Southwest ADA Center

Disability Law Index - Employment: Discrimination (General Rule)

Statutes:

42 U.S.C. 12112(a) - Discrimination - General rule (under the original ADA)

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. 12112(a) - Discrimination - General rule (as amended by the ADA Amendments Act of 2008)

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

42 U.S.C. § 12111(8) (as amended by the ADA Amendments Act of 2008 through strikethroughs)

The term qualified individual with a disability means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

42 U.S.C. § 12114(a) (under the original ADA)

For purposes of this subchapter, the term qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

42 U.S.C. § 12114(a) (as amended by the ADA Amendments Act of 2008)

For purposes of this subchapter, a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.

Regulation:

29 C.F.R. § 1630.4 Discrimination prohibited.

(a) In general—

(1) It is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual in regard to:

(i) Recruitment, advertising, and job application procedures;

(ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

(iii) Rates of pay or any other form of compensation and changes in compensation;

(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

(v) Leaves of absence, sick leave, or any other leave;

(vi) Fringe benefits available by virtue of employment, whether or not administered by the covered entity;

(vii) Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;

(viii) Activities sponsored by a covered entity, including social and recreational programs; and

(ix) Any other term, condition, or privilege of employment.

(2) The term discrimination includes, but is not limited to, the acts described in §§ 1630.4 through 1630.13 of this part.

(b) Claims of no disability. Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.

29 C.F.R § 1630.2(m)

Qualified individual with a disability means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.

29 C.F.R § 1630.15 - Defenses (excerpt)

(f) Claims based on transitory and minor impairments under the “regarded as” prong. It may be a defense to a charge of discrimination by an individual claiming coverage under the “regarded as” prong of the definition of disability that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) “transitory and minor.” To establish this defense, a covered entity must demonstrate that the impairment is both “transitory” and “minor.” Whether the impairment at issue is or would be “transitory and minor” is to be determined objectively. A covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor. For purposes of this section, “transitory” is defined as lasting or expected to last six months or less.

Case Law:

Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).

  • The plaintiff had applied for and received Social Security Disability Insurance (SSDI) benefits. The Social Security program provides benefits to "a person with a disability so severe that she is 'unable to do [her] previous work' and 'cannot ... engage in any other kind of substantial gainful work which exists in the national economy.'" 42 U.S.C. 423(d)(2)(A).
  • She also pursued an ADA disability discrimination suit claiming that with reasonable accommodation she could perform the essential functions of her job.
  • Even though her two claims seem to contradict each other, the Supreme Court held that the pursuit and receipt of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim nor does it raise strong presumption against the recipient's success under the ADA. "There are too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side."
  • The ADA plaintiff can not simply ignore her SSDI claim that she was too disabled to work. To survive a motion for summary judgment, she must explain the (in)consistency of the two claims. In this situation, the plaintiff pointed out that whether an individual is disabled for SSDI purposes does not take the possibility of "reasonable accommodation" into account. "An ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own job (or other jobs) without it." The plaintiff also adequately explained that the basis of the two claims arose out of different time periods.