Title II Technical Assistance Manual

II-4.0000 EMPLOYMENT

Regulatory references: 28 CFR 35.140.

II−4.1000 General. Beginning January 26, 1992, title II prohibits all public entities, regardless of size of workforce, from discriminating in their employment practices against qualified individuals with disabilities.

II−4.2000 Relationship among title II and other Federal laws that prohibit employment discrimination by public entities on the basis of disability. In addition to title II's employment coverage, title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit employment discrimination against qualified individuals with disabilities by certain public entities. Title I of the ADA, which is primarily enforced by the Equal Employment Opportunity Commission (EEOC), prohibits job discrimination --

1) Effective July 26, 1992, by State and local employers with 25 or more employees; and

2) Effective July 26, 1994, by State and local employers with 15 or more employees. Section 504 of the Rehabilitation Act prohibits discrimination in employment in programs or activities that receive Federal financial assistance, including federally funded State or local programs or activities. Each Federal agency that extends financial assistance is responsible for enforcement of section 504 in the programs it funds.

What standards are used to determine compliance under title II? For those public entities that are subject to title I of the ADA, title II adopts the standards of title I. In all other cases, the section 504 standards for employment apply. On October 29, 1992, legislation reauthorizing the Rehabilitation Act of 1973 was signed by the President. The law amended section 504 to conform its provisions barring employment discrimination to those applied under title I of the ADA. Thus, employment standards under section 504 are now identical to those under title I.

II−4.3000 Basic employment requirements. The following sections set forth examples of the basic title II employment requirements. Additional information on employment issues is available in "A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act," issued by the EEOC. (For information about obtaining this document or other information about title I, contact the EEOC at 800‒669- 3362 (voice) or 800‒800‒3302 (TDD)).

II−4.3100 Nondiscriminatory practices and policies. As of January 26, 1992, all public entities must ensure that their employment practices and policies do not discriminate on the basis of disability against qualified individuals with disabilities in every aspect of employment, including recruitment, hiring, promotion, demotion, layoff and return from layoff, compensation, job assignments, job classifications, paid or unpaid leave, fringe benefits, training, and employer- sponsored activities, including recreational or social programs.

II−4.3200 Reasonable accommodation. All public entities must make "reasonable accommodation" to the known physical or mental limitations of otherwise qualified applicants or employees with disabilities, unless the public entity can show that the accommodation would impose an "undue hardship" on the operation of its program.

"Reasonable accommodation" means any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Examples include --

1) Acquiring or modifying equipment or devices;

2) Job restructuring;

3) Part-time or modified work schedules;

4) Providing readers or interpreters;

5) Making the workplace accessible to and usable by individuals with disabilities.

However, any particular change or adjustment would not be required if, under the circumstances involved, it would result in an undue hardship.

"Undue hardship" means significant difficulty or expense relative to the operation of a public entity's program. Where a particular accommodation would result in an undue hardship, the public entity must determine if another accommodation is available that would not result in an undue hardship.

II−4.3300 Nondiscrimination in selection criteria and the administration of tests. Public entities may not use employment selection criteria that have the effect of subjecting individuals with disabilities to discrimination. In addition, public entities are required to ensure that, where necessary to avoid discrimination, employment tests are modified so that the test results reflect job skills or aptitude or whatever the test purports to measure, rather than the applicant's or employee's hearing, visual, speaking, or manual skills (unless the test is designed to measure hearing, visual, speaking, or manual skills).

II−4.3400 Preemployment medical examinations and medical inquiries. During the hiring process, public entities may ask about an applicant's ability to perform job-related functions but may not ask whether an applicant is disabled or about the nature or severity of an applicant's disability.

Public entities may not conduct preemployment medical examinations, but they may condition a job offer on the results of a medical examination conducted prior to an individual's entrance on duty if --

1) All entering employees in the same job category, regardless of disability, are required to take the same medical examination, and

2) The results of the medical examination are not used to impermissibly discriminate on the basis of disability.

The results of a medical entrance examination must be kept confidential and maintained in separate medical files.