precluded from working. Seemingly more objective, but no less discriminatory, are job "requirements" that in fact bear no relation to the successful performance of the job. Moreover, "employers frequently underestimate the capabilities of disabled workers" to perform legitimate job functions. Nagi, Work, Employment & the Disabled, 31 Am. J. Econ. Soc. 21 (1972), cited in Needs Study at 314.24 The Needs Study cited two pioneering studies that confirm that private employers, as well as state and local governments, utilize job "requirements" that bear no relationship to the successful performance of the job. Viscardi, The Adaptability of Disabled Workers, 2:3 Rehab. Rec. 3 (1981), cited in Needs Study at 326 n.45; Greenleigh Associates, Inc., A Study to Develop a Model for Employment Services for the Handicapped (1969), cited in Needs Study at 326 n.46. employees to stand up for jobs that "can just as easily--or cre easily--be performed sitting down" and requiring the "taking of written civil service tests that mentally retarded people cannot Examples given are requiring 23The use of sterectypes about the physical abilities of women are analogous to the stereotypes about disabled people. For example, Weeks v. Southern Bell Telephone & Telegraph Co., 402 F.2d 228 (5th Cir. 1969), involved a regulation that prohibited women from lifting over 30 pounds. The court overruled the regulation because it was based on general presumptions instead of individual ability. See also LeBlanc v. Souchers Fell Telephone & Telegraph Co., 333 F.Sup. 602 (E.D. La., 1971), aff'd, 460 F.D 1229 (5th Car. 1972) cart. denied, 409 C.S. 990 (1972); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Car. 1971). pass for jobs that they are capable of performing." Id. at 326. The Needs Study also reported a situation where "workers suffering upper limb amputations on the job were retained after a job analysis performed by the union involved discovered that, contrary to popular belief, over 80 percent of the work required on the job did not require the use of both arms." Id. at 804. Outmoded stereotypes whether manifested in medical or other job "requirements" that are unrelated to the successful performance of the job, or in decisions based on the generalized perceptions of supervisors and hiring personnel, have excluded many disabled people from jobs for which they are qualified. function of anti-discrimination laws is to assure that decisions are made based on individual merit. The Employers often attempt to justify the rejection of disabled applicants by claiming that hiring disabled workers will cause decreased productivity and safety, and increased absenteeism and costs. An examination of the literature on the actual performance of disabled workers reveals the fallacies those rationalizations contain. According to the Needs Study, the best and most comprehensive study of the job performance of disabled workers was conducted by the Bureau of Labor Statistics, U.S. Dept. of Labor, and appears in Bull. No. 923, The Ferformance of Fhysically Incaized Workers in Manufacturing Industries (1943), cited in Needs Study at 318. In this comprehensive study Department staff examined the employment records of 11,0Co disabled and 18,000 carefully matched non-disabled workers in manufacturing plants throughout the country. Data on productivity, absenteeism, nondisabling injuries, disabling injuries and quits were abstracted. Company records rather than supervisors' impressions were the data source. For each disabled worker, one to three non-disabled workers were matched, not only for sex, age, and occupation but also for plant, shift, and particular job within the same plant and shift. As reported in the Needs Study: The most important finding was that differences between 25 Interestingly, the authors found that many of the manufacturing plants surveyed reinstated policies against hiring disabled workers after having relaxed such policies during the 25 For example, the study specifically stated: The data suggest that. an orthopedic impairment left more abilities than it took away. A man who has lost an a was not necessarily incapable of performing jobs that required the use of two hands. Nor. . . did the survey indicate that the worker who had lost a leg necessarily had to be confined to sedentary cccupations. . . . Men who had lcst a hand were found engaged in machine operations or in handling materials; and workers who had lost a leg were engaged in work requiring considerable walking and moving about. Bureau of Labor Statistics, Bull. No. 923, supra p. 27, a 59. war years. See Needs Study at 296-97. The reinstatement of exclusionary policies, despite the positive employment records of disabled workers, is strong evidence that these standards are not related either to functional skill or ability required for job performance or to a concern for the safety of workers. Other government studies have also found that handicapped workers performed as well as, or better than, their nonhandicapped co-workers. U.S. Bureau of Labor Standards, Dept. of Labor, Bull. No. 122, Proceedings of the National Conference on Workmen's Compensation & Rehabilitation 19 (1950). All studies on the subject support the fact that disabled workers have as good as or better safety records than non-disabled workers. U.S. Dept. of Labor, Bull. No. 122 at 8.1 Government studies have 26 also concluded that the employment of handicapped persons does not affect the premium rates either for non-occupational benefit plans or for workers' compensation. U.S. Bureau of Labor Standards, Dept. of Labor Bull. No. 234 at 10.27 Over the last twenty-five years the Dupont Corporation has conducted a number of studies on the performance of its handicapped employees. The most recent report, E. I. DuPont de 25. See also Pati and Gopal, Countdown on Hiring the Handicapped, 57:3 Personnel J. 144 (1978); Ellner & Bender, Hiring the Handicapped (1980); Kalaenik, Kyths About Hiring the Physically Handicapped, The Ca. Governor's Comm. for Employment of the Handicapped, A Blueprint for Action (1980). 27 See also National Institutes on Rehabilitation and Health Services, Resort of the National Workshop en Rehabilitation and Workmen's Compensation 105 (1971. Nemours & Co., Equal to the Task (1981) (DuPont Survey of Employment of the Handicapped), concluded "Dupont studies over a period of twenty-five years have shown that the performance of handicapped employees is equivalent to that of their unimpaired co-workers. In safety, job duties and attendance, the handicapped hold their own." Id. at 4. The anti-discrimination in employment sections of the ADA are modelled after Section 504 of the 1973 Rehabilitation Act. The primary difference in the ADA and Section 504 is scope, not content. While Section 504 applies only to recipients of federal funds, the ADA would extend employment coverage to all entities covered by Title VII of the 1964 Civil Rights Act. The purpose is simple--to complete the commitment begun in 1973 to extend to Americans with disabilities the same protections against discrimination as that afforded other minorities and women. The statutory framework is designed to ensure that persons with disabilities are treated as individuals and that employment decisions ere not made on the basis of stereotypes about certain disabilities. Only those individuals who are qualified to perform the job in question are protected. Hence, employers are not required to employ an unqualified individual simply because he or she has a disability. The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of |