Q. What are the primary laws that hearing impaired people use in pursuing discrimination cases?
A. The main laws that are used in anti-discrimination cases are the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. The Rehabilitation Act of 1973 required any program or activity that received federal funding to provide accommodations for "...otherwise qualified individual with a disability in the United States." For examples, airports were one of the first American facilities to become fully accessible to disabled individuals.
The Americans with Disabilities Act, builds further upon the Rehab Act. The ADA covers and protects against discrimination in several major areas of life:
- Employment
- Public services and transportation
- Public Accommodation (and Commercial Facilities)
- Telecommunications
For example, as a result of the telecommunications provision, the ADA led to installation of public Teletypewriter (TTY) machines and other TDDs Telecommunications Device for the Deaf.
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Q. What employers are covered by title I of the ADA?
A. The title I employment provisions apply to private employers, state and local governments, employment agencies, labor unions and employers. This could mean people who work for a private company, as part of a government agency or as a labor union representative, etc.
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Q. What practices and activities are covered by the employment nondiscrimination requirements?
A. The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
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Q. Who is protected from employment discrimination?
A. Employment discrimination is prohibited against "qualified individuals with disabilities." This includes applicants for employment and employees. An individual is considered to have a "disability" if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, non-chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.
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Q. Who is a "qualified individual with a disability?"
A. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.
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Q. What is "reasonable accommodation?"
A. A "reasonable accommodation" is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
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Q. What are some of the accommodations hearing impaired applicants and employees may need?
A. Deaf applicants and employees often need to have interpreters or communicative devices, such as an in-office instant messaging system. The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is that of effectiveness, for example, whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. The accommodation does not have to ensure equal results or provide exactly the same benefits.
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Q. When is an employer required to make a reasonable accommodation?
A. An employer is only required to accommodate a "known" disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one. There are also many public and private resources that can provide assistance without cost.
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Q. When can an employer ask an applicant to "self-identify" as having a disability?
A. Federal contractors and subcontractors who are covered by the affirmative action requirements of section 503 of the Rehabilitation Act of 1973 may invite individuals with disabilities to identify themselves on a job application form or by other pre-employment inquiry, to satisfy the section 503 affirmative action requirements. Employers who request such information must observe section 503 requirements regarding the manner in which such information is requested and used, and the procedures for maintaining such information as a separate, confidential record, apart from regular personnel records.
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