Background Screening and the Revised EEOC ADA Regulations: What You Need to Know

You may recall the ADA Amendments Act of 2008 (ADAA).  Effective Jan 1, 2009 the ADAAA made a number of significant changes to the definition of “disability.”  In turn, it also required the EEOC to amend its own ADA regulations to reflect those found in the ADAAA.

If you employ 15 or more employees, if you run an employment agency, or if you meet any of the other criteria set out by the EEOC, you will want to know how this affects you.

First, Why ADAAA?

The reason the ADAAA came about was to reinstate a “broad scope of protection” for individuals with disabilities by widening the definition of the term “disability.” Before the ADAAA Congress found that individuals with many types of impairments – including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder – were unable to bring ADA claims because they were found not to meet the ADA’s definition of disability.

Still, Congress felt that individuals with these and other impairments should be covered and thus, the ADAAA came into effect. As a result of narrowing the definition of disability it is believed that the ADAAA and EEOC’s final regulations will pave the road for individuals seeking protection under disability-related laws.

Second, How is Disability Defined?

As published on the EEOC website, he ADAAA and the final regulations define a disability using a three-pronged approach:

1.  a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”), or

2.  a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or

3.  when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).

(For a more detailed definition of each, refer to the EEOC’s Q&A.)

Finally, What Do Employers Need to Know About ADA Regulations?

The most important question facing employers when it comes to the newly-revised EEOC ADA regulations and hiring practices is what does this mean to my business? Do I need to do anything differently?

Our perspective is this: If you’ve been following long-standing EEOC guidance and steering clear of prohibited discriminatory practices that have been in place to protect employees and job-seekers, you will likely come out on the right side of an EEOC complaint.  If, on the other hand, you’ve neglected to consider the importance of equal opportunity now is a good time to brush up your policies and practices.

When you think about it, regardless the definition of disability it is and has long been illegal to base your hiring decisions on stereotypes and assumptions about a person; specifically as it relates to race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.  The specifics of what is legally defined a disability is somewhat beside the point if what you’re trying to do is create equal opportunity for all.  And in the end, you’re much more likely to be called to the mat over the merits of the case than the definition of the word.

So yes, get with your employment attorney and brush up on these new laws.  And yes, examine your hiring practices to be sure they meet the standards.  But most importantly, continue to do the right thing in your employment screening and hiring practices and you’ll reap the rewards of a safer, more productive, and more qualified workforce.

About Michael Gaul

A security industry professional since 1988, Michael has extensive expertise in the fields of human capital risk management, physical security, and background screening process management. Michael leads Proforma’s sales, marketing, and strategic customer relations efforts.
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