Discrimination and Affirmative Action

Discrimination and Affirmative Action

Title I of the Americans with Disabilities Act (ADA) enforced by the U.S. Equal Employment Opportunity Commission (EEOC) prohibits private and state and local government employers with 15 or more employees from discriminating against individuals on the basis of disability. Title I of the ADA also generally requires covered employers to make reasonable accommodations -- changes in the workplace or in the way things are usually done that provide individuals with disabilities equal employment opportunities." (U.S. Equal Opportunity Commission, 2008) In order to meet the ADA's definition of disability the individual must have a "physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. This definition of disability may differ from the definition used in other laws. For example, the term "disabled veteran" means an individual who has served on active duty in the armed forces, was honorably discharged, and has a service-connected disability, or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Department of Veterans Affairs or a military department." (U.S. Equal Opportunity Commission, 2008) In addition, it is important to note that under the ADA "an individual with a disability also must be "qualified" for the job the individual has or wants. To be qualified, an individual with a disability must meet the employer's requirements for the job (such as education, training, skills, or licenses) and must be able to perform the job's essential or fundamental duties, with or without reasonable accommodation."( U.S. Equal Opportunity Commission, 2008) While an employer may give preference in hiring to a veteran with a service-connected disability over other job applicants, the ADA strictly prohibits "discrimination "against a qualified individual with a disability because of the disability of such individual." However, the law neither prohibits nor requires affirmative action on behalf of individuals with disabilities. An employer, therefore, may -- but is not required to -- hire a qualified individual with a disability (including a veteran with a service-connected disability) over a qualified applicant without a disability." (U.S. Equal Opportunity Commission., 2008) Federal agencies may use what is called "special hiring authorities" if they wish to hire those with disabilities and in some cases must provide preference to those who are veterans including disabled veterans when hiring or promoting.

It is reported that affirmative action programs include: (1) the multi-year Affirmative Action Program Plan for minorities and women, (2) the Federal Equal Employment Opportunity Recruitment Program (FEORP), (3) Disabled Veterans Affirmative Action Plan, (4) Affirmative Action Plan for Persons with Disabilities, and (5) any other initiative or program which is aimed at providing equal opportunity in employment for the purpose of achieving a representative and diverse workforce. (United States Department of Justice, 2003)

The U.S. Department of Justice additionally reports that the FEORP or Federal Equal Employment Opportunity Program complements the action items that are included in the affirmative action plans pursuant to "EEOC Management Directives and the Disabled Veterans Affirmative Action Plan." (United States Department of Justice, 2003) The Disabled Veterans Affirmative Action Program (DVAAP) Plan targets strategies for the "recruitment, hiring, placement, and retention of disabled veterans, will be developed in accordance with OPM and Department instructions. This plan is an integral part of the Selective Placement Program for Persons with Disabilities. All bureau-wide DVAAP plans are due to the Department's EEO Staff a month in advance of OPM's due date." (United States Department of Justice, 2003)

In all of the Affirmative Action programs, women and children as well as minorities are given the same treatment as are disabled individuals and disabled veterans. In other words, the Affirmative Action laws treat women and children as well as minorities as being at the same disadvantage and likely to receive discrimination as if they were indeed disabled. Therefore, women, children and minorities are assigned a type of 'handicap' based on their gender, age or racial or ethnic origin. Therefore, women, children and minorities are afforded the same protection in regards to hiring and promotion practices as are those with physical and/or mental disabilities.