On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act (ADAAA) or Senate Bill 3406 (actual text of which can be found here).
The changes the ADAAA entails have been well covered, especially over at George's Employment Blawg. The purpose of this post isn't to give a detailed analysis of the changes, but rather highlight what it means for recruiting and hiring.
First, a brief reminder of who is covered by the ADA. It covers not only those who have a substantially disability that limits a major life activity, but those who have a record of such a disability, and those who are REGARDED as having a disability (more about this in a second). Check out this information from the EEOC for a brief overview.
Given that introduction, there are two big things we all need to be aware of when it comes to the new bill:
1) Who is considered "disabled" under the ADA has just been increased dramatically. The ADAAA explicitly rejects several U.S. Supreme Court cases made in the last 10 years that narrowed who was considered disabled, and restores the broad scope. One big way they did this was by including those whose disability can be mitigated (e.g., controlling diabetes).
2) Individuals who claim injury because they were "regarded" as having a disability have a much easier time qualifying under that category.
So what does this mean? It doesn't fundamentally change anything we do when recruiting or assessing candidates. But it does mean this: recruiters and hiring managers have to be even more careful about making assumptions when sizing up candidates. Because more people are now covered by the ADA, our potential risk has expanded.
And because of the expansion of who is covered, particularly in the "regarded" category, recruiters and hiring managers should receive explicit training not to assume someone is disabled and therefore can't do the job. Their inquiry (if they must make one) should be limited to this question: "Can you perform the essential functions of the job, with or without reasonable accommodation?"
That's the only question they should ask on this topic, and they should ask it of all candidates. Of course they should also be prepared to answer this question: "Well I'm not sure. What are the essential functions?" (another great use for job analysis)
So bottom line: big change to the law, relatively small change to the way we do business. But a good reminder of our responsibilities.
p.s. other good reads regarding ADAAA include this article and this essay