United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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The employer is entitled to make its employment determination on the basis of the employee's condition at the time of the testing of that qualification and does not need to delay a hiring decision on the possibility that an applicant may become qualified. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 62; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Congress did not intend to include correctable and temporary impairments in the definition of handicapped individual because these conditions do not generally eliminate individuals from consideration for the majority of jobs. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 26, 1986, slip op. at 14, rev'd, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 14; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Administrative Law Judge rejected OFCCP's contention, that the court should consider whether individuals are substantially limited by examining their ability to perform tasks without corrective devices. OFCCP v. Delta Airlines, Inc., 94-OFC-8, ALJ Recommended Decision and Order on Cross-Motions for Summary Judgment, March 20, 1996, at 8; exceptions pending, Administrative Review Board.

Congress in passing the American with Disabilities Act (ADA), used the specific example of an individual like the complainant who suffered from a correctable hearing impairment, to illustrate application of the term substantially limits and to distinguish minor, trivial impairments from those that restrict the conditions, manner, or duration under which [important life activities] can be performed in comparison to most people. OFCCP v. Commonwealth Aluminum, 82-OFC-6, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 14; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

There is no basis in the Act to permit a contractor to require an employee or applicant for employment to undergo a treatment, operation or drug regimen before being considered for employment or being entitled to other terms, conditions or privileges of employment. That decision is a private one to be made by each individual with a handicap in consultation with his or her physician and other health professionals. Rather, the contractor has an obligation under the duty to make reasonable accommodation to permit an individual with a disability the opportunity to provide and utilize equipment, aids or services that an employer is not required to provide as a reasonable accommodation. Id. at 14-15; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).

The Assistant Secretary rejected the ALJ's holding that complainant was not a handicapped individual because his hernia was temporary and correctable. The Assistant Secretary held, that where an employer regards an individual as being foreclosed generally from employment with them, that individual is handicapped. Id. at 22; remanded sub. nom., Commonwealth Aluminum Corp. v. United States Department of Labor, No. 94-0071-0(c) (W.D. Ky. September 6, 1996).