42 U.S.C. § 12112 — Discrimination

Page 8242 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12112 1991—Par. (4). Pub. L. 102–166 inserted at end ‘‘With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–166 inapplicable to con- duct occurring before Nov. 21, 1991, see section 109(c) of Pub. L. 102–166, set out as a note under section 2000e of this title. EFFECTIVE DATE Pub. L. 101–336, title I, § 108, July 26, 1990, 104 Stat. 337, provided that: ‘‘This title [enacting this sub- chapter] shall become effective 24 months after the date of enactment [July 26, 1990].’’ § 12112. Discrimination (a) General rule No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, em- ployee compensation, job training, and other terms, conditions, and privileges of employ- ment. (b) Construction As used in subsection (a), the term ‘‘discrimi- nate against a qualified individual on the basis of disability’’ includes— (1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such ap- plicant or employee because of the disability of such applicant or employee; (2) participating in a contractual or other arrangement or relationship that has the ef- fect of subjecting a covered entity’s qualified applicant or employee with a disability to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe bene- fits to an employee of the covered entity, or an organization providing training and ap- prenticeship programs); (3) utilizing standards, criteria, or methods of administration— (A) that have the effect of discrimination on the basis of disability; or (B) that perpetuate the discrimination of others who are subject to common adminis- trative control; (4) excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; (5)(A) not making reasonable accommoda- tions to the known physical or mental limita- tions of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the busi- ness of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered en- tity to make reasonable accommodation to the physical or mental impairments of the em- ployee or applicant; (6) using qualification standards, employ- ment 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 unless the standard, test or other selection criteria, as used by the covered enti- ty, is shown to be job-related for the position in question and is consistent with business ne- cessity; and (7) failing to select and administer tests con- cerning employment in the most effective manner to ensure that, when such test is ad- ministered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflect- ing the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure). (c) Covered entities in foreign countries (1) In general It shall not be unlawful under this section for a covered entity to take any action that constitutes discrimination under this section with respect to an employee in a workplace in a foreign country if compliance with this sec- tion would cause such covered entity to vio- late the law of the foreign country in which such workplace is located. (2) Control of corporation (A) Presumption If an employer controls a corporation whose place of incorporation is a foreign country, any practice that constitutes dis- crimination under this section and is en- gaged in by such corporation shall be pre- sumed to be engaged in by such employer. (B) Exception This section shall not apply with respect to the foreign operations of an employer that is a foreign person not controlled by an American employer. (C) Determination For purposes of this paragraph, the deter- mination of whether an employer controls a corporation shall be based on— (i) the interrelation of operations; (ii) the common management; (iii) the centralized control of labor rela- tions; and (iv) the common ownership or financial control, of the employer and the corporation. Page 8243 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12113 (d) Medical examinations and inquiries (1) In general The prohibition against discrimination as referred to in subsection (a) shall include med- ical examinations and inquiries. (2) Preemployment (A) Prohibited examination or inquiry Except as provided in paragraph (3), a cov- ered entity shall not conduct a medical ex- amination or make inquiries of a job appli- cant as to whether such applicant is an indi- vidual with a disability or as to the nature or severity of such disability. (B) Acceptable inquiry A covered entity may make preemploy- ment inquiries into the ability of an appli- cant to perform job-related functions. (3) Employment entrance examination A covered entity may require a medical ex- amination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examina- tion, if— (A) all entering employees are subjected to such an examination regardless of disability; (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, ex- cept that— (i) supervisors and managers may be in- formed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the dis- ability might require emergency treat- ment; and (iii) government officials investigating compliance with this chapter shall be pro- vided relevant information on request; and (C) the results of such examination are used only in accordance with this sub- chapter. (4) Examination and inquiry (A) Prohibited examinations and inquiries A covered entity shall not require a med- ical examination and shall not make inquir- ies of an employee as to whether such em- ployee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with busi- ness necessity. (B) Acceptable examinations and inquiries A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an em- ployee health program available to employ- ees at that work site. A covered entity may make inquiries into the ability of an em- ployee to perform job-related functions. (C) Requirement Information obtained under subparagraph (B) regarding the medical condition or his- tory of any employee are subject to the re- quirements of subparagraphs (B) and (C) of paragraph (3). (Pub. L. 101–336, title I, § 102, July 26, 1990, 104 Stat. 331; Pub. L. 102–166, title I, § 109(b)(2), Nov. 21, 1991, 105 Stat. 1077; Pub. L. 110–325, § 5(a), Sept. 25, 2008, 122 Stat. 3557.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (d)(3)(B)(iii), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified prin- cipally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. CONSTITUTIONALITY For the constitutionality of certain provisions of this subchapter, see the Table of Laws Held Unconstitu- tional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitu- tion.congress.gov. AMENDMENTS 2008—Subsec. (a). Pub. L. 110–325, § 5(a)(1), substituted ‘‘on the basis of disability’’ for ‘‘with a disability be- cause of the disability of such individual’’. Subsec. (b). Pub. L. 110–325, § 5(a)(2), substituted ‘‘dis- criminate against a qualified individual on the basis of disability’’ for ‘‘discriminate’’ in introductory provi- sions. 1991—Subsecs. (c), (d). Pub. L. 102–166 added subsec. (c) and redesignated former subsec. (c) as (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment by Pub. L. 110–325 effective Jan. 1, 2009, see section 8 of Pub. L. 110–325, set out as a note under section 705 of Title 29, Labor. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–166 inapplicable to con- duct occurring before Nov. 21, 1991, see section 109(c) of Pub. L. 102–166, set out as a note under section 2000e of this title. EFFECTIVE DATE Section effective 24 months after July 26, 1990, see section 108 of Pub. L. 101–336, set out as a note under section 12111 of this title. § 12113. Defenses (a) In general It may be a defense to a charge of discrimina- tion under this chapter that an alleged applica- tion of qualification standards, tests, or selec- tion criteria that screen out or tend to screen out or otherwise deny a job or benefit to an indi- vidual with a disability has been shown to be job-related and consistent with business neces- sity, and such performance cannot be accom- plished by reasonable accommodation, as re- quired under this subchapter. (b) Qualification standards The term ‘‘qualification standards’’ may in- clude a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace. (c) Qualification standards and tests related to uncorrected vision Notwithstanding section 12102(4)(E)(ii) of this title, a covered entity shall not use qualification