The Americans With Disabilities Act

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LAST UPDATED: established 07August96
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Copyright 1995 American Diabetes Association

Too often in the past, people with diabetes were denied jobs or fair
treatment at work solely because they had diabetes. Now, the Americans 
With Disabilities Act of 1990 puts the strong arm of the law on the side 
of fairness.

It protects many people with diabetes from job discrimination. Knowing 
your rights is the first step to getting the treatment you deserve.

The Americans With Disabilities Act

The Americans with Disabilities Act is a civil rights law. It protects 
the rights of disabled people in several ways. Congress intended the act 
to break down the barriers that keep disabled people from taking full 
part in society.

The Americans With Disabilities Act bans discrimination against disabled
people much as other laws outlaw discrimination based on age, sex, race, 
or religion.

Title I of the law, which deals with job discrimination, is the part of 
the act that affects people with diabetes most.

Illegal Acts

The act bans discrimination against qualified people with disabilities 
in all aspects of employment. These include application procedures, 
hiring, firing, promotions, pay, and training.

Employers also must not discriminate in recruiting, advertising, tenure, 
or layoff. The act also protects disabled people from unfair treatment 
in leave and fringe benefits.

Are People With Diabetes Disabled?

The act defines disability in three ways. For the law to consider you
disabled, you need meet only one of these definitions:

1. You are disabled if you have a physical or mental impairment that
   greatly limits one or more major life activities.

2. You are disabled if you once had such an impairment.

3. You are disabled if others regard you as having such an impairment. 
   The act also protects you if you associate with or have a 
   relationship with someone who has a disability.

"Major life activities" include seeing, hearing, speaking, walking,
breathing, doing manual tasks, learning, caring for oneself, and 
working. If your diabetes has ever greatly disabled you, then the law 
considers you disabled. You would meet either the first or the second 
part of the definition.

What if your diabetes has never disabled you? If an employer 
discriminates against you because it considers diabetes a major 
impairment, then you meet the third definition of disabled.

It doesn't matter if your diabetes is actually well controlled by 
insulin or diabetes pills. If your employer sees you as disabled because 
you take insulin or pills, then the law considers you disabled.

The act also protects your husband or wife from unfair treatment. An
employer cannot treat your spouse differently just because you have
diabetes. Similarly, the law protects your parents, roommates, and 
friends from discrimination because of your diabetes.

Who Is Protected And Who Is Not?

As of July 26, 1992, companies with at least 25 workers had to obey the
Americans With Disabilities Act. As of July 26, 1994, companies with at
least 15 workers must also obey the law.

Private companies, state and local governments, employment agencies, and
labor unions must comply with the Americans With Disabilities Act. It's 
not yet clear whether the act also protects self-employed people who do
projects for such companies.

Law courts will need to decide the rights of self-employed people and
others who fall into grey areas of the law.

Millions of workers can still be discriminated against legally. For
example, no federal law protects people working for companies with 14 or
fewer people. Perhaps 3 million American companies are this small.

The act also does not protect people who work for the federal 
government. A similar law, the Rehabilitation Act of 1973, does protect 
these workers. It also protects people who work for federal contractors 
or for organizations that get federal funds.

Other employers not covered by the act include Native American tribes 
and tax-exempt private clubs.

Also, the act lets stand laws that restrict disabled people from jobs 
for safety reasons. For example, as of February 1994, the Federal 
Aviation Administration still discriminates against pilots with 
diabetes. People with diabetes are fighting such policies and may get 
them overturned.

If the Americans With Disabilities Act does not protect you, check with
your state and city. They may have their own antidiscrimination laws.

Reasonable Accommodation

The employer cannot discriminate against you if:

1. You are qualified for the job, and

2. You can do "essential functions" with or without "reasonable 
   accommodation."

Accommodation means that your employer changes your work, work area, or
schedule or provides training or help to let you to do the job. For
example, the company might provide a special desk or computer, allow
flexibility in your work schedule, or provide training materials.

The employer does not have to make accommodations that would cause 
"undue hardship." In other words, the employer can discriminate against 
you if making accommodations would be too hard or cost too much. Courts 
will decide what is reasonable case by case.

Essential functions are basic job duties that the worker must be able to
do. For example, a job description written before a company starts to 
look for a worker spells out the essential functions of a job.

The company cannot make you pay for the accommodation. It can refuse to
make the accommodation if it would be an undue hardship, but only if
funding is not available from another source. The source could be you
yourself, if you are able to afford the accommodation, or a state
vocational rehabilitation agency.

The employer does not have to give you more sick leave than other 
workers. It does not need to find you health insurance without a 
preexisting conditions clause. It can hold you to the same standards of 
performance or production as other workers.

A company does not have to give you a job just because you are disabled.
Nor must it give you any preference over other qualified people who 
apply for the job.

To Tell or Not to Tell

Being open about your diabetes can teach other people about the disease.
It makes clear that people with diabetes are no different from anyone 
else.

The Americans With Disabilities Act does not require you to tell your
employer that you have diabetes. But the act only protects you from
discrimination if your employer knows you are disabled.

(Of course, if your employer doesn't know about your diabetes, it isn't
possible for the company to treat you unfairly because of your disease.)

You can tell your company about your diabetes later and still be 
protected. For example, if you do not need accommodations now, but in 
the future you do, you can tell your company then. In that case, the act 
starts to protect you when you ask your employer for an accommodation.

When you apply for a job,  the employer cannot ask you about a 
disability. (In certain cases, such as to meet affirmative action rules, 
a company can invite you to say that you are disabled.) The company 
cannot make you get a medical exam before it offers you a job.

After a job offer, the company can make you have a medical exam only if 
it makes all new hires in that job category get one. (That is, the 
company cannot single you out to get an exam because you have diabetes.)

The company is allowed to take back a job offer because of the results 
of a medical exam but only if the reason is related to the job. The 
judgment that you are not fit must be based on current medical knowledge 
and objective evidence. The doctor doing the exam must know the 
functions of the job.

When Discrimination Occurs

There are several steps you can take when a company discriminates 
against you because of your diabetes.

Try solving the problem by talking directly with your employer.

Enlist the help of your union or employee group.

Think about seeing a lawyer. With a telephone call or letter, a lawyer 
may be able to resolve your problem easily. The American Diabetes 
Association has an Attorneys' Network. It can help you find a lawyer.

Call your American Diabetes Association state affiliate to find out 
names of lawyers near you who are in the network.

If you want to file charges with the Equal Employment Opportunity
Commission, you can find its number in the telephone book. Look in the 
blue pages under U.S. Government. Usually, you must file your charge 
within 180 days of the act of discrimination.

If you win your case, the company must place you in the position you 
would have had if it had not discriminated against you. To do so, the 
company may need to hire, promote, or reinstate you.

Also, the company may need to give you back pay or make reasonable
accommodation. Sometimes, the court may require the company to pay you
damages or pay your lawyer's fees.

To make your case stronger, don't quit your job. If you must leave, look
for other work. It counts in your favor if you show that you are willing
and able to work. Also, keep records of your glucose levels so that you 
can show that you keep good control of your diabetes.

See your doctor regularly. You may need your doctor to confirm how good
your health is and how well you control your diabetes.

Important Numbers

The President's Committee on Employment of People with Disabilities
(1-202-376-6200 voice; 1-202-376-6205 TDD) can provide a packet of
information on the Americans With Disabilities Act.

The Job Accommodation Network (1-800-526-7234 voice and TDD) provides 
free information for employers on how to make accommodations for 
disabled workers.

The Equal Opportunity Commission can send publications (1-800-669-3362
voice; 1-800-800-3302 TDD) and answer questions (1-800-949-4232) on the
Americans With Disabilities Act.

The Disability Rights Education and Defense Fund (1-800-466-4343 voice 
and TDD) provides free technical assistance to lawyers and people with
disabilities. The fund can tell you about your legal options and refer 
you to other places for help.

Document ID: ADA040