Decatur County Community Schools
Administrative Guidelines
 

4123A - SECTION 504/ADA - PROHIBITION AGAINST DISABILITY DISCRIMINATION IN EMPLOYMENT

The Board prohibits discrimination against any employee or applicant based on his/her disability. As such, the Board will not engage in employment practices or adopt policies that discriminate on the basis of disability against qualified individuals with disabilities in every aspect of employment. Specifically, the Board does not discriminate on the basis of disability against a qualified individual in regard to:

 

A.

recruitment, advertising, and job application procedures;

   
 

B.

hiring, upgrading, promotion, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

   
 

C.

rates of pay or any other form of compensation or benefits;

   
 

D.

job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

   
 

E.

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

   
 

F.

fringe benefits available by virtue of employment, whether or not administered by the Board;

   
 

G.

selection and financial support for training, including: apprenticeships, support staff meetings, conferences and other related activities, and selection for leaves of absence to pursue training;

   
 

H.

activities sponsored by the Board, including social and recreational programs; and

   
 

I.

any other term, condition, or privilege of employment.

The Board will provide reasonable accommodation to a qualified applicant and employee who has an actual disability or who has a record of a disability, unless the accommodation would impose an undue hardship on the operation of the Board’s program and/or activities or create a direct threat. A direct threat is a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by reasonable accommodation. A reasonable accommodation is not required for an individual who is regarded as having a disability but does not have a disability.

An individual with a disability is anyone who:

 

A.

has a physical or mental impairment that substantially limits one or more major life activities ("actual disability") when mitigating measures or reasonable accommodations are not in place;

   
 

B.

has a record of having a physical or mental impairment that substantially limits one or more major life activities; or

   
 

C.

is regarded as having a physical or mental impairment that substantially limits one or more major life activities (i.e., has a physical or mental impairment that does not substantially limit major life activities but is treated by the Board as constituting such a limitation, or has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment, or has none of the physical or mental impairments recognized by Section 504 but is treated as having such an impairment).

Major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, seeing, hearing, eating sleeping, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working.

Major life activities also include the operation of a major bodily function, including, but not limited to, functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

Physical or mental impairment means:

 

A.

any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

   
 

1.

neurological

   
 

2.

musculoskeletal

   
 

3.

special sense organs

   
 

4.

respiratory, including speech organs

   
 

5.

cardiovascular

   
 

6.

reproductive

   
 

7.

digestive

   
 

8.

genitourinary

   
 

9.

hemic and lymphatic

   
 

10.

skin

   
 

11.

immune

   
 

12.

circulatory

   
 

13.

endocrine

   
 

B.

any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities

While the determination of whether an impairment substantially limits a major life activity is an individualized one that is case specific, given the inherent nature of the following impairments, as a factual matter, they will virtually always be found to impose a substantial limitation, at a minimum, on the major life activity indicated: deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limits musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune functions; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limits brain function.

Physical or mental impairments that are episodic in nature or in remission may constitute a disability for the purposes of Section 504/ADA if the impairment would substantially limit a major life activity when active, such as asthma, allergies, or cancer.

The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment or appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment or supplies, use of assistive technology, reasonable accommodations or "auxiliary aids or services", learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, or physical therapy.

Individual with a disability does not include the following (i.e., Section 504 specifically excludes):

 

A.

individuals who are currently engaging in the illegal use of drugs, when the Board acts on the basis of current use or impairment on the job rather than past use;

     
 

B.

with respect to employment, any individual who is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol abuse, would constitute a direct threat to property or the safety of others

   
 

C.

with respect to employment, an individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job

   
 

D.

an individual on the basis of homosexuality or bisexuality

   
 

E.

an individual on the basis of:

   
 

1.

transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairment, or other sexual behavior disorders

   
 

2.

compulsive gambling, kleptomania, or pyromania, or

   
 

3.

psychoactive substance use disorders resulting from current illegal use of drugs

Individual with a disability includes an individual who:

 

A.

has successfully completed a supervised drug rehabilitation program and is no longer engaging in the use of illegal or unprescribed prescription drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

   
 

B.

is participating in a supervised rehabilitation program and is no longer engaging in such use; or

   
 

C.

is erroneously regarded as engaging in the illegal use of drugs, but is not engaging in such use.

Public Notice

Recruitment materials, job announcements and all other materials/publications published by the Board must contain the following statement that the Board does not discriminate against disabled persons in employment or the provision of services. This requirement may be met by including an insert in existing publications or revising and reprinting publications.

 

Equal Employment Opportunity Statement

 
     
 

The Decatur County Community Schools Board does not discriminate on the basis of race, color, national origin or ancestry, sex, religion, age, disability, or genetic information in employment or the provision of services.

 

The Board will also include a notice of reasonable accommodation requirements on Board employment application forms and post notices that employee reasonable accommodation Request Forms may be obtained from the Board’s Section 504 Compliance Officer (who also serves as its ADA Coordinator).

Decision-Making Process for Determining/Identify Reasonable Accommodations and Undue Hardship

In determining the appropriate accommodation in the employment situation, the Board will take into account two (2) factors:

 

A.

the specific abilities and functional limitations of the particular applicant or employee with a disability; and

   
 

B.

the qualification standards and essential functions of the particular job.

If an applicant or employee is not able to perform marginal or non-essential functions of a position, those functions shall be eliminated or modified and shall not serve as a barrier or impediment to employment, continued employment, or promotion. Many times a reasonable accommodation will be obvious and made without difficulty and at little or no cost. The Board Section 504 Compliance Officer/ADA Coordinator and other supervisory employees will engage the individual with the disability in an interactive dialogue as to any possible suggestions s/he may have for changes or adjustments that will serve as an effective reasonable accommodation. The Board recognizes that employees with disabilities can be useful sources of the information on what type of accommodation they need, where to obtain information on appropriate accommodations, and where to purchase accommodations.

If, however, the identification of a reasonable accommodation proves difficult, the Board will utilize an informal, interactive process whereby it and the individual will work together to identify the appropriate accommodation. The interactive process may include any of the following steps, as may be appropriate:

 

A.

Examination of the particular job involved and determination of its purpose and essential functions. The Board will conduct an individual assessment of the particular job at issue in order to analyze the actual job duties ("essential functions") and determine the true purpose or object of the job.

   
 

B.

The Board will then consult with the individual with a disability to find out his/her specific physical or mental abilities and limitations as they relate to the essential job functions. This will help the parties to identify the barriers to job performance and assess how these barriers could be overcome with an accommodation.

   
 

C.

In consultation with the individual, the Board will identify potential accommodations and assess how effective each would be in enabling the individual to perform essential job functions.

   
 

D.

If the parties are still not able to identify an appropriate accommodation, the Board will seek technical assistance.

   
 

E.

If there are several effective accommodations, the Board will select the accommodation that best serves the needs of the individual and the Board. While the Board will give the individual with a disability's preference first consideration, the Board may choose among effective accommodations and select the accommodation that is less expensive or easier to provide. The Board may consider the cost, efficiency and availability of the alternative accommodations in selecting an effective accommodation. The Board does not have the obligation to provide the "best" accommodation possible, so long as it provides an accommodation that is sufficient to meet the job-related needs of the individual being accommodated.

The Board will not implement an accommodation without first checking with the employee since the employee may not need or want an accommodation, or the unrequested accommodation may not meet the employee's functional limitation. The Board will respect an individual with a disability's right not to accept an accommodation if s/he has not requested it and does not feel one is necessary. However, if this results in the individual failing to perform essential functions of his/her position, s/he may be considered unqualified to perform the essential functions of the position and may either be refused employment or discharged.

The Board may decline to provide desired accommodations if it determines such accommodations will result in an undue hardship or a direct threat. An undue hardship entails a significant difficulty or expense in, or resulting from, the provision of the accommodation. Such hardship is not limited to financial difficulty but rather encompasses any accommodation that would be unduly costly, extensive, substantial or disruptive, or that would fundamentally alter the nature or operation of the program. If the cost of an accommodation would impose an undue hardship, the Board will give the individual with the disability the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation. Further, the Board will not consider employee morale or the attitudes of others when determining undue hardship.

Decisions not to provide a requested accommodation will be in writing and accompanied by an explanation of the decision not to act.

Reasonable accommodations may include:

 

A.

Making facilities used by employees readily accessible to and usable by individuals with disabilities.

   
 

B.

Job restructuring, part-time or modified work schedule, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.

Factors to be considered when determining whether an accommodation would impose an undue hardship on the operation of the Board's program or activity include:

 

A.

the overall size of the Board's program or activity with respect to number of employees, number and type of facilities, and size of budget;

     
 

B.

the type of the Board's operation, including the composition and structure of the Board's workforce; and

   
 

C.

the nature and cost of the accommodation needed.

Employment Criteria

The Board will not use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test or other selection criteria, as used by the Board, is job-related for the position in question and consistent with business necessity.

The Board will select and administer tests concerning employment so that when administered to an applicant or employee who has a disability that impairs sensory, manual or communications skills, the test results accurately reflect the applicant's or employee's job skills, aptitude, or whatever other factor the test measures, rather than reflecting the applicant's or employee's impaired sensory, manual, or speaking skills except where those skills are the factors that the test measures.

Pre-employment Inquiries

Except as authorized by law, the Board will not conduct a pre-employment medical examination or make pre-employment inquiry of an applicant as to whether the applicant is an individual with a disability or as to the nature or severity of a disability. The Board will, however, make pre-employment inquiry into an applicant's ability to perform the position’s essential functions - this includes requesting the applicant to describe or demonstrate how s/he would perform the essential functions.

The Board may give a physical agility test at any point in the application or employment process if the test(s) measure ability to perform one or more essential functions of the position with reasonable accommodation. When the Board decides to give such a test it must give the test to all similarly situated applicants or employees regardless of disability.

Some examples of alternative test formats and reasonable accommodations are:

 

A.

allowing people with certain learning or dexterity disabilities to take extra time on a test;

   
 

B.

assuring the test site is accessible to a person with a mobility impairment;

   
 

C.

allowing a person with a mental disability who cannot perform well with distractions to take a test in a separate room, if a group test setting is not relevant to the performance of an essential function of the position; and

   
 

D.

providing Braille, large print, a reader or a computer for people with vision impairments.

If the Board conditions an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty, the Board will:

 

A.

subject all entering employees to such an examination regardless of disability, and

   
 

B.

the results of the examination will be used only as authorized by law.

The successful candidate who is required to submit to a medical examination, as well as the medical provider that is designated by the Board to conduct the examination, will be directed not to collect or provide any genetic information, including the candidate's medical history, in the report of the medical examination.

Information obtained as to the medical condition of the applicant, including any inadvertently provided genetic information, will be collected and maintained on separate forms that shall be filed separately from other personnel file information and accorded confidentiality as medical records, except that:

 

A.

supervisors and managers may be informed regarding restrictions on the work or duties of individuals with disabilities and regarding necessary accommodations;

   
 

B.

first aid and safety personnel may be informed where appropriate, if the condition might require emergency treatment; and

   
 

C.

government officials investigating compliance with the ADA as amended, Section 504, the Genetic Information Nondiscrimination Act ("GINA"), or similar Indiana laws or local ordinances shall be provided relevant information upon request.

Interviews

All of the topics labeled off-limits with respect to job applications are likewise prohibited as subjects of inquiry during job interviews. The Board’s agents, however, may ask questions that relate to an applicant's ability to perform job-related functions so long as it does not phrase the questions in terms of disability. The interviewer may ask about an applicant's ability to perform both essential and marginal job functions. In addition, the interviewer may describe or demonstrate job function(s) and inquire whether or not the applicant can perform that function(s) with or without reasonable accommodation. Along the same lines, the interviewer may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, s/he will perform the job-related functions. Any questions concerning the need for reasonable accommodation should always be linked with performance on a specific job function. The interviewer should never ask an open-ended question such as "Will you need a reasonable accommodation?"

Interviews are to focus their inquiry on how applicants will perform the essential functions, rather than on eliciting information about the applicant's physical or mental condition.

According to the Federal Equal Employment Opportunity Commission ("EEOC"), the following are examples of questions that cannot be asked on a job application or during an interview:

 

A.

Have you ever had or been treated for any of the following conditions or diseases?

   
 

B.

Please list any conditions or diseases for which you have been treated in the past three (3) years.

   
 

C.

Have you ever been hospitalized? If so, for what condition?

   
 

D.

Have you ever been treated by a psychiatrist or psychologist? Is so, for what condition?

   
 

E.

Have you ever been treated for any mental condition?

   
 

F.

Is there any health-related reason you may not be able to perform the job for which you are applying?

   
 

G.

Have you had a major illness in the last five (5) years?

   
 

H.

How many days were you absent from work because of illness last year (unless consistent reliable attendance on scheduled work days is a qualification standard for the position)?

   
 

I.

Do you have any physical defects that preclude you from performing certain kinds of work? If yes, describe such defects and specific work limitations?

   
 

J.

Do you have any disabilities or impairments that may affect your performance in the position for which you are applying?

   
 

K.

Are you taking prescribed drugs?

     
 

L.

Have you ever been treated for drug addiction or alcoholism?

   
 

M.

Have you ever filed for workers' compensation insurance?

Interviewers should not ask an applicant’s employment or personal reference questions about an applicant that they could not ask the applicant himself/herself (i.e. previous employers cannot be asked about a former employee's disabilities, illness or workers' compensation history/claims).

The following are pre-employment questions that can be asked:

 

A.

Can you meet the requirements of our attendance policy which requires __________________?

   
 

B.

The essential functions of the position of ___________ (job title) are _________________ (list). Can you perform these essential functions of this position with or without an accommodation?

   
 

C.

Describe or demonstrate how you would perform this function, with or without an accommodation? (Such a question can be asked of applicants who have an observable impairment (e.g. confined to a wheelchair) that might prevent them from performing a job function. If the disability would not interfere with a job function, however, the person could only be asked to demonstrate job performance if all other candidates must do so.)

   
 

If an applicant indicates s/he has performed a particular function with an accommodation, the interviewer may follow-up to inquire about it.

In circumstances in which a committee of other employees, parents, students, or community members participate in interviewing an applicant for employment, transfer, or promotion, the Board’s senior administrator participating in the interview shall advise the member of the committee of the nature of impermissible and permitted questions that can be asked of an applicant.

© Neola 2012