CODI: Cornucopia of Disability Information

EMPLOYMENT: Rights and Responsibilities of Persons with Disabilities

                         EMPLOYMENT
                         

     People are employed for their abilities -- and people with
disabilities do have abilities which can be of value to your agency.  From
recruitment, through preemployment inquiries, hiring, benefits, discipline
and discharge, people with disabilities must be treated like all other
current or prospective employees, except to the extent that reasonable
accommodation may be necessary.  In some cases (where your agency is a
Federal contractor) affirmative action must be taken to employ people with
disabilities to overcome historical underemployment of such individuals.
In still other cases, Civil Service laws make it possible to employ people
who, due to disabilities, may be unable to take a competitive examination.

     This section will provide guidance on each stage of the employment
process, indicating when elements are required or optional, depending on
whether your agency is a Federal contractor.  As discussed, affirmative
action requirements cover Federal contractors and their subcontractors, but
other agencies may choose to adopt similar policies voluntarily.

Employment Discrimination Prohibited

     New York City and State Human Rights Laws prohibit any employer of four
or more people from discriminating on the basis of disability in employment.

     Employers may not: 

     *  refuse to employ 

     *  pay less to

     *  deny privileges to

     *  provide less favorable conditions or terms of 
        employment to

an individual in whole or in part because the individual has a disability.
If a person cannot perform the essential functions of the job in question --
even given reasonable accommodation -- such conduct would not be prohibited
since it would not be based in whole or in part on that individual's
disability.  The person simply would not be protected.

Among activities in which discrimination is prohibited are: 

     * recruitment, advertising, processing of applications 
       for employment;
     
     * interviewing;
     
     * hiring (including rehiring);

     * rates of pay, any other form of compensation, changes 
       in compensation;

     * job assignments, job classifications, organizational 
       structures, position descriptions, lines of progres
       sion, seniority lists;

     * leaves of absence, sick leave, any other leave;

     * fringe benefits of any nature available by virtue of 
       employment, whether or not administered by the 
       recipient;

     * working conditions;

     * training opportunities, such as apprenticeships, 
       professional meetings, conferences (including finan-
       cial assistance for such opportunities);

     * employer sponsored activities, including social and 
       recreational programs;

     * promotion, upgrading, award of tenure;
     
     * transfer;

     * discipline, demotion; 

     * layoff, right of return from layoff;

     * separation;

     * any other term, condition or privilege of 
       employment.[16]

     Discrimination on the basis that an individual has a disability and is
accompanied by a guide, hearing or service dog similarly is prohibited by
the State Civil Rights Law without regard to the number of people
employed.[17]

     Section 504 of the Federal Rehabilitation Act also provides protection
against employment discrimination analogous to that under the City and
State Human Rights Laws, without regard to the employer's size, but, as
discussed above, covers only recipients of Federal financial
assistance.[18] Employers may not limit, segregate or classify applicants
or employees in any way which adversely affects their opportunities or
status because of their disabilities.[19]


Defining Who Is Protected

     An individual is protected from employment discrimination on the
basis of disability if that person can, with reasonable accommodation to
the person's disability, perform the essential functions of the job in a
reasonable manner.  Although definitions under City, State and Federal laws
vary, this is the essence of the standard which has evolved.[20]

     Determining who is a covered individual requires (1) defining
"disabilities", (2) identifying the "essential functions" of a job, and (3)
determining what accommodations are reasonable.

(1) Individual with disabilities means any person who:

     * has a physical or mental impairment that substan-
       tially limits one or more major life activities such 
       as walking, seeing, hearing, talking, selfcare, 
       learning, working; or

     * has a record of such an impairment, such as a past 
       mental illness or a history of cancer; or

     * is regarded as having such an impairment, for exam-
       ple, because of a scar or limp, or testing positive 
       for HIV infection.[21]


(2) Physical or mental impairment means:

     * any physiological disorder or condition, cosmetic 
       disfigurement, or anatomical loss affecting one or 
       more of the following body systems: Neurological; 
       musculoskeletal; special sense organs; respiratory, 
       including speech organs; cardiovascular; 
       reproductive; digestive; genitourinary; hemic; 
       lymphatic; skin; or endorcrine; or

     * any mental or psychological disorder, such as mental 
       retardation, organic brain syndrome, emotional or 
       mental illness, and specific learning disabilities.

      Examples of "physical or mental impairments" include orthopedic,
visual, speech, hearing and learning diseases and conditions, cerebral
palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, and addiction to
drugs or alcohol.  These are only examples; other impairments are covered
as well.[22]

     Consistent with the general definition, for purposes of employment,
the term "individual with disabilities" does not include any person who is
an alcoholic or drug abuser whose current use of alcohol or drugs prevents
that individual from performing the duties of the job in question, or whose
employment, because of current alcohol or drug abuse, would constitute a
direct, substantial threat to the safety or property of others.[23] Alcohol
and drug abusers who are performing their jobs in a reasonable manner and
who do not pose a threat to the safety or property of others are covered by
the State Human Rights Law.  This is a rapidly developing area of the law
and actions planned in this area should be reviewed carefully in light of
current law.  It may be appropriate to offer opportunities for treatment
for these conditions as a reasonable accommodation if such treatment would
enable the individual to perform the essential functions of the job.

     A similar distinction is made for people with currently contagious
diseases.  People are not protected by law if they have a currently
contagious disease or infection and, because of that condition, would be (1)
a direct and substantial threat to the health or safety of other
individuals or, (2) unable to perform the essential duties of the job.[24]
However, a contagious disease would not pose a direct or substantial health
threat unless there is a significant risk of transmission in the ordinary
course of employment -- and if that risk cannot be alleviated by reasonable
accommodations.  People with contagious diseases who pose no direct,
substantial health or safety threat and who are able to perform their jobs
with reasonable accommodation are protected.[25] substantial health threat
unless there is a significant risk of transmission in the ordinary course
of employment -- and if that risk cannot be alleviated by reasonable
accommodations.  People with contagious diseases who pose no direct,
substantial health or safety threat and who are able to perform their jobs
with reasonable accommodation are protected.[25]

     In reality, these "special" rules for people with contagious diseases
or who abuse alcohol or illegal drugs boil down to the same basic rule used
for everyone else: can they, with reasonable accommodation, perform the
essential functions of the job?  A person whose abilities are impaired by
substance abuse will not be able to perform the job and
 one who presents a substantial and direct threat of harm to coworkers or
the general public cannot perform the job with the essential element of
safety.  From the standpoint of considering the person's ability, the
analysis would be no different for a bus driver whose eyesight had become
impaired.


(3) Reasonable accommodation may include:

     * making facilities used by employees accessible and 
       safe, for example, by use of ramps, wider doorways, 
       lever door handles, adequate tactile warnings (such 
       as raised, scored strips before stairways), signage, 
       limitations on protruding objects in accessible 
       routes, audible/visible signals, and control place-
       ment (such as location of light switches where a 
       person who uses a wheelchair can reach them); 

     * job restructuring, for example, by having a person 
       who is deaf pick up more filing or correspondence 
       duties from a coworker who handles most of the first 
       employee's telephone tasks; by having a person who 
       uses a wheelchair do proofreading in exchange for a 
       colleague retrieving books from high shelves; by 
       eliminating nonessential tasks; or by permitting a 
       person who has dyslexia or a visual impairment to 
       listen to a memorandum as dictated on tape, rather 
       than requiring that he or she read the typed version; 

     * modifying work schedules, such as by permitting 
       flextime; by allowing an employee with a mobility 
       impairment to arrive and leave early or late to avoid 
       peak rush hour travel; 

     * purchasing or modifying equipment, for example, by 
       raising or lowering of office equipment, by providing 
       a Telecommunication Device for the Deaf (TDD), large 
       print copiers, magnification devices, braillers, 
       special tape recorder/players, reading machines, or 
       adaptive equipment for telephones, computers and 
       other machines; 

     * provision of assistive services, such as readers and 
       interpreters, or permitting use of directory assist-
       ance rather than requiring use of telephone books.[26] 

     Employers are required to make reasonable accommodation to the known
physical or mental limitations of an applicant or employee with
disabilities who, when such accommodations are made, could perform the
essential tasks of the job.  An employer who claims that a reasonable
accommodation cannot be made must prove the accuracy of that assertion.
Just as the accommodation needed by different individuals will vary, the
accommodation which will be reasonable generally will depend on the
circumstances of each situation.  An accommodation would not be
reasonable if it would impose undue hardship on the employer.


     Factors in determining undue hardship include:

     * the overall size of the program in terms of the 
       number of employees, the number and type of 
       facilities, and size of budget;

     * the nature of the employer's operation, such as the 
       composition of its workforce; and

     * the nature and cost of the accommodation needed.[27]   

For most City agencies, accommodation would be considered reasonable in
many instances.  However, in monitoring compliance among smaller
subrecipients (including subcontractors), analysis of the listed factors
may indicate that not all forms of accommodation would be reasonable.  MOPD
will be happy to assist in analyzing requirements as well as regulatory and
case law.
   
    One example often cited is that a small day-care center (which is not
part of a large agency) 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.[28]

     A state social service agency with a $300,000,000 budget was required
to provide readers, electronic devices or other suitable accommodations to
income maintenance workers who were blind.  These workers required
assistance to read various materials and to complete standardized public
assistance forms.  The court ruled that the agency was required to provide,
and to absorb the expense of, reasonable accommodation of the blind workers.
The modest cost of providing half-time readers, and the ease of adopting
that accommodation without any disruption of the agency's services, did
not impose undue hardship on the agency.  Note that the court looked to the
agency as a whole, rather than to the unit, or even the division, in which
the employees worked.[29]

     Reassignment of some heavy work from an employee whose asthmatic
condition restricted her ability to perform strenuous work was required when
the strenuous tasks accounted for 12% of her time over a three-year period
and light-duty assignments occupied at least 75% of her work hours during
the same period.  Reassignment of some of the heavy work to other
employees to the extent necessary did not require elimination of essential
functions of the individual's job.[30]

     However, in an agency with a small staff, each member of which has
substantial independent responsibilities, shifting of tasks may not be
reasonable.  An individual with a nervous condition and a heart condition
was denied a position as a park technician without discrimination on the
basis of disability where it would have been necessary for other park
technicians to perform many of the applicant's duties had he been hired.
Given that only two to four other workers were available at any one time to
patrol 150,000 acres and in light of the agency's limited resources, such
doubling up would impose an undue hardship on the employer.[31]

     The employee or prospective employee generally knows best which
accommodations he or she has found most helpful in performing tasks likely
to be encountered on the job, as well as which resources may provide the
best advice about making accommodations appropriate to the job.  MOPD also
may be able to provide suggestions and/or work with the indi-
 vidual, as well as with agencies and organizations familiar with the type
of disability involved.  The timing and phrasing of questions about
disabilities and accommodations present some legal issues and are discussed
later in this volume.

     While knowledge gained from the employee and other sources should be
given serious consideration, the employer is not necessarily required to
honor the employee or prospective employee's request.  However, the
alternative adopted by the employer must be comparably effective in
permitting the individual to do the essential tasks of the job.  For
example, if a $1 dial overlay with large numbers will enable an employee
with a visual impairment to read the telephone dial well enough to dial
numbers efficiently in the context of the employee's tasks, the employee
cannot demand installation of a touchtone telephone, although remembering
the positioning of the buttons and the tone each produces makes it easier
to dial than a rotary telephone.  Of course, if the visual impairment is
severe enough, or if extensive dialing is needed, large numbers on a rotary
dial may be of little help -- and a touchtone telephone may be required.

     An employer is not required to alter fundamentally its program.[32]
Many accommodations, however, do not fundamentally affect the nature of an
operation, and many accommodations are not costly.  Accommodation may
require allowing the performance of certain job tasks in a nontraditional
manner that is just as effective as more conventional methods.  As noted
above, the person determining the accommodation to be made should discuss
the situation with the individual with a disability in an appropriate
context.

     New York State has specific laws protecting people who have
disabilities and are accompanied by guide, hearing or service dogs.  Not
only is it prohibited to discriminate against such people because of their
disabilities and use of dogs, but they also have the right to keep their
dogs with them at all times.  People who are blind and use canes likewise
may keep their canes with them.[33]


Affirmative Action

     As discussed earlier, under Sec. 503 of the Federal Rehabilitation
Act, employers with Federal contracts of $2,500 or more annually (for
services, supplies, use of real property, etc.) must:

     * take affirmative action to employ and promote people 
       with disabilities at all levels of employment;
     * continue advising employees of the employer's duty to 
       comply with the law; 

     * review all personnel processes to determine whether 
       present procedures assure thorough consideration of 
       the job qualifications of applicants and employees 
       with disabilities for job vacancies and training 
       opportunities;[34] and 

     * include an affirmative action clause in each of its 
       covered contracts and subcontracts (including modifi-
       cations, renewals, or extensions if not included in 
       the original contract).[35]  

     If your agency has 50 or more employees and Federal 
contracts of $50,000 or more (at least one of which reaches 
$2,500) in any 12 month period, it also must:

     * have a written affirmative action plan at each 
       establishment (for example, each day care center, 
       each police precinct) within 120 days of becoming 
       covered by this provision which sets forth the 
       agency's affirmative action policies, practices and 
       procedures (this may be part of your other 
       affirmative action programs); and     

     * designate responsible employees to carry out the 
       affirmative action plan.[36]    
    
     Affirmative action applies to all employment practices, including
those listed earlier in connection with employment discrimination
prohibited under Sec. 504 (as well as under City and State laws).[37] Of
course, Federal contractors are also recipients of Federal funds and so must
meet the requirements of Sec. 504 as well.

     Again, necessary contract provisions should be sought from the Law
Department.


Making It Work

     To implement nondiscrimination and affirmative action policies
effectively, all employees throughout each agency should be made aware of
the information in this manual -- and that this represents the policy of the
City, including your agency.  Interviewers must be trained to conduct an
interview with an individual who has a disability so that applicant has the
same opportunity to demonstrate his or her abilities as an applicant without
a current disability and to ensure, as discussed later, that inappropriate
questions about disabilities are not asked.  Supervisors should be given
guidance on how to respond to requests for reasonable accommodation.
Employees without current disabilities should be made aware of the
importance your agency places on accommodating people with disabilities,
both so that those nondisabled employees can participate with more
understanding when called upon to help make accommodations and so such
employees will appreciate that they can expect nondiscriminatory treatment
should they develop a disability.  Employees with disabilities also
should be made aware of the parameters of reasonable accommodations so
that their expectations can be realistic.  People outside the agency must
learn of your policy as well if you are to attract the best talent
available and to do your part in the City's effort to set a positive
example for employers in the private sector.


Getting the Word Out -- Inside

     Internal dissemination of agency policy can be accomplished in a
variety of ways, including:

     * conducting special meetings with executive, manage-
       ment, and supervisory personnel to explain the 
       importance of not discriminating, and, where appro-
       priate, affirmative action policy and individual 
       responsibility for effective implementation;

     * discuss agency policy in employee orientation;
          
     * develop internal communication through agency news-
       letters, bulletins and otherwise, to foster under-
       standing, acceptance and support among the agency's 
       executive, management, supervisory and all other 
       employees.  

     Federal contractors should develop procedures to ensure that their
affirmative action obligations to employ and promote individuals with
disabilities as well as the similar obligations of any subcontractors --
are being fully implemented; (non-contractors may want to undertake similar
action to further City policy in this area).

     The Office of Federal Contract Compliance Programs has established the
procedures above as ways for Federal contractors to fulfill their
affirmative action obligations;[38] these methods also may be useful in any
agency's efforts to prevent unlawful discrimination.

     Another key component of an agency's communication with its employees
regarding the importance of nondiscrimination is the designation of an
employee who is responsible for coordinating the agency's compliance efforts
under City, State and Federal laws prohibiting discrimination against people
with disabilities.  Secs.  503 and 504 have some specific requirements in
this regard.[39] The name of the executive employee who must be designated
to manage affirmative action activities under Sec. 503 should appear on
all internal and external communications regarding the contractor's
affirmative action program.[40] The executive employee responsible for
Sec. 503 compliance should be the same person designated as responsible for
all other Equal Employment Opportunity functions so that disability issues
receive the same level of visibility and treatment as issues affecting other
minorities and women.  Although City and State laws do not require such a
designation, the Equal Employment Opportunity Officer also should be
responsible for compliance with those laws.  In the area of disability, as
discussed in a later portion of this volume, issues of program
accessibility, as well as of employment, arise.  To the extent that an
agency's size and/complexity indicate, a Disability Access Coordinator might
be named to work with the Equal Employment Opportunity Officer on program
accessibility matters.

     Additionally, for Federal contractors and subcontractors (as
discussed under the Affirmative Action section above), the agency must:

     * include its affirmative action plan in its policy 
       manuals, setting forth its affirmative action 
       policies, practices and procedures; and

     * maintain its written affirmative action program at 
       each establishment (e.g., each day care center, each 
       police precinct), available for inspection by any 
       employee or applicant for employment upon request.[41]

     Even those not required to do so may wish to include nondiscrimination
policies in policy manuals.


Outreach and Recruitment

     To find people with disabilities who may meet the needs of your agency,
you might, among other things:

     * use the assistance of recruiting sources, such as 
       MOPD;

     * establish contacts with social service agencies (for 
       example, the New York Lighthouse, the Jewish Guild 
       for the Blind), placement offices of local colleges 
       and high schools, or vocational rehabilitation 
       agencies (for example, the New York State Office of 
       Vocational and Educational Services for Individuals 
       with Disabilities (VESID, formerly the Office of 
       Vocational Rehabilitation (OVR)) and the New York 
       State Commission for the Blind and Visually 
       Handicapped (CBVH)), the Mayor's Office for People 
       with Disabilities, the Independent Living Centers in 
       each borough (namely, Bronx Independent Living 
       Services, Brooklyn Center for Independence of the 
       Disabled, Center for Independence of the Disabled in 
       New York, Queens Independent Living Center, Staten 
       Island Center for Independent Living), membership 
       groups (such as the New York City Civic Association 
       of the Deaf and Disabled In Action), or groups such 
       as the MS Society and United Cerebral Palsy, for such 
       purposes as advice, technical assistance and referral 
       of potential employees; and

     * review employment records to determine the availabil-
       ity of promotable and transferable individuals with 
       known disabilities presently employed, considering 
       whether their present and potential skills are being 
       fully utilized or developed.

     Whether or not your agency has an affirmative action obligation to
take these steps,[42] they can be helpful in finding eager and qualified
employees.  In any event, the following notice requirements apply to
recipients of Federal financial assistance, whether or not they are
contractors.

     If your agency is a recipient of Federal financial assistance, subject
to Sec. 503 and/or Sec. 504, you must take appropriate steps to notify
participants, beneficiaries, applicants, employees, as well as any
unions or professional organizations holding collective bargaining or
professional agreements with your agency, that your agency does not
unlawfully discriminate on the basis of disability.  Special means of
communication such as sign language interpreters, large print and Braille
should be used to notify those with impaired vision or hearing.  The notice
must identify the designated employee responsible for coordinating your
agency's nondiscrimination and/or affirmative action efforts.[43]


Pre-Employment Inquiries and Tests

     Employers may not use any kind of employment application form or ask
any question during the interviewing process which either directly or by
implication expresses any discriminatory policy or practices based upon
disability.[44] Nor may an employer make a preemployment inquiry or
conduct a preemployment medical examination of an applicant for the
purpose of determining whether the applicant is an individual with a
disability -- or the nature or severity of a disability.[45]

     The New York State Division of Human Rights has ruled that it is a
violation of the State Human Rights Law (which applies to all City agencies)
to ask any of the following questions:

     "Do you have a disability?"

     "Have you ever been treated for any of the following 
      diseases ...?"

     "Do you have now, or have you ever had, a drug or 
      alcohol problem?" 

     "It is unlawful to inquire, either directly or indi-
     rectly, about an applicant's/employee's disabilities.  
     An employer may inquire only whether a prospective 
     employee can perform specific tasks in a reasonable 
     manner.  An employer may not disqualify an applicant/
     employee because of suspected future risk to his/her 
     health of performing a specific job.  The above limita-
     tions apply equally to questions which may be asked of 
     an employee who applies for or is under consideration 
     for promotion, transfer, upgrading, etc.  They also 
     apply equally to questions asked by a prospective 
     employer, either orally, by telephone, in writing or 
     otherwise, of a former employer, with reference to an 
     applicant or a person under consideration for 
     employment."[46]
     

     The above prohibitions should not be confused with the ability to make
pre-employment inquiries into a potential employee's ability to perform
job-related functions.  The objectives of the legislation are to limit
practices which are based on assumptions that people with disabilities have
limited ability to perform jobs, and to promote practices which permit each
individual an equal opportunity to demonstrate his or her ability to do
the job in question.  The distinction between conducting discriminatory
testing and the need to determine an applicant's individual skills must be
maintained.

     Although general questions, such as "do you have or have you had a
heart condition" or "have you been treated for any of the following
conditions" are impermissible, an employer may make a pre-employment
inquiry into the ability of any applicant to perform job-related functions;
the fact that a person has an apparent disability should not make that
individual any more or less subject to such inquiries.  However, care must
be taken to ensure that such inquiries are specific, objective and
verifiably job-related.  An employer may not ask if an applicant has a
visual impairment, but may inquire whether the applicant has a current,
valid driver's license, if driving is an essential duty for the position in
question.  Questions concerning whether or what accommodations might be
needed are not permissible until after the employer has decided to offer the
position to the individual in question (subject to the reasonableness of any
necessary accommodations).

     Since this subject is so important, it is worth considering several
different interview situations which are likely to arise: (1) a person with
a disability who identifies it and raises the subject of needed
accommodations; (2) a person with an apparent disability who does not raise
the subject; and (3) a person who the interviewer suspects has a disability
but who does not raise the subject.  In all instances, whether or not a
disability is involved, the interviewer should review with the candidate
the agency's equal employment opportunity policy, as well as all the
functions of the job, asking what experience the applicant has had
performing each task and whether the applicant foresees any difficulty
performing each function in the context of the job sought.

     (1) Person with a disability (whether apparent to the interviewer or
otherwise identified by the applicant) seeking reasonable accommodations.
The interviewer always should bear in mind that the initial hiring
(promotion, transfer, etc.) decision may not be based on the possible need
for an accommodation; whether an accommodation is needed, what form or forms
that accommodation might take and whether such accommodation would be
reasonable are issues for determination after the initial decision. Any
person requesting an accommodation to a disability should be told that
whether and to what extent accommodations might be needed are issues to be
decided after a determination of the applicant's qualifications in relation
to the requirements of the job and the relative qualifications of other
applicants.  If, when asked whether he or she could perform a function in
question, the applicant states that he or she could -- if an appropriate
accommodation were provided -- the answer should be considered as being
affirmative.  With this in mind, however, once the applicant has raised the
subject of disability and/or accommodation, the person may be asked -- in a
separate interview, after an initial decision has been made to hire the
individual (subject to the reasonableness of any necessary accommodations)
-- to specify which job functions might be affected and the interviewer
might explore with the applicant alternate ways in which those job functions
could be performed.  If one or more non-essential functions could not be
performed, even with reasonable accommodation, discussion then can shift to
functions of other jobs which the person could perform, leading to possible
function swapping with an employee in another job.

     (2) Person with apparent disability who does not raise the subject.
After reviewing the functions of the job with the applicant (in the same way
this would be done with any applicant), if the interviewer believes that the
apparent disability is likely to interfere with performance of essential job
functions, the interviewer might become more specific in describing
particular job functions and ask whether the individual would be able to
perform those functions (for example, focussing on past experience in using
a telephone in a job which requires substantial telephone use).  Of course,
it would be better to incorporate that degree of specificity in the
initial questions, since a person with a disability is to be treated in the
same way as all other applicants.

     (3) Interviewer suspects disability, but individual does not mention
it.  If the preliminary review of equal employment opportunity policy, job
functions, experience and possible difficulties in performing the functions
in the context of the particular job has not brought forth some statement
concerning the disability, the interviewer should review carefully in his
or her own mind the evidence which leads him or her to believe that the
candidate has a disability which might affect job performance.  If this
review does not dispel the suspicion, the interviewer might focus discussion
generally on the function the interviewer believes might be affected.  As
in any situation where an interviewer has doubts about an applicant's
ability to perform a function (based on the applicant's experience), the
interviewer may press for more information about the applicant's experience
with tasks such as those in question.  It always should be borne in mind
that all applicants -- including those with suspected disabilities -- are
entitled by law to equal consideration.  In the final analysis, if even such
general questions do not elicit discussion of disability and accommodations
from the applicant, the matter should not be pursued.  If the applicant
proves incapable of doing the job and reasonable accommodations cannot
alleviate the problem at that time, the employee may be separated.

     In no event should the interviewer make assumptions about whether a
person with a disability might be prevented by the disability from
performing functions of a job.  This is particularly true with respect to
functions unrelated to the disability the person does have.  For example,
one who uses a wheel-chair will not necessarily have difficulty reading,
writing, or using a typewriter or a telephone.  Franklin D. Roosevelt was
able to serve as President; Peter Stuyvesant was one of our City's first
leaders; this book was written and typed largely by a blind lawyer; and
thousands of other City employees with disabilities use their abilities to
serve our City throughout the years.

     An employer may not use employment tests or criteria which are
unrelated to essential job elements or which tend to screen out qualified
individuals with disabilities.[47 Where a test does tend to screen out
individuals with disabilities, it may be used only if (1) the test or other
selection criteria are shown to be job-related for the position in
question,[48] and (2) alternative job-related tests are unavailable.[49]

     Similarly, contractors have an affirmative obligation to review
physical or mental job qualification requirements to ensure that, to the
extent qualification requirements tend to screen out qualified individuals
with disabilities, they are job-related and are consistent with business
necessity and the safe performance of the job.[50]

     Some impairments affect an applicant's speaking or reading skills and
some applicants may be unable to demonstrate fully their ability to
perform job tasks based on traditional tests.  An employer must ensure
that tests given to applicants or employees with impaired sensory, manual
or speaking skills accurately reflect what they purport to measure.[51] This
may require that tests be adapted for those individuals.[52]
  
     For individuals with disabilities who are unable to take competitive
examinations, Section 55-a of the New York State Civil Service Law permits
the employment of persons with physical or mental disabilities in Civil
Service positions on a noncompetitive basis.  A City agency, on its own
initiative or at the suggestion of an applicant or of MOPD, may request
conversion of a Civil Service job at any level to noncompetitive status.
Next, the agency will either refer the applicant it wants to hire to MOPD
for processing or seek assistance from MOPD in finding an appropriate
applicant.  Potential employees must be certified by VESID or CBVH as
having a disability and as being able to perform the duties of the job in
question.  Conversion of a position to noncompetitive status under
Section 55-a does not change the head count or budgetary status of the
position.  The position continues under Sec. 55-a and MOPD must be notified
when the employee is leaving.

     There may be valid physical requirements for certain positions.  For
example, where a job regularly entails lifting 30 pound boxes, an
applicant's physical condition, as it affects his or her ability to do such
work, is relevant.  Statutes and regulations do not prohibit conditioning
an offer of employment on the results of a medical exam conducted prior to
an employee's commencement of work, as long as certain standards are met.
Medical examinations may be used only if they are designed to determine the
applicant's current fitness for the job in question and if all applicants
for the position, whether or not they have a disability, are required to
take the examination.[53] To ensure people are not screened out based on
assumptions or generalizations about certain medical conditions, any
medical examination should be at the end of the hiring process.  Under
appropriate circumstances (such as when a person is applying to be a police
officer) applicants who have met other criteria for a position should be
told that they will be hired on the condition that they meet job-related
medical standards.  MOPD may be able to provide technical guidance in this
area.

     Employees should be told that, while information regarding medical
conditions will be maintained on separate forms and treated
confidentially,[54]

     * immediate supervisors may be informed of restrictions 
       on the duties of an individual with disabilities [55] 
       and of necessary accommodations;

     * first aid and safety personnel may be informed, where 
       appropriate, when an employee's medical history 
       indicates that medical emergencies may arise (medical 
       personnel and supervisors should be trained to treat 
       medical information in a confidential manner);[56] and

     * government officials investigating compliance with 
       the law will be provided relevant information upon 
       request.[57]

     Breaches of confidentiality may result in violations of State or City
Human Rights laws if the information disclosed as a result of the breach
leads to any adverse employment action.[58] All personnel receiving such
information should be trained to maintain confidentiality.

     The law has very strict requirements regarding the circumstances under
which disclosure of confidential HIV- related information may occur because
of the discrimination often suffered by persons who are known or suspected
to be HIV positive or who are diagnosed as having AIDS.  Improper
disclosures can result in legal actions alleging intentional infliction of
emotional distress and/or violations of constitutional rights to privacy,
anti-discrimination laws and confidentiality statutes.[59] Health care and
social service providers must also keep AIDS and HIV-related information
obtained in the course of providing services confidential.[60] Personnel
handling benefit forms also might become privy to such confidential
information and should be advised of their obligations to maintain that
confidentiality.  Since the Confidentiality Law specifically defines the
circumstances under which this information may be disclosed, and the steps
to be followed when such information is disclosed, you should contact the
AIDS Discrimination Unit of the New York City Commission on Human Rights
or the New York City Department Of Health for more detailed information on
this law and appropriate release forms.[61]

     Employment decisions should be made on an individual basis with
consideration of specific job duties.  For instance, an oral test for a job
that, with reasonable accommodation, does not require the ability to speak
clearly would discriminate against someone with a speech impairment who may
be qualified to perform the essential duties of the job in question.

Current Impairment vs. Future Risk

     Where an individual is presently able to perform the essential
functions of a job in a reasonable manner, even current disability is
irrelevant to the job and can form no basis for denying an employment
opportunity.[62] It also is unlawful to discriminate against a person
because a current disability may make the person more prone than most to
other serious illness or where the person's employment may have an adverse
effect on disability or life insurance programs, since such conclusions
are highly speculative and irrelevant.[63] Even the fact that the
disability is considered possibly treatable (such as extreme obesity) makes
no difference.[64]

     Employment opportunities may not be denied based on speculation and
mere possibilities, especially when such determination is premised solely on
the fact of a person's inclusion in a class of persons with a particular
disability rather than upon an individualized assessment of the specif-
ic individual.[65] However, some courts have held that employment
opportunities may be denied in the limited situation where there is
specific medical evidence, based on a particular individual's medical
history and present condition, that the individual, even with reasonable
accommodation, would be unable to perform the essential functions of the
job in question in a reasonable manner without substantial risk of imminent
serious injury.[66] A commonly cited example is that of a particular person,
given a particular job, when the employer could prove that the individual
would have a 90% chance of suffering a heart attack within one month.[67]

     Again, employment decisions must be made on an evaluation of an
individual's condition, not on generalizations or assumptions about a
disability, as well as on an assessment of what is required to perform the
essential functions of the job in question.[68]
                   

Self Identification

     Recipients of Federal financial assistance taking remedial action and
employers taking affirmative action may invite applicants to indicate
their disabilities [69], provided that the recipient makes clear that:

     * the requested information is intended for use solely 
       in connection with the remedial action obligations or 
       its voluntary or affirmative action efforts;

     * the information is voluntarily provided;
     * the information will be kept confidential;
          
     * refusal to provide information will not subject the 
       applicant or employee to any adverse treatment; and

     * the information will be used only in accordance with 
       Secs. 503 and 504 and applicable regulations.[70]   

     The restrictions on pre-employment inquiries discussed earlier also
must be followed.  New York State and City Civil Service Departments may
make inquiries as to disabilities for study purposes to ensure equal
employment opportunities.[71]


Benefits

     Discrimination on the basis of disability in leaves of absence, sick
leave, or any other leave and in fringe benefits available by virtue of
employment is prohibited.  This would include the opportunity to
participate in afterhours, off-premises social or recreational
activities arranged by or with the approval of an employer, such as a
holiday party or picnic.[72] Potential insurance or benefits costs may not
be considered in employment decisions.[73] The assumption or the fact that
an individual with a certain disability will use health insurance more than
the average employee can not be used as a basis for making an employment
decision.  It also would be impermissible to deny a promotion on the
basis of a disability which causes extensive use of allotted sick leave, so
long as the absences do not significantly inhibit the employee's ability to
do the job.  It is permissible, however, to require that all employees
submit documentation when using sick leave.  If an employer provides for a
specified number of sick leave days, it may be presumed that use of those
days is reasonable.  However, abuses such as failure to give notice or
provide documentation (when such things are required of all similarly
situated employees) might be viewed as unreasonable.  Taking more than the
allotted number of sick days should not be presumed to be unreasonable,
depending on the circumstances.  When a specific amount of sick leave is
not established by employer policies (or union contracts), that flexibility
may not be used in a discriminatory fashion against people with
disabilities; reasonable accommodation requirements should be considered
in such cases.  When absenteeism reaches a level which shows an inability to
do the job, removing the person from the job might be neither discriminatory
nor unlawful; the person may no longer be protected as "otherwise
qualified".

 Evaluations and Discipline

     An employee who has a disability is expected to perform job duties in a
"reasonable" manner with the assistance of any reasonable accommodations
which may be necessary.[74] This does not mean that an employee with a
disability is immune from discipline.  It does mean that you must examine
whether poor performance, attendance or attitude is due to a disability and,
if so, try to make reasonable accommodations to the disability to enable the
employee to meet reasonable standards.  For example, reassigning certain
duties among employees may be an appropriate solution.


Examples:

     * If a clerk/typist with a psychological disorder who 
       sometimes is asked to help answer phones does not 
       always deal appropriately with the public, determine 
       if another employee can help with the phones.  (The 
       shift of a nonessential job task is a reasonable 
       accommodation.)

     * If an employee has to do physical therapy or have 
       kidney dialysis in the mornings and is often an hour 
       late, but is able to work past the usual ending time, 
       consider whether flextime will resolve the situation.  
       (Provision of flextime is a reasonable accommoda-
       tion.)

     If no accommodation which is reasonable can enable a person to do the
job, the personnel action taken should not be viewed as disciplinary, but
rather as the result of an inability to accommodate the employee within the
requirements of the law, without undue hardship on the employer.  The
person with the disability should not be blamed for having it, even if it is
considered that the disability is treatable; the employer nonetheless is
entitled to be able to get the job done.

     Generally, an employer is not required to create an alternate position
for an employee who cannot perform his or her job.  However, an employer
may not refuse to transfer an employee with a disability to another position
for which he or she would be qualified if existing personnel policies and
practices provide for such transfers or reassignments for employees
generally.[75]

     If the problem is not related to the employee's disability, it should
be handled as any other disciplinary matter,[76] although care should be
taken to ensure that the employee has a full and fair opportunity to
understand what is taking place at all stages.  For example, an employee
who has a hearing impairment must be provided an interpreter for any
informal or formal proceedings.  Similarly, an employee with a visual
impairment (or one with dyslexia) in such a setting must be read written
material which is being presented so that he or she can comprehend it.


  
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