deemed disabled. However, Congress disagreed with the Supreme Court’s ruling and the ADA Amendments Act (ADAAA) was eventually signed into law in 2008.  

Amendments to the original ADA included:

• New definitions for the terms ‘disability’, ‘major life activities’, and ‘being regarded as having such an impairment’. Specifically, the ADAA emphasized that disability was a broader term that did not require extensive analysis. This gave employers clearer guidance on what constitutes a disability, and what their responsibilities were. 
• A direction to the EEOC to revise its definition of the term ‘substantially limits’.
• Clarification that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity.

Who enforces the Americans with Disabilities Act?

Aside from the U.S. Department of Labor, there are a number of other federal agencies that are responsible for enforcing or investigating claims relating to the Americans with Disabilities Act.

For example:

• The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA. This Title prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in applying for jobs, hiring, firing, and job training.
• The U.S. Department of Transportation enforces regulations governing transit, which include ensuring that recipients of federal aid and state and local entities responsible for roadways and pedestrian facilities do not discriminate on the basis of disability. The department also issues guidance to transit agencies on how to comply with the ADA to ensure that public transit vehicles and facilities are accessible.
• The U.S. Department of Justice enforces ADA regulations governing state and local government services (Title II) and public accommodations (Title III).
• The U.S. Department of Education enforces Title II of the ADA which prohibits discrimination in programs or activities that receive federal financial assistance.
• The Federal Communications Commission (FCC) enforces regulations covering telecommunication services. 
• The Office of Federal Contract Compliance Programs (OFCCP) has coordinating authority under the employment-related provisions of the ADA.
• The Civil Rights Center (CRC) is responsible for enforcing Title II of the ADA as it applies to the labor and workforce-related practices of state and local governments and other public entities. 

What employers need to know 

Ok, so we’ve discussed the legal aspects of the ADA, but what do you need to be aware of as an employer? How can you protect yourself from claims relating to the Americans with Disabilities Act?

To put it simply, as an employer, you need to understand:

• What employment discrimination on the basis of disability is
• Who the ADA protects
• Which disabilities the ADA covers
• What reasonable accommodations and undue hardships are
• Specific HR practices that the ADA regulates

Let’s take a look at these areas in a bit more detail. If you need further clarification, you can find out more about your responsibilities as an employer from the U.S. Department of Labor’s (DOL) Office of Disability Employment Policy (ODEP).

Employment discrimination 

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also prohibits discrimination against people with disabilities in State and local government services.

One of your primary responsibilities as an employer in this sense is to ensure that your hiring practices are not discriminatory. You need to make sure that all candidates are treated fairly, regardless of disability. You also need to make sure that you don’t ask any inappropriate questions or use disqualifying measures that aim to exclude people with disabilities.

Aside from hiring and recruitment, you also need to make sure you don’t discriminate in relation to:

• Pay
• Firing
• Promotions
• Job assignments
• Training
• Paid or unpaid leave
• Lay-offs
• Benefits
• Any other employment-related activities

Who does the Americans with Disabilities Act protect? 

For an employee to be protected by the Americans with Disabilities Act, they must have a physical or mental impairment that substantially limits a major life activity. This includes hearing, seeing, speaking, breathing, performing manual tasks, walking, learning or working. The ADA also protects individuals who have, or are regarded as having, a substantially limiting impairment. 

This means that you cannot discriminate against a legitimately qualified candidate (someone who is capable of performing a role and has the necessary qualifications and experience) based on their disability or impairment. If a candidate with a disability meets the minimum requirements for a position or promotion, then you must consider them for the role, regardless of their disability. Otherwise, this would be considered employment discrimination.

Disabilities covered 

So, which physical and mental disabilities does the ADA recognize? What do you need to be aware of to ensure ADA compliance?

Physical impairments and disabilities include but are not limited to visual, speech, and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; orthopedic conditions; cancer; heart disease; diabetes; and contagious and noncontagious diseases such as tuberculosis and HIV disease (whether symptomatic or asymptomatic). The Act also covers the use of wheelchairs or prosthetics.

Mental impairments and disabilities include but are not limited to cognitive or mental health disorders; mental retardation; emotional illnesses; and specific learning disabilities. Moreover, the ADA also covers certain forms of addiction, such as alcoholism or drug addiction if an individual has completed rehabilitation.

If a candidate or employee has a record or history of any of the above impairments, then you cannot discriminate against them based on their disability. The same applies if someone believes that they have an impairment, regardless of whether or not they have a medical record of it, or if they are regarded by others as having a disability. 

Reasonable accommodation and undue hardships 

According to the Americans with Disabilities Act, people with disabilities are entitled to reasonable accommodation in their place of work.

But what does this mean?

Essentially, it means that you must ensure you provide as many accommodations as possible so that an employee with a recognized disability is able to perform their role. For example, this might include providing a certain type of chair, desk, or computer. It also means that you cannot require them to perform certain functions such as heavy lifting. 

For example, if an employee has a hearing disability, then you cannot force them to use the phone. Instead, you should accommodate their work so that it can be done via email instead. Or if an employee uses a wheelchair, then you cannot require them to do manual labor. 

If you fail to provide reasonable accommodations to people with disabilities in your business, then the ADA would consider this to be employment discrimination. The only exception to this is if an accommodation would cause you undue hardship. In other words, it would require significant difficulties, disruption or expense, or fundamentally alter the nature of your business operations.

Practices covered 

To ensure ADA compliance, you need to ensure your HR practices comply with the provisions of the Americans with Disabilities Act.

But which practices does the ADA apply to?

To ensure ADA compliance, make sure you review your processes and procedures for:

• Job application and advertising 
• Hiring and promotions for all departments
• Termination
• Tenure
• Compensation and benefits
• Pay rates and levels
• Job assignments
• Paid leave
• Learning and development, including access to training opportunities 
• Any other privileges of employment

Positive impact of the ADA 

Since the ADA came into effect over 30 years ago, it has had a number of positive effects on the employment opportunities offered to people with disabilities.

For example:

• According to the Bureau of Labor Statistics, the rate of employment for persons with a disability has risen from 17.9% in 2020 to 19.1% in 2021.
• Awareness of the effects of employment discrimination has helped to promote DEIB in businesses across the US. Now, more than ever, companies are implementing strategies that focus on creating a sense of diversity, equity, inclusion, and belonging. But why is this relevant? The aim behind these practices is to employ people with a range of social identities, create systems that ensure equal access, and ensure all voices are heard. 
• According to a report published by the American Association of People with Disabilities (AAPD), businesses that actively seek to employ people with disabilities see 28% higher revenue than businesses that don’t.
• The ADA has paved the way for further legislative policy advancement for disability rights.

Stay compliant 

HR compliance is a critical part of any human resources department. What’s more, aside from complying with legal requirements and avoiding costly fines and penalties, an environment of human resources compliance also has a positive influence on employee performance and development, retention, and hiring. Compliance is vital for the long-term success of a company.

In terms of the Americans with Disabilities Act, the best way to stay ADA compliant is to make sure you understand all provisions of the Act, including the language behind general and specific employer requirements. This includes understanding which accommodations you need to offer people with disabilities and what’s construed as undue hardship. It’s also important to make sure you keep up to date with any changes in the ADA and in HR compliance laws in general. A great way to protect yourself is to include all your ADA obligations in your HR compliance checklist and establish clear policies and procedures to prevent discrimination in any of your business practices.

Another effective way to ensure ADA compliance is by using the right HR tools and software. For example, Factorial’s ‘all-in-one’ centralized HR software platform includes a range of features that help your company stay ADA compliant. 

With Factorial’s HRIS solution you can:

• Implement policies and procedures in line with any changes to employment laws and regulations.
• Ensure you communicate all your discrimination policies and that they are readily available to existing employees.
• Offer training on your company policies and procedures.
• Ensure employees are aware of their rights.
• Train managers so they can flag any potential claims of discrimination.
• Create a paper trail for any disciplinary procedures.
• And finally, you can perform regular audits and create checklists to ensure compliance with the Americans with Disabilities Act at all levels of your organization.