Section 2500.10  Purpose and Coverage

 

This Part interprets the provisions of Section 2-102 of the Illinois Human Rights Act (Act) prohibiting discrimination in employment against persons with disabilities.  For purposes of the prohibition against disability discrimination, Section 2-102 applies to all units of State and local government in Illinois, to all private firms employing one or more individuals, and to all employment agencies and labor organizations (see Section 2-101(B), (C) and (D) of the Act).

 

(Source:  Amended at 33 Ill. Reg. 3506, effective February 5, 2009)

 

Section 2500.20  What Constitutes a "Disability"

 

a)         Statutory Definition – According to Section 1-103(I) of the Act, the term "disability" in employment contexts means a determinable physical or mental characteristic of a person, including but not limited to a determinable physical characteristic which necessitates the person's use of a guide or hearing dog, the history of such characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder and which characteristic is unrelated to the person's ability to perform the duties of a particular job or position.  This Section, together with Section 2500.30, interprets the various clauses within this definition.

 

b)         Determinable Physical or Mental Characteristic

 

1)         The definition is not confined to only those physical and mental conditions that are grave or extreme in nature.  However, it is interpreted as excluding:

 

A)        conditions that are transitory and insubstantial; and

 

B)        conditions that are not significantly debilitating or disfiguring.

 

2)         To be covered, a condition must be "determinable" by recognized clinical or laboratory diagnostic techniques.

 

c)         Resulting from Disease, Injury, Congenital Condition of Birth or Functional Disorder

If a dispute arises as to whether a condition constitutes a disablity, it is the burden of the person claiming the disability to establish that the condition results from disease, injury, congenital condition of birth or functional disorder.  For example, the conditions of obesity and drug or alcohol abuse shall not be deemed "disabilities" unless the person can demonstrate that the condition arises from or constitutes the equivalent of a disease or functional disorder.  (Even when alcohol or drug dependence is established as constituting a disease or functional disorder, see subsection (d) of this Part regarding whether the condition is "unrelated to the person's ability".)

 

d)         Unrelated to the Person's Ability to Perform the Duties of a Particular Job or Position

 

1)         Under this language, the real or suspected implications of a person's physical or mental condition are irrelevant, and therefore cannot justify discrimination against the person, if those implications do not affect the person's ability to acceptably perform the particular job in question. Irrelevant implications include the preferences of co-workers, clients and customers; the expense of providing fringe benefits such as group insurance; and potential workers' compensation liability.  Moreover, a condition is "unrelated to a person's ability to perform the duties of a particular job or position" if it merely affects the person's ability to perform tasks or engage in activities that are apart from or only incidental to the job in question.

 

2)         On the other hand, a person's condition is related to his/her ability if it would make employment of the person in the particular position demonstrably hazardous to the health or safety of the person or others, or if it is manifested or results in behavior (e.g., absenteeism, poor quality or quantity of production or disruptiveness) that fails to meet acceptable standards.  Reasonable accommodation of a person's physical or mental limitations must be explored, in accordance with Section 2500.40, to determine whether the condition prevents acceptable or safe performance of the activities necessary to the job.  However, a person's alcoholism or drug dependence, manifested in intoxication or excessive absence or tardiness at work, is presumptively related to the person's ability to perform.

 

(Source:  Amended at 33 Ill. Reg. 3506, effective February 5, 2009)

 

Section 2500.30  Who is Protected Against Disability Discrimination

 

a)         Section 1-103(I) of the Act provides that a person is protected against discrimination if he/she

 

1)         is currently exhibiting a condition that constitutes a "disability";

 

2)         has a history of exhibiting such a condition; or

 

3)         is perceived by an employer, employment agency or labor organization as being or having exhibited such a condition.

 

b)         An individual has a "history" of a disabling condition if he/she is restored or recovered from a prior disability or if the individual's symptoms are in remission.  For example, persons who have had heart attacks or cancer are protected against discrimination based upon their medical histories.  The perception of a disabling condition may occur with regard to an individual who has been misdiagnosed, misclassified, or erroneously viewed as one who is disabled or as having had a history of disability; the individual similarly is protected against discrimination based upon that erroneous perception. The perception may also occur in connection with a person whose current non-disabling condition, e.g., hypertension, is viewed as creating the potential for future disability.

 

(Source:  Amended at 33 Ill. Reg. 3506, effective February 5, 2009)

 

Section 2500.40  Reasonable Accommodation

 

a)         Requirement – Employers and labor organizations must make reasonable accommodation of the known physical or mental limitations of otherwise qualified disabled applicants or employees, unless the employer or labor organization can demonstrate that accommodation would be prohibitively expensive or would unduly disrupt the ordinary conduct of business. Whether an accommodation would be prohibitively expensive or disruptive will involve weighing its cost and inconvenience against the immediate and potential benefits of providing it, when the immediate benefit is facilitation of the disabled person's employment and the potential benefits include facilitating access by other disabled employees, applicants, clients and customers.  Accommodation may include: alteration of the facility or work site; modification of work schedules or leave policy; acquisition of equipment; job restructuring; provision of readers or interpreters; and other similar actions.

 

b)         Exceptions – Accommodations of a personal nature (e.g., eyeglasses or hearing aids) need not be provided, nor is it necessary to provide any superfluous accommodation (e.g., provision of a chauffeur to accommodate a blind person's traveling difficulties).  No employer is required to hire two full time employees to perform one job in order to accommodate a disabled individual.

 

c)         Employee's Burden – It is the duty of the individual seeking an accommodation to apprise the employer or labor organization involved of the employee's disabling condition and submit any necessary medical documentation.  The individual must ordinarily initiate the request for accommodation and must cooperate in any ensuing discussion and evaluation aimed at determining the possible or feasible accommodations.

 

d)         Employer's or Labor Organization's Burden – Once a disabled individual has initiated a request for accommodation, or if a potential accommodation is obvious in the circumstances, it is the duty of the employer or labor organization involved to provide the necessary accommodation in conformance with subsection (a).  In response to a discrimination charge involving a refusal to provide an accommodation, an employer or labor organization must show that the disabled individual would be unqualified even with accommodation, that the accommodation would be prohibitively expensive or would unduly disrupt the conduct of business, or that the accommodation would constitute an exception as described in subsection (b).

 

(Source:  Amended at 33 Ill. Reg. 3506, effective February 5, 2009)

 

Section 2500.50  Bona Fide Occupational Qualification

 

Section 2-104(A) of the Act prescribes that it is not a violation for an employer, employment agency or labor organization to discriminate based on a criterion which constitutes a bona fide occupational qualification (BFOQ) for a particular job.  This exemption is narrowly construed, and the person claiming the exemption bears the burden of establishing that it is available in the particular instance.  A BFOQ is properly applied as an exclusion of an entire class of individuals on the basis of a standard that is necessary for safe or efficient job performance.  If an employer or employment agency can demonstrate that all persons with a particular physical or mental condition would be incapable of performing a specific job in a safe or efficient manner, the BFOQ exception to the Act may be invoked.  Some examples of BFOQs for specific positions are as follows: sight for a school crossing guard; speech for a radio announcer; and hearing for an air traffic controller.  Freedom from any condition which merely presents a risk of future injury cannot qualify as a BFOQ.  If an individual can perform the position in question safely and efficiently with a reasonable accommodation, a BFOQ defense to a charge of discrimination cannot be established.

 

Section 2500.60  Pre-Employment Inquiries and Examinations

 

a)         Inquiries – An employer, employment agency or labor organization may not require a job applicant to list or disclose all disabling conditions that the applicant is exhibiting.  However, it is not a violation of the Act for an employer, employment agency or labor organization to inquire, uniformly of all applicants for employment, referral or admission to an apprenticeship or other training program, whether they have physical or mental disabilities that may impair their abilities to acceptably perform the required duties or to successfully complete the apprenticeship or training programs.

 

b)         Examinations – An employer, employment agency or labor organization may require all applicants who have been found otherwise qualified for selection to submit to pre-employment physical or psychological examinations for the purpose of determining whether applicants are capable of acceptably performing the activities necessary to the job or training at issue.  Examinations may also be utilized to ascertain the nature of any accommodation needed to enable the applicant to perform acceptably, but not to disqualify applicants who are revealed as having a condition or characteristic presenting a risk of future injury.  Pre-employment physical or psychological examinations may be conducted prior to the stage at which applicants are evaluated as otherwise fully qualified if the practice is followed consistently with all applicants, and if it can be demonstrated that each subsequent evaluative procedure is more expensive or burdensome than the physical or psychological examination.  In all events, however, the results of any pre-employment examination must be made available to the applicant, upon request.

 

(Source:  Amended at 33 Ill. Reg. 3506, effective February 5, 2009)