Title I Guidelines

Introduction

The Americans with Disabilities Act of 1990 was enacted to ensure that all qualified individuals with disabilities enjoy the same employment opportunities available to persons without disabilities.  The ADA Amendments Act of 2008 made important changes to the definition of the term "disability." These two federal laws are collectively referred to as “the ADA” in these guidelines.

The State Courts System is committed to providing a work place free of unjust discrimination. These guidelines were prepared to assist elected officials, non-judicial officers, court managers, and supervisors to ensure compliance with the employment provisions of the ADA.  Included are a practical summary of Title I (employment provisions) of the ADA, along with an overview of the legal obligations in recruiting practices, the interview process, and available references and resources.

The Title I ADA Coordinator for the State Courts System is Mr. Timothy Middleton, Court Operations Consultant in the Human Resources Office. Mr. Middleton’s phone number is (850) 410-0646 or he may be reached by email at ADA@airllevant.com.  Additionally, each district and circuit court has a designated ADA coordinator to assist individuals locally. You can contact the Marshal's Office in the district courts or the Trial Court Administrator's Office in each circuit court for assistance.

Upon request by a qualified individual with a disability, this document will be made available in alternate formats including audiotape, Braille, large print, or electronic file.  To request this document in an alternate format, please contact the Title I ADA Coordinator, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee, Florida 32399-1900, (850) 410-0646, ada@airllevant.com

Section I: Overview

Employment Practices Regulated by Title I

The ADA prohibits discrimination against all qualified individuals based on a disability or disabilities in all employment activities. These employment activities include:

• Application
• Testing
• Hiring
• Assignments
• Evaluation
• Disciplinary actions
• Training
• Promotion
• Medical examinations
• Layoff recall
• Termination
• Compensation
• Leave
• Benefits

Who Is Protected by Title I?

• All qualified individuals with disabilities
• All qualified individuals who have a record of a disability
• All qualified individuals who are regarded as having a disability
• All qualified individuals who have an association or relationship with a disabled individual

Exclusions from the Definition of Disability

For purposes of the definition of disability in the federal law, homosexuality and bisexuality are not impairments and as such are not disabilities under the ADA.  Additionally, under the federal law the term disability does not include:

• Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
• Compulsive gambling, kleptomania, or pyromania; or
• Psychoactive substance use disorders resulting from current illegal use of drugs.

Section II: Definition

Individual with a "Disability"

A person who:

• Has a physical or mental impairment that substantially limits one or more major life activities of that individual
• Has a record of such an impairment
• Is regarded as having such an impairment

"Qualified Individual" with a Disability

A person with a disability who meets the skill, experience, education and other job-related requirements of a position held or desired, and who, with or without reason¬able accommodation, can perform the essential functions of the job in question.

"Physical or Mental Impairment"

Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

• neurological
• musculoskeletal
• special sense organs
• skin
• cardiovascular
• endocrine
• reproductive
• digestive
• genito-urinary
• respiratory (including speech organs)
• hemic and lymphatic

A mental impairment is any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

While it is not possible to provide an exhaustive list, examples of physical and mental impairments include:

• paralysis, amputation, and other mobility impairments
• blindness and low vision
• deaf, hard of hearing, and deaf-blind
• schizophrenia, bipolar disorder, and personality disorders
• mental retardation, traumatic brain injury, Alzheimer’s disease, and organic brain syndrome, and other cognitive impairments
• autism spectrum disorders
• specific learning disabilities such as dyslexia (reading and related language-based learning disabilities); dyscalculia (mathematical disability); and dysgraphia (writing or fine motor skills deficit)
• cerebral palsy
• multiple sclerosis
• speech impairments
• epilepsy
• heart disease
• cancer
• diabetes

"Major Life Activities"

Under the ADA, an impairment meets the definition of a "disability" only if the impairment substantially limits one or more major life activities.  Examples of major life activities include:

• walking
• speaking
• breathing
• performing manual tasks
• working
• seeing
• hearing
• learning
• caring for oneself
• sleeping
• standing
• lifting
• bending
• reading
• concentrating
• thinking
• communicating

Major life activities can also include major bodily functions, such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.  

"Substantially Limits” 

Three factors in determining whether a person's impairment substantially limits a major life activity are:

• Its nature and severity
• How long it will last or is expected to last
• Its permanent or long-term impact, or expected impact

The beneficial effects of medication, medical supplies, equipment or appliances, low-vision devices, prosthetics, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids and services; or learned behavioral or adaptive neurological modifications may not be considered when determining whether an impairment substantially limits a major life activity.  However, the beneficial effect of ordinary eyeglasses or contact lenses should be considered in the determination.  Furthermore, if an impairment that is episodic or in remission substantially limits a major life activity when active, it may be a disability.  

"Record of a Substantially Limiting Condition"

An individual who has a history of impairment, or who has a record of having been misclassified as having an impairment, meets this definition. For example: an in¬dividual who has a history of cancer or heart disease whose illness is cured, controlled or in remission, or an individual who was erroneously classified as having a learning disability.

"Regarded as Having a Substantially Limiting Impairment"

An individual who is perceived to have a substantially limiting condition even when this person does not have a substantially limiting impairment. For example an individual who has high blood pressure which is not substantially limiting, but the employer regards it as disabling or possibly disabling, and reassigns the employee to a less strenuous job.  Individuals will not be regarded as having a substantially limiting impairment if the perceived impairment is transitory (six months or less of actual or expected duration) and minor.

Employers are not required to provide reasonable accommodations to individuals who are regarded as having a substantially limiting impairment.  However, such individuals are protected from discrimination.   

 "Reasonable Accommodation"

Reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal employment opportunity.

Section III: Reasonable Accomodation

Reasonable Accommodation is Required in Three Aspects of Employment

• To ensure equal opportunity in the application process
• To enable a qualified individual with a disability to perform the essential functions of a job
• To enable an employee with a disability to enjoy equal benefits and privileges of employment

Examples of Reasonable Accommodation

• Making facilities readily accessible to and usable by an individual with a disability
• Restructuring a job by reallocating or redistributing marginal job functions
• Altering when or how an essential job function is performed
• Part-time or modified work schedules
• Obtaining or modifying equipment or devices
• Modifying examinations, training materials, or policies
• Providing qualified readers and interpreters
• Reassigning to a vacant position
• Permitting use of accrued paid leave or unpaid leave for necessary treatment
• Providing reserved parking for a person with a mobility impairment
• Allowing an employee to provide equipment or devices that an employer is not required to provide

When is the Court System Obligated to Make a Reasonable Accommodation?

The court system is obligated to make an accommodation only to the known limitations of an otherwise qualified individual with a disability.  In general, it is the responsibility of the applicant or employee to inform the employer that an accommodation is needed.

All requests for reasonable accommodation, and all decisions concerning reasonable accommodation, must be documented and maintained in a separate and confidential file by the designated ADA coordinator.

How Does One Determine What Is a Reasonable Accommodation?

When a request for a reasonable accommodation is made, whether by an applicant or current employee, you should notify the ADA coordinator of your court.  The ADA coordinator and supervisor should review the request and prepare a recommendation of accommodation for approval by the chief judge or the chief judge’s designee.  The Office of the General Counsel in the Office of the State Courts Administrator is available to provide technical assistance.  In evaluating a request for accommodation you should:

• Always consult the person with the disability as the first step in considering an accommodation
• Work with the person with a disability to identify appropriate accommodations
• Consider the preference of the individual with a disability and select the accommodation that best serves the needs of the individual and the needs of your work place
• Ensure that the essential functions of the position can be performed if the accommodation is made

When evaluating a request for an accommodation, factors that will be considered are:

• The nature and cost of the accommodation requested
• The financial resources of the facility making the accommodation
• The number of employees at the facility
• The effect on expenses and resources of this facility

In addition, the overall financial resources, size, and number of employees of the State Courts System may be considered.  Finally, the impact of the accommodation on the operations of the court may also be considered in evaluating requests for accommodation.

Documentation of Need for Accommodation

The employer may request documentation from a qualified health care provider of the individual's functional limitations to support the request for accommodations. Requests for documentation should be limited to documentation that establishes the existence of a disability; identifies the individual’s functional limitations; and describes how the requested accommodation addresses those limitations.

Copies of requests for accommodation, approvals or disapprovals, and a description of any accommodations made, should be provided to the local ADA coordinator, who should provide copies to the Office of Personnel Services.  Again, all requests for reasonable accommodation, and all decisions concerning reasonable accommodation, must be documented and maintained in a separate and confidential file by the designated ADA coordinator.

Undue Hardship

We are not required to make an accommodation if it would impose an undue hardship on the operation of the courts system.  An undue hardship is an action that requires significant difficulty or expense in relation to the size of the employer, the resources available, and the nature of the operation.

Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.  Factors which will be considered are whether the action is: unduly costly, extensive, substantial, disruptive, or would fundamentally alter the nature or operation of the court.

Undue hardship is determined based on the net cost to the employer. Thus, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation.  Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if s/he will pay the difference.

If an employer determines that one particular reasonable accommodation will cause undue hardship, but a second type of reasonable accommodation will be effective and will not cause an undue hardship, then the employer must provide the second accommodation.

An employer cannot claim undue hardship based on employees' fears or prejudices toward the individual's disability. Nor can undue hardship be based on the fact that provision of a reasonable accommodation might have a negative impact on the morale of other employees. Employers, however, may be able to show undue hardship where provision of a reasonable accommodation would be unduly disruptive to other employees' ability to work.

Section IV: Identifying the Essential Functions of a Job

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. Identifying the essential functions of a job is a key step in the implementation of the ADA. This task is critical for determining whether or not a person with a disability is qualified for the position in question, and for determining any reasonable accommodations.

It is especially important to identify essential functions before recruiting, advertising, or hiring.  All decisions regarding employment of an individual must be based on the individual's present ability to perform the essential functions of the job, with or without accommodation. All decisions not to employ an individual because of the person's inability to perform the essential functions of the job should be documented by the supervisor making the selection and maintained by the ADA coordinator of your court.

How to Determine if a Function Is Essential

The following general factors may be used to determine if a function or task is essential to a particular position:

• The position exists to perform the function
• There are a limited number of other employees available to perform the func¬tion, or among whom the function can be distributed
• The function is highly specialized, and the person in the position is hired for his or her expertise or ability to perform the function

As stated, prior to interviewing and recruiting, supervisors need to determine if a particular function assigned to a job is essential. Your judgment is a key factor in making this decision. In addition, a job description prepared before advertising or interviewing applicants for a job is a valuable document which can be used to establish whether a function is essential. The Office of Personnel Services can assist you and your employees in preparing job descriptions that comply with the ADA.

Other elements which you may use for determining if a function is essential are:

• The amount of time spent performing this task
• The consequences of not requiring the employee in the position to do that task
• The experience of employees who performed that task in the past or people who perform similar jobs

Section V: Recruitment and Selection

Establishing Job-Related Qualification Standards

The ADA does not restrict the court's authority to establish job qualifications, including: education, skills, work experience, licenses or certifications, physical and mental abilities, health and safety, or other job-related requirements, such as judgment, ability to work under pressure, or effective interpersonal skills. As a supervisor, you may prefer that an applicant or employee have job qualifications that are beyond the recommended minimum knowledge, skills, abilities, education, and training approved by the supreme court for the class to which the position is assigned. The qualification standards or selection criteria you use, however, must be job-related and consistent with business necessity.  The standard must also measure the individual's ability to perform the essential functions of the job with or without reasonable accommodation.

Recruitment

The court must provide an equal opportunity for an individual with a disability to participate in the job application process. You must inform the public, on the job vacancy announcement, that an accommodation can be provided, with notice, if an applicant needs an accommodation. Examples of accommodations for the recruit¬ment process are: providing an accessible location for applicants to complete and submit applications; responding to questions via TDD, TTY, or the Relay Services; assisting an applicant fill out required forms; or providing sign language interpreters.

You also may not require pre-employment medical examinations or medical histories, but you may condition a job offer on the results of a post-offer medical examination, if all entering employees in the same job category are required to take this examination.

The court may require that an individual not pose a "direct threat" to the health or safety of himself/herself or others. A health or safety risk can only be considered if it is a "significant risk of substantial harm."

Tests for illegal drugs are not medical examinations under the ADA and may be given at any time within the court's established policy.

Employment tests may be given as long as a test that screens out or tends to screen out a person with a disability on the basis of disability is job-related and consistent with business necessity. Tests must measure the skills and aptitudes of an individual rather than impaired sensory, manual, or speaking skills, unless those are job-related skills the test is designed to measure. Before deciding to use a particular test (for example, a typing test), carefully review the position description to determine the essential functions of the job and what skills are needed to perform those functions. You may also contact your local ADA coordinator or the Office of Personnel Services to evaluate any employment testing.  Accommodations must be provided, if necessary, for applicants with disabilities during the testing process.

 The Job Interview

When you conduct a job interview, you should focus on the ability of an applicant to perform the job, not on the applicant's disability. You may NOT ask questions about:

• The nature of a disability
• The severity of a disability
• The condition causing a disability
• Any prognosis or expectation regarding a condition or disability
• Whether the applicant will need treatment or special leave because of the disability

You may ask an applicant about his or her ability to perform specific job functions, tasks, or duties, as long as the question is not phrased in terms of a disability. For example:

If an individual has a known disability that might interfere with or prevent performance of job functions, he or she may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so.

However, if a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how he or she will perform a job if this is required of all applicants for the position. For example:

An applicant for a job uses a wheelchair. The essential function of the job is sorting mail. This task may be done while seated. You may ask the applicant for the job to describe how he or she will perform the job only if all applicants are asked to do so.

You may not ask whether an applicant will need or request leave for medical treatment or for other reasons related to a disability. However, you may provide information on the court's regular work hours, leave policies, and any special attendance needs of the job, and ask if the applicant can meet these requirements.

Below are examples of questions that may NOT be asked on application forms, during reference checks, or during job interviews. These questions refer to an applicant's disability; they are not related to the ability of the applicant to perform the essential functions of the job.

• Have you ever had or been treated for any of the following conditions or diseases?
• Please list any conditions or diseases for which you have been treated in the past three years.
• Have you ever been hospitalized? If so, for what condition?
• Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
• Have you ever been treated for any mental condition?
• Is there any health-related reason you may not be able to perform the job for which you are applying? 
• Have you had a major illness in the last five years?
• How many days were you absent from work because of illness last year?
• Do you have any physical defects which preclude you from performing certain kinds of work? If yes, describe such defects and specific work limitations.
• Do you have any disabilities or impairments which may affect your performance in the position for which you are applying?
• Are you taking any prescribed drugs?
• Have you ever been treated for drug addiction or alcoholism?
• Have you ever filed for worker's compensation insurance?

Background and Reference Checks

You may not request any information about an applicant from any source that you are prohibited from asking the applicant (see above examples).

A previous employer may be asked about:

• Job functions and tasks performed by the applicant
• The quality and quantity of work performed
• How job functions were performed
• Attendance record
• Other job-related issues that do not relate to disability

If an applicant has a known disability and has indicated that he or she could perform a job with a reasonable accommodation, you may ask a previous employer about accommodations that were made.

Confidentiality

The information about an employee's or applicant's disability obtained from such inquiries or examinations must be handled according to the strict confidentiality requirements of the ADA, and may be released only under the strict guidelines specified by the ADA. Please consult with your court's ADA coordinator, the Office of the General Counsel, or the Office of Personnel Services about these requirements.

Evaluations, Discipline, and Discharge

As a supervisor, you should appraise employees with disabilities by the same standards of production/performance as all other employees are appraised.

An employee who needs an accommodation in order to perform a job function should not be evaluated on his or her ability to perform the function without the accommodation, and should not be downgraded because such an accommodation is needed to perform the function.

 You should not give employees with disabilities special treatment, nor should they be evaluated on a lower standard or disciplined less severely than any other employee.

If an employee with a known disability is not performing well, you may ask for medical information or make other professional inquiries that are job-related and consistent with business necessity to discover whether the disability is causing poor performance, and whether any reasonable accommodation or additional accommoda¬tion is needed.

Standards of behavior apply to all State Courts System employees. For example, you may take the same disciplinary action against employees with disabilities that you would take against other employees if the use of illegal drugs or alcohol affects job performance or attendance.

Compensation

An employee's pay may not be reduced because of the elimination of a marginal job function or because he or she was provided specialized or modified equipment as a reasonable accommodation.

An employee who is reassigned to a lower paying job or provided a part-time job as an accommodation may be paid the lower amount that would apply to such positions consistent with the State Courts Systems classification and pay plan and personnel regulations.

Leave

The State Courts System has established attendance and leave policies that are set forth in the State Courts System Personnel Regulations Manual.  These policies are uniformly applied to all employees, regardless of disability. You may not refuse leave needed by an employee with a disability if other employees are permitted leave.

An employee may request that you make adjustments to State Courts System leave policy as a reasonable accommodation. The court is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave. You may also request, for example, approval by the chief justice through the chief judge of your court, for employees to be permitted to donate sick leave to an employee in need.

Section VI: Enforcement and Remedies

All employees and applicants have a right to pursue complaints of employment discrimination through the State Courts System's internal complaint procedure or with the U.S. Equal Employment Opportunity Commission (EEOC).

As supervisors you have a responsibility to ensure that your employment practices are in compliance with the provisions of the ADA. The EEOC may require severe and costly remedies for valid and proven cases of discrimination which may include:

• Compensatory and punitive damages
• Back pay
• Front pay
• Restored benefits
• Attorneys' fees
• Reasonable accommodations
• Reinstatement
• Job offers

The Office of the General Counsel at the Office of the State Courts Administrator is available to assist you with questions concerning the employment provisions of the ADA.  In addition, your local ADA Coordinator has access to a variety of resources that can be used in implementing the ADA.

Appendix

Examples of Physical and Mental Impairments

• A person who has epilepsy and uses medication to control seizures, or a person who walks with an artificial leg would be considered to have an impairment, even if the medicine or prosthesis reduces the impact of that impairment.
• Simple physical characteristics such as eye or hair color, left-handedness, height, weight within a normal range, are not impairments.
• Personality traits such as poor judgment, quick temper, or irresponsible behavior are not impairments.
• A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a specific learning disability, is an impairment.  However, a person who cannot read because he or she dropped out of school is not an in¬dividual with a disability. Lack of education is not an impairment.
• A prison record is not an impairment.
• Stress and depression are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder.  A person experiencing general stress because of job or personal life pressures would not be considered to have an impairment. However, if diagnosed by a psychiatrist as having an identifiable stress disorder, this would be an impair¬ment that may be a disability.
• A person who has a contagious disease has an impairment.  Infection with HIV is an impairment. An individual with tuberculosis which affects the respiratory system has an impairment.

Examples of "Substantially Limits"

• Although cerebral palsy frequently significantly restricts major life activities such as speaking, walking, and performing manual tasks, an individual with mild cerebral palsy that only slightly interferes with his or her ability to speak and has no significant impact on other major life activities, is not an individual with a disability under this part of the definition.
• An individual who sustains a back injury that results in considerable pain and that substantially restricts the ability to sit, walk, stand, and participate in recreational activities is an individual with a disability. An individual who sustains a back injury but is able to continue an active life, including recreational sports, is not considered an individual with a disability.
• A person who has a mild form of arthritis in his or her wrists and hands, and a mild form of osteoporosis, is considered to have a disability. Although neither impairment by itself substantially limits a major life activity, these impairments combined significantly restrict the person's ability to lift and perform manual tasks.
• Temporary non-chronic impairments that do not last for a long time and that have little or no long term impact usually are not disabilities.  Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities.
• If a person suffers a broken leg which takes significantly longer than the normal healing period, and during this period the individual cannot walk, this would be considered a disability. If the leg does not heal properly, and results in perma¬nent impairment, that would be considered a disability.
• If a person has epilepsy that is normally controlled by medication, that person may be disabled if the epilepsy substantially limits one or more major life activities absent medication.  
• A person whose hearing is improved by a cochlear implant may be disabled if the impairment, absent the cochlear implant, substantially limits one or more major live activities.  

Examples of ”Record of a Substantially Limiting Condition”

The ADA protects:

• A person with a history of cancer, heart disease, or other debilitating illness, whose illness is cured, controlled, or in remission, or who has a history of mental illness.
• A person who has been misclassified or misdiagnosed as having a disability such as mental retardation or a learning disability.
• A job applicant who has been labeled mentally retarded by a former employer. The applicant must be interviewed if the resume indicates that he or she meets all the requirements of the job.
• A job applicant who has formerly been a patient at a mental institution and was misdiagnosed, but the misdiagnosis has not been removed from the records.
• A job applicant who has been hospitalized for cocaine addiction, has been successfully rehabilitated, and has not engaged in the illegal use of drugs since receiving treatment.

Examples of "Regarded as Substantially Limited"

• An employee has high blood pressure which does not substantially limit his or her work activities.  If the employer reassigns the individual to a less strenuous job based on his or her high blood pressure, the employer has regarded this person as disabled.
• An employee has a prominent facial scar and was passed over for promotion because the manager felt that others would not want to look at this person. The employer has discriminated against the employee because the employer perceived the employee as a person with a substantial limitation.
• An employer discharged an employee based on a rumor that the individual had HIV. The person did not have an impairment but was treated as though he or she had a substantially limiting impairment.