ADA and records management, The

A new minority is etching into the American work force. Estimated at 43 million people, this minority is grouped under the label "disabled." The most noticeable use wheelchairs, walkers, crutches, braces, braille, or sign language. Of these, some 70 percent are unemployed, the bulk of that number victims of discrimination.

What the Civil Rights Act of 1964 did for racial and ethnic minorities, the Americans with Disabilities Act of 1990 does for disabled people. The new law, commonly called the ADA, is not about "helping the handicapped," a phrase which is anathema to most people with disabilities. It is instead a societal proclamation of emancipation and, like its predecessor civil rights laws, expected to help a shunted minority integrate into every aspect of American life.

That bodes architectural changes, technological advancements, and attitudinal adjustments in file rooms and records centers.

The ADA prohibits discrimination on the basis of disability in private sector employment, government services, public accommodations, telecommunications, and transportation. Title I covers employment, and Equal Employment Opportunity Commission regulations went into effect July 26, 1992, for all firms with 25 or more employees. Coverage expands next July 26 to firms with 15 or more employees.

While the ADA will impact every industry--from airline pilots to ranchers, from ambulance drivers to telephone linemen-perhaps no occupations will be affected so much as those associated with records management. The reason is twofold:

--Records management does not have the safety factors prevalent in some occupations that tend to screen out certain disabilities;

--Assistive technology makes many file room and records center jobs readily accessible to anyone with just about any disability.

As for the latter, the ADA might indirectly usher in greater use of technology that will improve a firm's filing efficiency.

DISABLED DEFINED

An individual with a disability is, according to the ADA, "a person who has a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment."

The first part of the definition includes not only the obvious disabilities--orthopedic, visual, speech and hearing impairments, anatomical loss, palsies, epilepsy, and mental retardation--but also mental and emotional illnesses, learning disabilities, dementia, and chronic diseases such as cancer, diabetes, heart disease, and AIDS.

"Substantially limits...the major life activities" is the phrase on which the definition turns. "Major life activities" include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Baldness and other such physical characteristics do not substantially limit one of those activities, nor does being overweight, unless the condition is wrought by a physiological disorder. Sometimes it's a matter of degree. Poor eyesight, say 20/40, doesn't "substantially limit" the activity of seeing. Severely impaired vision, however, would merit the definition, even if glasses can help a person read at close range.

Aid of a mechanical device does not eliminate the disability, even if it eliminates its effects. Severe hearing loss substantially limits the activity of hearing though a hearing aid cuts the loss. A person with diabetes functions normally with insulin, but left untreated the disease would substantially limit a major life activity.

Employers need to remember that one of the "major life activities" covered in the law is working; a person can have an impairment that might not otherwise be a hindrance but substantially limits his or her ability to work. The EEOC's Technical Assistance Manual for Title I regulations provides the example of a computer programmer who develops a vision impairment that does not limit her ability to see, but because of poor contrast she cannot distinguish print on computer screens. She would be considered disabled under the ADA, and the employer would have to accommodate her impairment.

The impairment must be a physiological or mental disorder. The ADA does not cover people widely regarded as having "social disabilities." If a person cannot read due to dyslexia, he or she is covered because dyslexia is a learning disability, but a person who cannot read because he or she dropped out of school is not covered.

The second prong of the definition, "a record of such an impairment," covers people with a history of one of the covered conditions or who have been misclassified. A person cured of cancer can't be denied employment because the employer fears the cancer will return. Persons who spent time in a mental institution can't have that history held against them.

The last prong, "regarded as having such an impairment," is intended to protect individuals from negative attitudes and ignorance. For example, rumors run through an office that a file clerk has AIDS and management dismisses the employee for that reason. If the clerk did have the H virus, management illegally terminated a person with a disability. If the rumors were false, management illegally terminated a person they regarded as having a disability.

The law also protects people associated with a disabled individual. For example, a company could not deny employment to a person with a severely disabled spouse for fear the spouse's condition will take away from the employee's time or attention.

Alcoholism is defined as a disability, and so is drug addiction. The ADA does not protect people currently using illegal drugs, but it does protect those in rehabilitation programs who are not currently using illegal drugs, those who have been rehabilitated, and those erroneously labeled as drug users.

The ADA excludes transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania and psychotic disorders resulting from current use of illegal drugs.

NO QUOTAS

The ADA is about not discriminating against persons with disabilities. It's not affirmative action, it's not quotas, it's not telling employers to hire unqualified persons. The ADA was enacted to protect persons with disabilities who are qualified, but who haven't gotten employment because of employers' attitudes.

The ADA in fact insists that people with disabilities be qualified for the job in question before the law protects them. In other words, the person with a disability must have whatever education, experience, skills, training, and other qualities are required to perform the job. Further, employers get to establish those qualifications.

In doing so, the employer needs to establish the qualifications in written job descriptions and make sure the requisites apply only to the job's "essential functions," another key phrase in the law. The Technical Assistance Manual uses an example of a file clerk position description that includes answering telephones: "If the basic functions of the job are to file and retrieve written materials, and telephones actually or usually are handled by other employees, a person whose hearing impairment prevents use of a telephone and who is qualified to do the basic file clerk functions should not be considered unqualified for this position."

The EEOC also makes a case for computer operators, whereby the essential function is the ability to access, input, and retrieve information from the computer. "It is not 'essential' that a person enter information manually or visually read the information on the computer screen," states the EEOC manual. "Adaptive devices or computer software can enable a person without arms or a person with impaired vision to perform the essential functions of the job."

Job descriptions must not include qualifications that tend to discriminate against people with disabilities, either. If the job includes moving heavy file boxes, a job description should not require that applicants be able to lift and carry the file boxes. That tends to screen out people with chronic back pain or who use wheelchairs. The job's essential function is not to carry the boxes but move them, a task which can be accomplished with the help of lifts and handcarts.

REASONABLE ACCOMMODATIONS

Such lifts and handcarts, and the adaptive devices in the computer operator example, are types of "reasonable accommodation," the cornerstone clause of ADA implementation. Job applicants must be judged on whether they can perform essential functions 'with or without reasonable accommodation," according to the law.

The EEOC defines "reasonable accommodation" as "any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity." Not only must the employer consider reasonable accommodation in determining whether an individual with a disability is qualified for the job, but the employer must provide the reasonable accommodation. The need for such accommodation cannot be used as a reason to deny employment, either.

Reasonable accommodation could include assistive technology, barrier-free access to the work space and associated areas (such as bathrooms and break rooms), adjustment of work schedules or tasks, and reassignment to comparable jobs. It could be as cheap and easy as removing center desk drawers so that a person in a wheelchair can roll under the desk. It could be as high-tech as providing laser-guided computer controls. What constitutes "reasonable accommodation" depends on the disability and the skills of the person in question.

Employers are not required to provide personal aids, such as hearing aids, glasses, or wheelchairs. Nor must they provide an accommodation if it would impose a "undue hardship" on the business. The undue hardship clause allows employers to weigh the accommodation's cost and extensiveness against the company's financial resources, geographic location, and nature of the business.

Aside from the cost of architectural changes and assistive technology, the undue hardship factor applies to all aspects of the company's work force. If restructuring jobs to accommodate a disabled worker creates a heavier workload for other employees, that could be considered an undue hardship. If raising the thermostat for an employee with a disability makes the work site too hot for other employees and equipment, the company could claim undue hardship and seek an alternative accommodation, such as a space heater.

Fellow employees' attitudes and morale are not a factor in the "undue hardship" test. If co-workers refuse to work near someone infected with the HIV virus, or they feel uncomfortable around a quadriplegic or someone with facial scars, it would not be considered an undue hardship under the law. Such arguments didn't hold up under the Civil Rights Act, they won't under the ADA.

DON'T ASSUME

"Undue hardship" along with the "reasonable accommodation" phraseology have prompted criticism that the ADA is too vague and will require too much litigation. Federal officials acknowledge that much of the law will be further defined in court, but Congress intentionally used such phrases to be applied on a case-by-case basis.

The ADA's underlying theme is that people with disabilities are not stamped from the same mold. There are varying degrees of seeing and hearing impairments, varying degrees of paraplegia and quadriplegia, varying degrees of cerebral palsy and muscular dystrophy. People with the same impairments use different methods of communication and mobility. Less than half of all blind people read braille. This country's deaf community uses two different sign languages. Some paraplegics use walkers and crutches instead of wheelchairs.

Thus, accommodations must be geared toward the individual and his or her skills, not to the impairment.

The EEOC manual offers a checklist for employers to use when determining a reasonable accommodation for a person with a disability:

--Look at the specific job, determine its purpose and essential functions;

--Consult with the employee to find out his or her specific physical and mental abilities and limitations;

--In consultation with the disabled employee, identify potential accommodations and assess how effective each would be toward performing the job's essential functions;

--Select the accommodation that best serves the needs of the individual and the employer.

CREATING ACCESSIBILITY

The ADA does not require that existing private commercial space be accessible, so no general retrofitting is needed. Only in new buildings and renovations will records centers need to meet the ADA Accessibility Guidelines or local barrier-free codes. However, if a person with a disability is hired, barrier-free access comes under the guise of reasonable accommodation.

Some general modifications include:

--Installing a ramp to the building and to any split-level areas in the work site;

--Removing raised thresholds;

--Making restrooms accessible, including toilet stalls, sinks, and soap and towel dispensers;

--Rearranging office furniture and equipment to allow adequate passage (wheelchairs should get 36 inches of pathway, 30 inches minimum),

--Replacing doorknobs with lever hardware;

--Making drinking fountains accessible, either by lowering them, installing paper cup dispensers, or using operational mechanisms that don't require twisting;

--Providing path of travel to equipment and facilities the employee might use, such as copy machines, meeting and training rooms, break rooms and lunchrooms;

--Removing obstacles that might be potential hazards in the path of people without vision, generally at shoulder and head height;

--Adding visual alarms for employees with hearing impairments;

--Getting sign language interpreters for deaf employees attending training sessions or staff meetings.

Accommodations for specific jobs range from adapting policies and altering schedules--such as allowing additional breaks for a diabetic to administer to his or her condition--to assistive technology.

The latter is a rapidly growing field where high-tech engineering and low-tech ingenuity combine to provide people with any kind of disability the wherewithal to accomplish any kind of task. Assistive technology has its roots in renaissance-era wheelchairs, and Benjamin Franklin could be credited with launching this country's leadership in the field when he invented the "Long Arm," giant tweezers that were the forerunner of today's reacher. He wrote of his creation, which he used to get books on high shelves in his library: "Old men find it inconvenient to mount a ladder or steps...their heads being sometimes subject to giddiness, and their activity, with the steadiness of their joints, being abated by age."

A hint of how rich the field of assistive technology has become comes from the Job Accommodation Network (JAN), a database of information on assistive technology which provides via a toll-free number free information on job accommodations. JAN has information from over 4,000 wholesalers and manufacturers of assistive devices and tens of thousands of previous accommodation examples.

FILING ADAPTIONS

For manual filing, wheelchair users have an easier time with rotating systems that allow them to move file drawers down or up to a level they can reach. Lateral files also allow easier access than vertical files, because wheelchairs themselves restrict proximity, and many people with spinal cord injuries cannot lean far forward. For file centers that have a large number of vertical files and don't want to get rid of them, the material used by a person in a wheelchair should be moved to the bottom three drawers. A person who has trouble bending or stooping, conversely, should have material placed in the upper drawers.

As records management moves further into the computer age, assistive technology will advance apace. Applications already let even high-level quadriplegics run computer software programs as efficiently as anyone with full use of their hands. Most common is the sip-and-pull system whereby a tube in the user's mouth performs the functions of a mouse.

The latest product to advance in the computer market is the eye tracker system. The user wears a headset with a laser signal triangulated to the user's vision so that where he or she looks the beacon points. A sensor attached to the side of the computer screen picks up the beacon and knows where it is pointing on the screen. As the head and eye moves, the sensor tracks it to whatever computer option the user desires, and, by staring at the selection a certain period of time, activates it.

Some proficient users can get up to 20 words per minute with the head-and-track system, which has effectively been used for word processing and computer programming.

Talking systems make information accessible to people with restricted hand movement, as well as to people with impaired vision. A speech synthesizer and software-a screen review program-costs between $200 to $2,000 with most systems priced just under $1,000.

Software packages also are available to enlarge screen displays for partially blind persons, or to change the color and contrast.

Employees with impaired vision who read braille could manage print files with braille labels on drawers and file tabs. Color coding and geometric forms may help file clerks who cannot read sort and store records. People with learning and mental disabilities could use mechanical accommodations, too. The Bank of Horton in Kansas ran into a problem after it hired mentally disabled workers from the Brown County Development Services enclave in Hiawatha, Kansas. Their jobs were to place four-numbered stickers on file folder tabs in the bank's student loan processing center, the largest in the Midwest. The workers simply couldn't align the stickers correctly, and one vision impaired employee couldn't do the job at all.

So, rehabilitation engineers with the Cerebral Palsy Research Foundation in Wichita, Kansas, designed a horizontal platform that holds the folder in place while a vertical pivoting arm affixes the sticker. This simple device allowed the vision impaired worker to do the job, while productivity among his co-workers increased as much as 91 percent.

SIDE EFFECTIVENESS

Rather than causing hardships for business operations or co-workers, many technological accommodations can improve a records center's efficiency and safety. Voice-operated computers, for instance, have gained wide applications outside the arena of assistive technology because anyone can use them and it frees the hands of continuous typing.

The ADA may spur "electronic curb cuts." When cities were first required to put curb cuts in sidewalks, there was a lot of complaining about the trouble, cost, etc. Although designed for persons in wheelchairs to get across streets and onto sidewalks, they are also used by bicyclists, package deliverers, mothers with strollers.

Even though accommodation technology is designed for disabled users, it will probably be used by i many people who are not.

Mobile filing units will play a big part in accessibility. Filing centers can lose almost half their space to pathways, which according to ADA Guidelines, must be a minimum of 30 inches for wheelchair users and people with walkers. Putting units on tracks doubles storage space for files and allows mobility-impaired workers as much maneuverability space as they need.

Attention to reasonable accommodation can also improve safety standards for all employees. This is especially true in the cases of eye strain, repetitive motion syndrome, and back pain. For example, an accommodation for a person with back pain who must carry stacks of files from unit to unit is to provide that person with a push-cart. Using the cart would also help prevent back pain for other workers who carry files. An accommodation for typists who suffer carpal tunnel syndrome is to allow them frequent breaks; that same accommodation also prevents carpal tunnel syndrome.

Another long-range savings available to employers are tax credits for hiring and accommodating workers with disabilities. Furthermore, state vocational-rehabilitation departments will pay part and sometimes all of the accommodation costs when they place one of their clients in jobs.

Then there are the benefits that can't be measured: hiring and keeping loyal workers who are disabled, who by the nature of their condition tend to be proficient problem solvers and resilient, who because of the nature of society tend to stay at their jobs longer. For existing employees who become disabled down the line, the ADA--which covers such situations--prompts businesses to pay those employees to work in some capacity rather than pay them in workman's comp to vegetate at home.

THE LEGAL BILL

The bottom line, however, is not the cost of compliance but the cost of non-compliance. If a complaint leads to a lawsuit and a firm is found in violation of the ADA, whether "caused by intentional acts or by practices that have a discriminatory effect" according to the EEOC, remedies may include hiring, reinstatement, promotion, back pay, front pay, and accommodation. Firms would also be liable to legal costs and punitive damages, the latter ranging from $50,000 for firms with less than 100 employees to $300,000 for firms of 500 or more. In its first couple of court cases, not only has the EEOC won, but juries awarded maximum fines. Furthermore, the Civil Rights Act of 1991 amended the ADA so that wronged individuals can also seek tort and personal damages.

To ensure that bottom line remains in the black, all managers need to do is rid themselves of assumptions concerning disabilities. A proper attitude is the surest means of complying with the law. If employers keep their minds open, slow down if they start reacting, the ADA should not be a problem.

ADA INFORMATION RESOURCES

In implementing the ADA, Congress ordered several federal agencies to provide the public with information and assistance for complying with the new law. Following are some of the important agencies that offer advice and literature to managers of records centers. What advice they do offer is not legally binding.

Equal Employment Opportunity Commission 800-669-3362 (TDD: 800-800-3302). The EEOC oversees the ADA's Title I covering employment and has produced a thorough and easy-reading technical assistance manual for that chapter.

U.S. Department of Justice, 202-514-0301 (TDD: 202-514-0381). The Justice Department oversees the ADA's Title II (government services) and Title III (privately owned public accommodations). Like the EEOC, Justice has produced a technical assistance manual describing those chapters.

The Justice Department and EEOC jointly publish the ADA Handbook, which contains the actual legislation, the regulations, and the ADA Accessibility Guidelines, as well as other resource material. It is available through either agency or by calling 202-783-3238.

The Access Board, 800-872-2253 (voice and TDD). Responsible for the ADAAG, the Access Board can provide copies of the guidelines on removing architectural barriers and offer technical assistance over the phone.

President's Committee on Employment of People with Disabilities 202-376-6200 (TDD: 202-376-6205). The President's Committee is a government watchdog group championing all disabilities. The committee provides advice, referrals and literature for those seeking guidance on the law and job accommodations.

The Job Accommodation Network (JAN) 800-ADA-WORK, in Canada 800-526-2262. A service of the President's Committee located at West Virginia University, JAN is a database of some 4,000 accommodations and case histories with a phone bank of counselors to help employers make accommodations for disabled workers. The service is free. JAN also operates a computer bulletin board, 800-DIAL-JAN.

National Institute on Disability and Rehabilitation Research 800-949-4232 (voice and TDD). This is an umbrella agency for 10 regional Disability and Business Technical Assistance Centers. Calls to the main number automatically route to a regional center for information, referrals, training and technical assistance.

Every state also has a federally funded vocational-rehabilitation department: contact the state or local office for technical expertise and that state's financial incentives and grant programs.

Job Opportunities for the Blind, 800-638-7518. A service of the National Federation of the Blind in Baltimore, MD., JOB is a nationwide free reference service for any question related to work and blindness for employers, employees and job applicants.

National Center on Employment of the Deaf, 716-475-6834 (TDD: 716-475-6205). A service of the National Technical Institute for the Deaf at Rochester, N.Y., Institute of Technology, the center offers training and consultation on worksite communication and accommodations for deaf employees.

National Easter Seal Society, 312-726-6200 (TDD: 312-726-4258). The Easter Seal Society uses local affiliates to provide technical assistance for employers on assistive technology and job site analysis. Also distributes ADA checklist for employers and a guide to job accommodations and assistive technology.

United Cerebral Palsy Associations, Inc., 800-872-5827 (voice and TDD). The association assists with worksite accommodations, environmental controls and assistive technology through local affiliates.

Eric Minton is a freelance writer living in Dayton, Ohio. He has written extensively on the Americans with Disabilities Act for more than two dozen trade journals, including Career Pilot, Rescue, Credit Union News, Dental Economics and American Cattlemen. Formerly located in Charleston, South Carolina, he was a member of the Charleston Mayor's Committee on Employment of People with Disabilities. He has lectured to businesses and organizations on disability rights and etiquette.

Copyright Association of Records Managers Administrators Inc. Jan 1994
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