the employment position that such individual holds or desires."

The term "reasonable accommodation" is a term of art from the

Section 504 regulations.

The ADA also incorporates the Section

504 limitation on reasonable accommodation, which is that of "undue hardship." The term discrimination includes the failure to make reasonable accommodation unless the covered entity "can demonstrate that the accommodation would impose an undue hardship on the operation of its business." The Section 504 regulations establish a context for determining whether an accommodation is reasonable or poses an undue hardship. The relevant section, 45 C.F.R. §84.12, provides:

(b) Reasonable accommodation may include (1) making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or mcdification of equipment or devices, the provision of readers or interpreters, and other similar actions.

(c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of a recipient's program, factors to be considered include:

(1) The overall size of the recipient's program with respect to number of employee, number and type of facilities, and size of budget;

(2) The type of the recipient's operation, including the composition and structure of the recipient's workforce, and

(3) The nature and cost of the accommodation needed.

Hence, reasonable accommodation is a flexible standard that balances the rights of the applicant or employee with the

employer's legitimate business interests. The determination cf undue hardship must therefore be made on an individual basis. As

explained in the "Analysis of the Final Regulation," 42 Fed. Reg.

22685, 22688 (1977):

Paragraph (c) of this section sets forth the factors
that the Office for Civil Rights will consider in
determining whether an accommodation necessary to
enable an applicant or employee to perform the duties
of a job would impose an undue hardship. The weight
given to each of these factors in making the
determination as to whether an accommodation

constitutes undue hardship will vary depending on the
facts of a particular situation. Thus, a small day-
care center might not be required to expend more than a
nominal sum, such as that necessary to equip a
telephone for use by a secretary with impaired hearing,
but a large school district might be required to make
available a teacher's aide to a blind applicant for a
teaching job. Further, it might be considered
reasonable to require a state welfare agency to
accommodate a deaf employee by providing an
interpreter, while it would constitute an undue

hardship to impose that requirement on a provider of
foster home care services.

In determining whether an individual is qualified under the ADA, an employer may not use selection criteria that identify or limit persons with disabilities unless the criteria can be shown by the covered entity to be necessary and related to the ability of an individual to perform the essential functions of the particular employment position. As demonstrated earlier, persons with disabilities are cften subject to disqualifying physical cr mental criteria that bear no relationship to jck performance.

To assure that qualified applicants are not excluded because of a physical or mental condition, it is critical that the selection procedure not included pre-employment inquires that serve solely to identify a person's disability. It has been common practice for pre-employment questionnaires to include

sweeping questions such as: do you have any physical defect; have you ever been treated for mental illness; have you ever been hospitalized; do you ever experience seizures. These types of intrusive inquiries identify a person's disability without serving any legitimate job-related purpose. In order to insure that improper bias does not enter into the selection process, it is critical to limit employers' inquires to those that evaluate a person's ability to perform job-related functions. As explained in the Section 504 Regulations, Analysis, supra, Fed. Reg. at 22669, "an employer may not ask on an employment form if an applicant is visually impaired but may ask if the person has a current driver's license." This type of procedure assures that subjective stereotyping about disabling conditions, which as shown above is prevalent, does not enter into the determination of whether an applicant is qualified for the job. As in Section 504 and Title VII, the ADA's non

42

discrimination provisions extend to "job application procedures, the hiring or discharge of employees, employee compensation, advancement, job training, and other terms, conditions and privileges of employment.

In order to provide uniform enforcement procedures, the ADA makes the EEOC the enforcing agency. It is expected that the EEOC and other federal agencies with jurisdiction over the employment practices cf private employers will work cooperatively to enforce the anti-discrimination provisions. his has been done in instances where there is over-lapping jurisdiction in

employment discrimination cases under Title VI, Title VII, Title IX and Executive Order 11246. Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial Assistance, 28 C.F.R. 42.601-613 (January 25, 1983). Both the Office of Civil Rights and the Office of Federal Contract Compliance refer individual cases of employment discrimination to the EEOC.

Finally, under the ADA a private right of action is available and the remedies of Title VII and 42 U.S.C. section 1981 are available, as in race and national origin employment cases. Section 1981 damages are limited to cases of intentional discrimination. Punitive damages require a showing that the defendant acted "wantonly, maliciously or in bad faith." The Senate substitute limits ADA employment discrimination remedies to those available under Title VII. This was a major concession to allay the concerns of the business community, the administration and some members of Congress. It is intended that the remedies under the ADA will parallel any changes made in

Title VII.. :

Section 605 of the ADA allows for attorney's fees to the prevailing party. This provision has long been recognized as essential to the right of protected groups, in order to fully utilize anti-discrimination statutes. As Senator Cranston stated when enacting the attorney's fees provision in the 1978

Amendments to Section 504, "a right without a remedy is no right

at all."

The Anti-Discrimination in Employment Sections of the
Rehabilitation Act Have Created Workable Standards Which
Take Into Consideration the Rights of Workers With
Disabilities and the Business Interests of Employers

- A review of the case law prohibiting employment discrimination under the 1973 Rehabilitation Act provisions demonstrates a reasoned approach that considers both the rights

of workers with disabilities and the business interests of

employers. The cases also illustrate the drastic need for antidiscrimination provisions to assure that people with disabilities who are qualified to work are not forced onto the welfare rolls by employer ignorance and prejudice.

The threshold jurisdictional issue in Section 504 cases, as in the ADA, is whether a person is "handicapped" or "disabled."28 The U.S. Supreme Court's seminal decision on this issue is School Board of Nassau County v. Arline, 107 S.Ct. 1123 (1987). In that case the court was called upon to interpret the Rehabilitation Act definition of "handicapped" person, which is identical to that contained in the ADA. The term includes an individual who (i) has a physical or mental impairment, which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

28 The definition of persons with disabilities in the ADA is not intended to be substantively different than the definition of "handicapped person" in Section 504. The substitution of disabilities for handicaps merely reflects a preference in terminology.