ADA employment discrimination claims and defenses
The Americans with Disabilities Act (ADA) makes it illegal for employers to discriminate against persons based on real or perceived disabilities who are qualified to do the essential functions of the job, if the employers are aware of the disability. See generally
42 U.S.C. § 12112(a).
The plaintiff must have, or be regarded to have, a disability, be a qualified individual, and have suffered an adverse employment action because of that disability.
The Q&A that follows defines the elements and common defenses. There has been considerable litigation at the edge of these definitions, and this exercise is not intended to answer every question, but rather to provide an overview of the elements and defenses. Another overview is provided by the infographic on the right (click on it for a full size PDF).
A disability is a physical or mental impairment that substantially limits a major life activity. A major life activity is an activity that is of central importance to everyday life, that an average person can do without much difficulty. Temporary injuries and short-term impairments are not disabilities.
Persons are also regarded as having a disability if employers believe that the person has a disability, and is treated as such.
The ADA may also apply where adverse action was taken against a person without a present disability who had a record of a disability, or is taking medication to control the disability.
If the applicant or employee does not ask for an accommodation, the employer does not have to provide one unless it knows of the disability. If a disability and the need to accommodate it are obvious, however, the law does not always require an applicant or employee to expressly ask for a reasonable accommodation.
An accommodation is a change that will let a person with a disability perform, apply for, or be eligible for the job. A reasonable accommodation might include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities."
42 U.S.C. § 12111(9).
An employer does not need to accommodate a disabled employee if the accommodation would cause an undue hardship to the business. See
42 U.S.C. § 12112(b)(5)(A).
An undue hardship is something too costly or something that is so disruptive that it would fundamentally change the nature of the employer's business or how it is run.
Appropriate factors to consider include the nature and cost of the accommodation, the size of the business and number of people it employs, and the types and number of facilities it runs.
A plaintiff must show an adverse action, such as failing to accommodate the diability, not hiring, not promoting, or firing the plaintiff because of the disability or perceived disability.
Quitting a job is equivalent to a firing where the employer purposely made the
working conditions so intolerable that a reasonable person in the plaintiff's position would have had to quit. This is sometimes called "constructive discharge."
An employer is not required to provide a reasonable accommodation to an individual who is merely "regarded as" disabled.
29 C.F.R. § 1630.2(o)(4).
Mixed motive cases occur where the employer produces a nondiscriminatory reason for the adverse employment action. The finder of fact determines whether it is valid or pretextual. The Supreme Court has not spoken definitively on the proper standard for this inquiry in ADA employment discrimination cases.
A "motivating factor" ("same decision") test, means a reason, alone or with other reasons, on which the defendant relied (or which moved the defendant toward its decision) in taking an adverse action. See
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (Title VII employment
discrimination); Babb v. Wilkie (U.S. Apr. 6, 2020) (ADEA government sector)