Practical Suggestions For Compliance With The Civil Rights Act
And The Americans With Disabilities Act

By DAVID M. GRIFFITH & ASSOCIATES, LTD.

Federal changes in the Civil Rights Act (CRA) and the Americans with Disabilities Act (ADA) have caused a flood of information from attorneys, consultants, the media, and federal agencies. David M. Griffith & Associates, Ltd. (DMG) believes these changes are receiving attention because:

1. Many Americans now meet the legal definition of disability.
2. Changes in the CRA reverse judicial trends and make employment discrimination potentially expensive.
3. For the first time, handicapped legislation affects most private sector employers.

DMG believes that there are several actions employers should take to respond to this new legislation. It is our intention in this article to summarize the changes in the law and outline recommendations to ensure that an effective human resource program is in place.

CIVIL RIGHTS ACT OF 1991

The 1991 CRA reverses recent court decisons and extends the protection afforded to employees. It also is the enforcement mechanism for the ADA in most situations. The CRA enables employees to obtain larger damage awards as well as jury trials under certain circumstances. The new law also revived "disparate impact" which focuses on a neutral rule which disproportionately affects a protected person or group.

Under the new law, in addition to back pay, interest on back pay, front pay, attorneys fees or any other equitable relief (i.e. medical expenses), prevailing plaintiffs may be entitled to additional amounts determined by the law. The dollar figure of most compensatory damages and all punitive damages awarded to each complaining party can be as high as:

— $50,000 for employers with more than 14 and fewer than 101 employees;
— $100,000 for employers with more than 100 and fewer than 201 employees;
— $200,000 for employers with more than 200 and fewer than 501 employees;
— $300,000 for employers with more than 500 employees.

These damage awards are unlikely where an employer has made a good faith effort to reasonably accommodate a person with a disability. Accordingly, the new penalties make it clear that employers must focus on the consequences of employment practices rather than simply on the motivation behind employment practices. Employers must monitor and be aware of any statistical imbalances in the representation of women, minorities and other protected groups in their workforce which may be caused by any of their particular employment practices on the basis of race, color, religion, sex and national origin. The price to an employer for being found guilty of illegal discrimination is greater than it has ever been before.

THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act is composed of four titles:

Title I — Employment
Title II — Governmental Programs and Services
Title III — Public Accommodations and Services
Title IV — Telecommunications

This article focuses on the employment implications of Title I.

While most states have been subject to statutes prohibiting discrimination of handicapped individuals, ADA is more comprehensive than the old law and imposes greater requirements on employers. Title I of ADA becomes effective on July 26, 1992 for private employers with 25 or more employees and on July 26, 1994 for private and public employers with 15 or more

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employees. Public employers, however, are required to begin implementation immediately.

The ADA prohibits discrimination against "qualified individuals with disabilities" in regard to all activities related to employment as it does with other forms of illegal discrimination, including, but not limited to, the following practices:

Recruitment	Transfers
Advertising	Layoffs
Job Applications	Termination
Hiring	Job Assignments
Upgrading	Job Classifications
Promotions	Job Descriptions
Demotions	Seniority
Selection	Leaves
Medical Exam	Fringe Benefits

Among other things, the ADA calls on employers to:

— know who is disabled under the law;
— know what pre-employment and job requirements an employer may impose and
— know what an employer must do to "reasonably accommodate" a disabled person.

The ADA defines an individual with a disability as a person: 1) with a physical or mental impairment that substantially limits one or more major life activities, 2) with a record of such impairment or is regarded as having an impairment, or 3) who cares for a person with a disability outlined in 1 or 2 above. Only one of these criteria must be met for an individual to be considered disabled. A qualified individual is a person who can perform the essential functions of the job with or without accommodation.

In light of these new laws, employers are well-advised to take the following steps.

1. Review Job Descriptions

It has been said that "Accurate position descriptions are the foundation of a solid human resource program." In addition to being a sound foundation for a human resource program, job descriptions are the foundation of sound legal defense.

What is an accurate position description and just how much information is the right amount? Traditionally, organizations prepare position descriptions based on information about job duties obtained through observations by supervisors, written information from incumbents, or a combination of the two. Some organizations use "canned" descriptions from other businesses or publications. A canned job description is ill-advised because it is likely to contain substantial differences from actual job functions.

There is an alternate approach available which requires less work. DMC performs a great deal of compensation consultation in which each employee is required to complete a comprehensive position analysis questionnaire. The supervisor, the department manager, and the human resource department review the responses. Items in the ques-

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tionnaire are linked to the compensable factors in our job evaluation system. The items include written and verbal communication as well as physical, dexterity and sensory requirements. All of these requirements are related to the ADA.

Although DMG routinely prepares traditional position descriptions, an acceptable alternative is to: 1) make the position analysis questionnaire a part of the personnel department file as the most complete job documentation available on the actual performance of that position, and 2) prepare a job specification which lists the essential job functions, required knowledge, skills, and abilities, and desired training and experience necessary to perform the job.

Whichever procedure is used, it is important to keep the job description materials accurate by reviewing the job requirements before recruiting for a vacancy as well as updating the requirements during an incumbent's performance review, or anytime there is a significant change in job duties or requirements.

2. Reasonable Accommodation

Employers must reasonably accommodate qualified prospective and current employees with disabilities; accommodation is not required if it would place an undue hardship on the employer. Issues that will be considered in determining if an undue hardship exists are the size of the organization, its resources and the cost of the required accommodation.

Accommodations are not only required to assist a qualified individual with a disability in performing the essential functions of the job but accommodations also must be made for an individual with a disability in all areas that employees without disabilities enjoy. For example, if an organization has a lunchroom facility, the employer may be required to make accommodations so that a disabled individual can enjoy the use of the facility or if the drinking fountains are too high for an individual in a wheelchair, paper cups may have to be placed by the fountain. Although most accommodations will result from covered employees asking for accommodation, it is a good idea to survey work facilities and identify areas that are inaccessible to disabled individuals. Inform all employees of the accommodations requirement and solicit their suggestions.

Accommodation requirements of the ADA are not limited to structural accommodations. Revised work schedules, job reassignments and job restructuring are a few examples in a large realm of possibilities. An employer must identify an ADA compliance officer in the human resources department or administration, if there is no human resources department; employees in need of accommodation

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can then be directed to that person. The ADA compliance officer can work with the employee and the supervisor in identifying, evaluating, and selecting possible accommodations.

3. Job Application Forms

It is important that employers review the job application process to remove discriminatory items. For example, the following questions cannot be asked:

— Do you have a disability?
— Have you ever received workers compensation?
— How many days of work have you missed in the last year?

Many employers accept applications for employment even when there are no specific vacancies. In these instances, employers will either need to require that an individual specify the position for which an application is being made and require that an application specific to that position be filled out or the employer will need to have a more general application for individuals not applying for a specific position.

4. Guidelines and Training for Employees

We recommend providing guidelines and training to all individuals responsible for interviewing job candidates. Certain questions are illegal. For example, employers are prohibited from asking a job applicant if s/he has a disability or from inquiring as to the extent of the disability. If it is known that an applicant has a disability, it is permissible to ask how the employee would perform the functions of the position and what accommodations would need to be made. Employers must discourage all interviewers from asking questions that are unrelated to the position and posed for the purpose of determining whether or not an individual has a disability.

5. Testing Procedures

Employment tests must be related to the essential functions of the job for which the applicant is applying. Tests are broadly defined to include paper and pencil examinations, established job criteria measured by information presented in a written job application, interview questions, etc. Skills required to take the test must be skills needed to perform the essential job functions. The environment in which tests are administered must be accessible to applicants with disabilities. There are many examples of points to consider on testing procedures; however, a few interesting examples are:

— The employer may need to hire a reader so that a sight-impaired applicant can take a written test for a job which does not require reading.
— If an applicant is unable to read fine print, the employer may need to provide a copy of an

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exam in a format that is more legible to the applicant.
— Many organizations require typing tests which are administered at desks that are not accessible to an individual in a wheelchair. Employers need to accommodate individuals in wheelchairs so that they have the same chance of passing the typing test as those not confined to a wheelchair.

6. Medical Examination Procedures

The ADA prohibits employers from requiring medical examinations prior to making an offer of employment. Once a conditional offer of employment has been made, an employer may require that an employee have a medical examination provided that the examination is required of all employees in that position. Any refusal to fulfill an offer of employment due to the results of the medical examination must be based solely on findings related specifically to the essential job functions.

Employers should make the physician conducting the exam aware of the essential job functions and all conclusions as to whether or not an offer should be made must be related to the essential job functions. For example, some employers use a consulting service which videotapes workers performing essential job functions in jobs which are physically demanding so that the examining physician can review the tape and design physical tests which measure the ability to perform those essential functions. Results of the medical examinations must be kept confidential in a separate file.

The ADA does not prohibit or regulate drug testing; however, some states have regulated it.

SUMMARY

While many DMG clients have been covered by handicap discrimination legislation for many years, CRA and ADA have introduced significant changes. It is an excellent time to review your organization's human resources program in several specific areas to make certain that standards are being met.

The Americans with Disabilities Act is important legislation; it protects millions of American workers with physical and/or mental disabilities from discrimination. Changes in the Civil Rights Act make intentional and unintentional discrimination illegal and very expensive to the employer.

There are many questions unanswered regarding the ADA; many of these questions will deal with determinations about reasonable accommodation. There also are unanswered questions regarding "disparate impact" under the Civil Rights Act. The answers most likely will come in litigation. However, there is a great deal that we do know and employers can make good faith efforts toward compliance. The steps to compliance with the ADA and the CRA really are basic human resource practices which all employers should

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follow. Key steps in reviewing your human resource programs are:

1. Determine the essential functions of positions using good job documentation methods.
2. Review the validity of the qualification standards established for each position.
3. Review job application forms and procedures for discriminatory items or practices.
4. Train job interviewers in proper questioning techniques.
5. Review medical examination procedures for job-related content.
6. Inspect organizational facilities for potential problems.
7. Inform applicants of your responsibilities to make reasonable accommodations and assign case review to a responsible decision maker.
8. Take a pro-active approach to recruiting individuals with disabilities, women and minorities.

The practical suggestions offered here deal directly with the ADA; however, they also apply to the requirements involving sex, age, national origin, race or ethnic discrimination. Our suggestions certainly are not exhaustive on these subjects. DMG encourages employers to confer with legal counsel for specific information on both the CRA and the ADA.

Human resource management has become increasingly complex in recent years, and this legislation emphasizes the importance of strong human resource programs. Although it is expensive to establish and manage human resource programs, it is even more expensive to not do so. •

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