Craig Hubbell, Director of Human Resources

12121 W. North Ave., Wauwatosa, 53226

(414) 773-1042

Issue

ADA

WFEA

Coverage

The ADA applies to employers with fifteen (15) or more employees

The WFEA covers any entity (with certain exceptions), including the state, engaged in any activity, enterprise, or business employing at least one (1) individual.

Definition of “Disability”

Physical or mental impairment that substantially limits one (1) or more of the major life activities of an individual, or being regarded as having such an impairment, or a record of having such an

impairment.

Real or perceived impairment that:  (a) makes (or is perceived to make) achievement unusually difficult, or (b) limits (or is perceived to limit) the capacity to work.

For purposes of defining disability, "impairment" means a deterioration, a lessening, or damage to a normal bodily function or bodily condition."

Major Life Activities

EEOC regulations define "major life activities" as functions such as caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.

Makes achievement unusually

difficult - The limitations on an individual’s ability to achieve and

capacity to work must be beyond normal limitations that might render a person unable to make certain achievements or perform every possible job.

The inquiry concerning the effect of an impairment is not about "mere difficulty," but about "unusual difficulty."

Limits the Ability to Work – Refers to the ability to perform the particular job in question.

Asymptomatic Conditions

Asymptomatic HIV/AIDS is

a disability where it substantially limits the major life activity of reproduction.

Diseases such as HIV/AIDS may be disabilities under the WFEA even if in remission or the person is not otherwise actively suffering from the

effects of the disease.

Exclusions From Coverage

A person who is not a "qualified individual with a disability" is not covered by the ADA.

A person who is currently engaging in the illegal use of drugs is not a "qualified individual."

Homosexuality and bisexuality are not impairment and, therefore, not disabilities.

Other conditions that are specifically excluded from ADA coverage include:

Transvestism, transexualism, pedophilia, exhibitionism, voyeurism, gender identity

disorders not resulting from physical impairment, or other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, psychoactive substance use disorders resulting from the current illegal use of drugs.

It is not discrimination where the disability is reasonably related to the individual’s ability to adequately

undertake the job-related responsibilities of that individual’s employment, membership, or licensure.

Reasonable

Accommodation

The employer must demonstrate that accommodation would impose "undue hardship" on operation of business.

Employer has the burden of proving that an accommodation would pose a "hardship" on the employer’s program, enterprise, or business.

It is inappropriate to conclude as a matter of law that any particular kind of action is not required as an accommodation.

An accommodation may be "reasonable" and still pose a "hardship" to the employer.

Essential Functions

The fundamental job duties

of the employment position which the disabled individual holds or desires, but not the marginal functions of the position.

A job function may be essential for the following reasons:

- The reason the position exists is to perform that function

- There are a limited number of employees available among whom the performance of that job function can be distributed

- The function may be highly specialized so that the incumbent in the position is hired for his/her expertise or ability to perform the job

Evidence of whether a particular function is essential includes:

- The employer’s judgment as

  to which functions are essential

-  Written job descriptions prepared before advertising or interviewing applicants for

  the job

-  The amount of time spent on the job performing the function

-  The consequences of not requiring the incumbent to perform the functions

-  The work experience of past incumbents in the job

-  The current work experience of incumbents in similar jobs

No provision of the WFEA uses the term “essential function.”

Direct Threat

The employer has the burden of showing that the employee presents a "direct threat" (significant risk) to the health or safety of others that cannot be eliminated by reasonable accommodation.

To evaluate whether an employee can "adequately undertake the job-related responsibilities" of a particular job, the present and future safety of the individual, of the individual’s co-workers and, if applicable, of the general public may be considered.

Medical Exams and Inquiries

The ADA specifically prohibits disability-related inquiries before a conditional offer of employment is given.

There is no specific prohibition in the WFEA relating to pre-employment disability-related inquiries.