Disability Discrimination by Marcel Oosterwijk
MN Law | Minnesota Human Rights Act
Under the Minnesota Human Rights Act (which generally applies to employers with one or more employees), individuals with a disability are protected from discrimination in employment. A disabled person is one who has a physical, sensory or mental impairment that materially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment.228
Qualified disabled persons (i.e., a disabled person who, with or without reasonable accommodation, can perform the essential functions required of all employees performing and/or all applicants for the job in question) are further protected under Minnesota law.229 Specifically, employers with 15 or more employees are required to make a reasonable accommodation to the known disability of a qualified disabled person, unless the employer can demonstrate that the accommodation would impose an undue hardship upon the business or organization.230 An individual who has a condition that results from alcohol or drug abuse and prevents that person from performing the essential functions of the job in question or poses a direct threat to property or safety of others is not a qualified disabled person.
“Reasonable accommodation” means the steps that the employer must take to accommodate the physical or mental limitations of a qualified disabled person that are actually known (or should have been known) to the employer. Reasonable accommodation may include, but does not necessarily require, the following:
- Making facilities readily accessible to and usable by disabled persons;
- Some job restructuring and reassignment to vacant positions which the disabled person is qualified to perform (but not creating new positions);
- Modified work schedules (which may include reduced hours, although an employer is not always required to offer part-time work as a reasonable accommodation);
- Acquisition or modification of equipment or devices; and
- Provision of aides on a temporary or periodic basis.
- In determining whether an accommodation constitutes an undue hardship, the following factors should be considered:
- The overall size of the business, including number of employees and number and type of facilities;
- The type of operation, including the composition and structure of the work force and the number of employees at the location where the employment would occur;
- The nature and cost of the needed accommodation;
- The reasonable ability to finance the accommodation at each site; and
- Documented good faith efforts to explore less expensive alternatives, including consultation with the disabled person or with knowledgeable disabled persons or organizations.
In determining whether an employee can safely and adequately perform his or her job, in spite of a disability, and what accommodations may be necessary, the employer is advised to rely on the advice of a competent physician. The employer should provide the physician with an accurate job description and request suggestions as to accommodation if the employee is unable to work without some form of assistance.
Please see the sections in this Guide relating to workers’ compensation and the Family and Medical Leave Act dealing with employer responsibilities toward individuals who have workplace-related injuries and are covered under Minnesota workers’ compensation law and who are entitled to family and medical leave. Employers should realize that their duties to their disabled employees should be analyzed with disability discrimination, workers’ compensation and family and medical leave laws in mind.
Federal Law — The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act231 (“ADA”), broadly prohibits discrimination on the basis of disability in employment (as well as in public services, public accommodations, public services operated by private entities, and telecommunications) and requires reasonable accommodation of a qualified individual with a disability. The ADA generally prohibits discrimination against a qualified individual with a disability, because of the individual’s disability, in all aspects of employment, including both the application process and the terms and conditions of employment such as compensation, advancement, training and discharge. The ADA applies to employers with 15 or more employees. The term “employer” is collectively used to refer to private employers, state and local governments, employment agencies, labor unions, and joint labor management committees. The term also includes “agents” of the employer, e.g., foremen, supervisors, or even agencies used to conduct background checks of applicants.232
In order to be “disabled” under the ADA, a person must be substantially limited in one or more major life activities such as seeing, hearing, walking, talking, or performing other functions.
A “qualified individual with a disability” is a person who, with or without reasonable accommodation, can perform the essential functions of the job. The same principles under Minnesota law regarding reasonable accommodation apply under federal law. A written job description that is prepared prior to advertising or interviewing applicants should state the essential functions of the job. Such job descriptions can be considered evidence of those essential functions.
Employers may deny employment to an applicant or remove an employee from a particular position if a job presents a direct threat to the person’s health even if there is no threat to others in the workplace.233
Employers ordinarily may enforce their seniority policies in assigning jobs, hours, and other conditions of employment notwithstanding requests by disabled employees for reasonable accommodation of their particular situation.234 However, employees requesting changes in jobs, hours or other working conditions on account of a disability should be permitted to show special circumstances justifying a deviation from the seniority system, such as the employer’s practice of unilaterally and frequently making changes to the seniority system.
On January 1, 2009 the ADA Amendments Act of 2008 (“ADAAA”) became law. The ADAAA significantly broadens the coverage of the ADA so that more employees with less severe impairments will be protected by the definition of “disability.”235 This means that employers will need to reevaluate the handling of employee disability and accommodation issues.
The ADAAA amendments do not change the wording of the disability definition—the definition of “disability” remains:
- a physical or mental impairment that substantially limits one or more major life activities;
- a record of such impairment; or
- being regarded as having such an impairment.” Under prior law, however, Courts construed the term “disability” narrowly to create a “demanding standard” for qualifying as disabled under the ADA.236
The ADAAA amendments drastically change this standard, and explicitly mandate that the definition of “disability” is now to be construed by the courts in favor of broad coverage of individuals.
Similarly, the ADAAA amendments require the phrase “substantially limits” to be interpreted expansively in favor of broad coverage of individuals. Under the ADAAA, an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability. In addition, an impairment that is episodic or in remission will be deemed a disability if it would substantially limit a major life activity when active.
The ADAAA amendments include a non-exhaustive list of “major life activities.” These activities include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The amendments also include new language stating that the operation of “major bodily functions” is a major life activity. Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Prior law allowed employers to take into account corrective devices and mitigating measures (such as medications and medical equipment) when considering whether an employee was “disabled” for purposes of the ADA.237 The ADAAA amendments directly override prior law with respect to mitigating measures and corrective devices. Now, the ADAAA amendments mandate that the determination of whether an impairment substantially limits a major life activity must be made without regard to the effects of mitigating measures. The language of the ADAAA contains an exception for the effect of ordinary eyeglasses and contact lenses, which may still be taken into account.
As noted above, the ADA protects individuals who are disabled as well as those individuals who employers wrongly regard as being disabled. The ADAAA amendments provide that an employee is “regarded as” disabled if the employee was subjected to discrimination because of an actual or perceived impairment, without more. It does not matter whether the impairment actually limits or is perceived to limit a major life activity. Transitory and minor impairments, however, cannot be the basis of a “regarded as” claim. Transitory impairments are impairments with an actual or expected duration of six months or less.
Employers are strongly encouraged to consult with legal counsel regarding disability assessments and reasonable accommodation issues, particularly in light of the ADAAA amendments.
Specific Acts of Discrimination
The ADA prohibits:
- Limiting, segregating or classifying a job applicant or employee in a way that adversely affects his or her opportunities or status because of a disability;
- Participating in a contractual relationship, e.g., with an employment agency or labor union, that has the effect of discriminating against a disabled applicant or employee;
- Utilizing standards, criteria or methods of administration that have the effect of discrimination on the basis of disability or that perpetuate discrimination;
- Excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to associate;
- Not making reasonable accommodation to the known physical or mental limitations of an applicant or employee with a disability unless the employer can demonstrate that the accommodation would impose an undue hardship on business operations;
- Denying employment opportunities to a qualified applicant or employee with a disability, if the denial is based on the employer’s need to make reasonable accommodation to the individual’s physical or mental impairment;
- Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals with disabilities unless the standards, tests or other selection criteria are shown to be job related and consistent with business necessity;
- Failing to select and administer employment tests in a manner that will effectively ensure that test results reflect the skills, aptitude or other factors that are being measured, and not the impairment;
- Harassing a disabled person by creating a hostile or offensive working environment on account of the person’s disability; and
- Retaliating against any individual who opposes a practice prohibited by the ADA or enjoys rights under the ADA.
An employee or applicant who is engaged in the illegal use of drugs is not protected by the ADA. The employer may not, however, discriminate against a qualified individual who has successfully completed or is participating in a supervised drug rehabilitation program and is no longer engaged in the illegal use of drugs. An employer may adopt or administer reasonable policies and procedures, including drug testing, to ensure that the individual is no longer engaged in the illegal use of drugs. If the employer intends to use drug testing for this purpose, the employer should consult legal counsel in order to ensure that its drug testing policy (discussed in the Alcohol and Drug Problems in the Workplace section of this Guide) complies with Minnesota law. The ADA expressly allows an employer to:
- Prohibit the illegal use of drugs and the use of alcohol at the workplace;
- Require that employees not be under the influence of alcohol or not be engaged in the illegal use of drugs in the workplace;
- Require conformity with the federal Drug Free Workplace Act; and
- Hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior to which the employer holds other employees, even if unsatisfactory performance or behavior is related to drug use or alcoholism by the employee.
In addition to individuals currently engaged in the use of illegal drugs, the following individuals are not protected by the Act: transvestites, homosexuals, bisexuals, transsexuals, pedophiles, exhibitionists, voyeurs, individuals with gender identity disorders not resulting from physical impairments or other sexual disorders, compulsive gamblers, kleptomaniacs, pyromaniacs or persons with psychoactive substance use disorders resulting from current illegal use of drugs.
The ADA’s provisions are to be coordinated with the provisions of the federal Rehabilitation Act of 1973, which currently protects employees and applicants of employers who qualify as government contractors. The ADA is enforced by the Equal Employment Opportunity Commission (the “EEOC”) which has issued extensive regulations interpreting the provisions of the ADA.238 The EEOC also periodically issues written statements called Guidances that identify the EEOC’s interpretation of various provisions of the ADA. For example, the EEOC has issued Guidances on the meaning of “mental impairment,” disability related inquiries and medical examinations of employees and job applicants, reasonable accommodation and undue hardship, and related ADA issues. Employers should note that such regulations or Guidances may be modified or revised in light of the ADAAA amendments. Required posters describing employees’ and applicants’ rights under the ADA are available from the EEOC’s Minnesota Office at (612) 335-4040 or (800) 669-4000.
An individual who has AIDS (or another infectious disease) is protected as a qualified disabled person under Minnesota law and the ADA so long as that person is able to perform the essential functions of the job and is not a health or safety threat to his or her coworkers. Courts have cast doubt on an employer’s ability to legally prove that someone with HIV (and possibly AIDS) actually poses a risk to the health or safety of others.239
However, while the risk of AIDS infection may be remote in most cases, an employer who knows that one of its employees has AIDS has a responsibility to its other employees to seek expert advice as to the risks of infection and preventive steps which may be necessary. AIDS-related information, as with all medical information relating to employees, must be kept in separate medical files, and treated as confidential medical records.
Pregnancy is excluded as a disability under the ADA, but pregnancy-related conditions may constitute protected disabilities. Pregnancy is also a circumstance which may give rise to a claim of sex discrimination. A pregnant employee who is unable to work due to pregnancy or childbirth is entitled to the same disability plan benefits which are available for non-pregnancy related disorders. In addition, the benefits and conditions of employment extended to employees with other physical and mental disorders must be extended to pregnant employees. For example, if a male employee has a heart attack and is unable to work and absent for three months, and during that time the employer pays all benefits on behalf of the employee and restores him to his same position, the employer should do the same for an employee who is unable to work due to pregnancy-related physical restrictions. The employer’s obligation in this example does not apply to child care leave which does not involve physical restrictions on the employee’s ability to work.
If an employer has a question regarding pregnancy leave, the employer should also consider the discussion elsewhere in this Guide which focuses on various leaves of absence–disability, personal, family and parental–and the potential for discrimination violations with respect to the terms and conditions under which such leaves are permitted.
CREDITS: This is an excerpt from An Employer’s Guide to Employment Issues in Minnesota, provided by the Minnesota Department of Employment and Economic Development & Linquist & Vennum P.L.L.P., Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.
228 Minn. Stat. § 363A.03, subd. 12 (2007).
229 Minn. Stat. § 363A.03, subd. 36 (2007).
230 Minn. Stat. § 363A.08, subd. 6 (2007).
231 42 U.S.C. § 12101 et seq. (2007).
232 U.S. Department of Justice, The Americans with Disabilities Act: Title I Technical Assistance Manual § 1.1 (1992).
233 Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002).
234 U.S. Airways v. Barnett 535 U.S. 391 (2002).
235 42 U.S.C. § 12102 (2008).
236 Toyota Motor Mfg, Ky. Inc. v. Williams, 534 U.S. 184 (2002).
237 See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
238 29 C.F.R. § 1630.1 et seq. (2007); Id. App. (2005).
239 Bragdon v. Sidney Abbott, 524 U.S. 624 (1998).
240 Minn. Stat. § 363A.03, subd. 36 (2007).