On May 15, 2013, pursuant to its published goal of providing up-to-date guidance on the requirements of antidiscrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC) issued four revised Question and Answer documents to help applicants, employees and employers understand the complex issues surrounding disability discrimination. These documents address the EEOC’s position on how the Americans with Disabilities Act (ADA) applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities, and they are now available on the EEOC’s website at “Disability Discrimination, The Question and Answer Series.”
“Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability,” said EEOC Chair Jacqueline A. Berrien. “Many of them are looking for jobs or are already in the workplace,” Berrien said, and “[w]hile there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”
The revised documents are intended to reflect the changes to the definition of disability made by the ADA Amendments Act (ADAAA) in “plain, easy-to-understand language.” Unquestionably, the ADAAA made it easier to conclude that individuals with a wide range of impairments – including cancer, diabetes, epilepsy, and intellectual disabilities – are protected by the ADA. The newly issued documents contain not only a general discussion of each type of condition and the prohibitions against discrimination, harassment, and retaliation against individuals with such conditions, but they also address answers to questions about such topics as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.
Although the EEOC guidance on these issues is not binding law, it clearly sets forth the EEOC’s views on these topics and telegraphs to employers what the EEOC’s position will be should similar issues arise in matters pending before or involving the agency. In addition, the guidance also contains multiple examples and fact patterns employers may find helpful in making decisions in their workplaces when faced with situations involving applicants and employees having the identified conditions. Given the EEOC’s focus on disability discrimination in its enforcement activity (see Employer Alert of April 29, 2013, entitled “Pregnancy and Disability Discrimination the Focus of EEOC Enforcement Activity”), employers would be well served to carefully review these newly issued Q & A’s.