BRUCE MAY, Attorney, Stradling, Yocca, Carlson & Rauth

Part of the Americans with Disabilities Act went into effect Sunday, barring employers from discriminating against people with physical, mental or learning disabilities. All businesses with 25 or more employees are required to make “reasonable accommodations” for qualified disabled workers and applicants. Is this another taxing web of regulation or will it make businesses aware of new hiring opportunities? Bruce May, a Newport Beach attorney who represents employers, spoke recently with free-lance writer Ted Johnson.

What are the major differences between this law and the state Fair Employment and Housing Act?

What the ADA does is it avoids the term handicap and instead it uses the term individual with a disability . California law used the term physical handicap . . . . This new definition of the ADA will clearly encompass mental disabilities as well. It will protect, for example, the factory worker who has difficulty reading work instructions because of dyslexia.

(Another difference) will be in the area of pre-employment practices, what you inquire into and your testing procedures, including medical examinations. . . . It used to be permissible to inquire of an applicant, “Do you have any disabilities that would prevent you from safely and efficiently performing this job?” What the ADA says is, you can’t ask if the employee is disabled, but instead you should ask, “Can you perform the essential functions of this job?” (Employers) should say, “Here’s the job description for this position, can you safely and efficiently perform these essential functions?”

The law requires employers to make “reasonable accommodations” for employees with disabilities. What does this mean?

(It) could mean physical changes in the architecture, engineering or layout of the workplace, removing curbs so wheelchairs have access to a plant, lowering tables or designing special chairs or workbenches. It could involve job restructuring, taking the job and removing some of the duties and transferring them to other individuals or to other positions so as to accommodate a disabled individual. It could involve part-time or modified working hours. I’m recalling a case where we had an individual who could not work the graveyard shift. He asked to be excused because he is diabetic and the doctor said working those late hours upsets his diet and his sleeping patterns.

Would you expect more plaintiffs to sue under California’s Fair Employment and Housing Act?

The (state law) is really a much more potent law because it provides for the recovery of what we call tort damages, that is damages for emotional distress, punitive damages, attorneys’ fees, as well as damages for lost wages and benefits.

How much will employers have to spend to comply?

(They) will have to spend some money, as well as some time and effort. The question of how much money is a fluid one. It depends on the circumstances. . . . Judging from past experience (with the state law), the costs of complying will be manageable.

Would you expect many employers toprove that complying with the law willpose an “undue hardship,” making themexempt?

Undue hardship is loosely defined. It calls for courts to look at the nature of the accommodation sought, the cost to the particular employer, or cost at that particular facility, the size of the employer, or his or her financial resources. And you might end up with a very different obligation if you are talking about a mom-and-pop grocery store versus a Fortune 500 computer maker. The latter might find that it has a much more significant or much more costly obligation when it comes to reasonable accommodation (of an employee with a disability).

What type of employer are you most concerned about meeting the requirements?

The concern I have is with the smaller to mid-size employers. Those are the ones that are more likely to be concerned with production, getting the product out the door . . . than they are with complying with all of these laws. They are also the ones who are most likely to be cynical about the web of regulations that employers have. Maybe the bias is to say, “Here’s yet another headache that we have to worry about.”

My concern is they would not be aware of their obligation. They wouldn’t realize how relatively easy it is to comply with the new law. They would be the type that would turn away an individual because he or she had high blood pressure or the person had a stroke or a hip replaced. They more or less admit that they are disqualifying an individual because of that particular condition. What they are left with is a lawsuit and they’re dead in the water.

What if you have a competitive job situation, and you have an applicant with a disability and someone who does not have a disability?

You can’t compare both individuals unless you first assume that you are going to make the reasonable accommodation that is necessary for the disabled applicant. So for example, if you got two applicants for a sales position, and one of them says that due to a spinal condition, he is not able to carry the demonstrator model computer that the company sells. You determine that the individual not have this computer on every sales call. They can demonstrate the computer by other means. Once you assume you are going to have that reasonable accommodation, you can compare. Then, if you are to turn away the disabled applicant, you’ve got to be sure that there is some legitimate documented criteria upon which you’re basing your decision. Obviously it cannot be the disability.

How does the law treat victims of AIDS or those who are HIV positive?

Except in extremely narrow circumstances, such as an individual who is in health care and works in invasive surgical procedures, somebody who is working in the operating room, there are not any jobs that have the risk of transmission of the HIV virus.

On why employers need to revise job applications. . .

“In certain circumstances, having an improper question in our employment application could be just enough to tip the scales against you.”

On the responsibility of an employer. . .

“It’s not just enough to avoid intentional discrimination. We have an affirmative duty to reasonably accommodate a disabled individual.”

On employers who have hired disabled workers. . .

“(The law) is going to open up a new resource for employers. They’ve found the individuals more motivated, more dedicated, more appreciative, and harder working, than other employees.”

On the benefits of the law. . .

“This is a law that is going to open up, it’s going to break down barriers. . . . We now have to think in terms of any physical or mental impairment.”