textfiles/law/disabil25.law

August 1991                                                      

                                                                  
             THE AMERICANS WITH DISABILITIES ACT                              

                             By

                  Jeffrey Higginbotham J.D.        
                        Special Agent
                      Legal Instructor
                         FBI Academy
                     Quantico, Virginia
                                    
                                                                  
     On July 26, 1990, President Bush signed the Americans With
Disabilities Act (ADA), which poses new challenges for law
enforcement administrators.  The ADA, which was enacted to
eliminate discrimination against individuals with disabilities,
provides protection against employment discrimination to
individuals who are disabled but nonetheless able to work. (1)
Though the ADA is not yet in effect, it will become effective
for employers with at least 25 employees on July 26, 1992, and
for employers with at least 15 employees on July 26, 1994. (2)
Therefore, law enforcement administrators should begin planning
now to ensure compliance with the act when it does become
effective.

     The purpose of this article is to discuss the requirements
of the ADA.  The article also brings to the attention of
administrators certain problem areas involving important policy
decisions that should be considered before the effective date of
the act. (3)

PROHIBITION OF DISCRIMINATION

     The ADA prohibits employers from discriminating "...against
a qualified individual with a disability because of the
disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions
and privileges of employment." (4)  The ADA also prohibits an
employer from conducting a medical examination or making
inquiries of a job applicant concerning the nature or severity
of a disability, unless a conditional offer of employment has
been made. (5)

     However, these general prohibitions of discrimination
against the disabled have two important thresholds that must be
met before a particular person is protected by the ADA.  First,
an applicant or employee must be disabled under the terms of the
act.  Second, in addition to that disability, the person must be
qualified to perform the job, with or without reasonable
accommodation by the employer.  More importantly, the ADA does
not automatically require that disabled persons be hired;
rather, it demands equal employment opportunities, but only if
those persons are capable of performing the essential functions
of the job.

WHAT CONSTITUTES A DISABILITY UNDER THE ADA?

     A person is defined by the ADA as disabled if that person
has a physical or mental impairment that substantially limits
one or more major life activities, has a record of such
impairment, or is regarded  as having such an impairment. (6)
Generally, a person is disabled if that person has any
physiological disorder, condition, disfigurement, anatomical
loss, or mental or psychological disorder that makes that
individual unable to perform such functions as caring for
himself or herself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, or working to the same
extent as an average person. (7)

     However, the exclusion of a person from a particular job or
position because of a physical or mental impairment is not
necessarily illegal discrimination under the ADA if that
individual is not "substantially limited" in a major life
activity.  "[A]n individual is not substantially limited in
working just because he or she is unable to perform a particular
job for one employer, or because he or she is unable to perform
a specialized job or profession requiring extraordinary skill,
prowess or talent." (8)

     In deciding whether a particular person is substantially
limited in the major life activity of working, it is instructive
to examine court decisions interpreting the Federal
Rehabilitation Act of 1973. (9)  Courts have held that the
protections against handicap discrimination in that act do not
"...include working at the specific job of one's choice....Being
declared unsuitable for the particular position of police
officer is not a substantial limitation of a major life
activity." (10) For example, some disabilities may be
disqualifying for some jobs or professions.  However, if these
disabilities do not act as a complete bar to other employment
opportunities, and the person is reasonably able to obtain
employment despite the disability, then under the ADA there is
no substantial limitation on the major life activity of working.

     There are also certain conditions that the ADA expressly
excludes from protection. These include current illegal drug
use, homosexuality, bisexuality, transvestism, exhibitionism,
voyeurism, gender identity disorder, sexual behavior disorder,
compulsive gambling, kleptomania, pyromania, and psychoactive
substance use disorders resulting from current illegal use of
drugs. (11)  Persons with these conditions are excluded from the
act's definition of disabled persons.

     The ADA's exclusion of current illegal drug users as
protected disabled persons raises a potential concern for law
enforcement employers.  While current illegal drug users do not
fall within the definition of a qualified disabled individual,
(12) former drug users are arguably protected by a provision in
the ADA, which provides that a protected disability includes a
person who:

     "...1) has successfully completed a supervised drug
     rehabilitation program and is no longer engaging in the
     illegal use of drugs, or has otherwise been rehabilitated
     successfully and is no longer engaging in such use; [or]

     2) is participating in a supervised rehabilitation program
     and is no longer engaging in such use." (13)

     While there is no caselaw directly on point, it might be 
argued that despite the above-cited ADA provision, law
enforcement employment can be denied to a former illegal drug
user because that persons prior conduct evinces unacceptable
character traits, lack of judgment, or failure to abide by the
law, all of which are relevant to the hiring and employment of
police officers. (14)

WHAT CONSTITUTES A "QUALIFIED" INDIVIDUAL UNDER THE ADA?        

     The determination that a physical or mental impairment
substantially limits a major life activity and renders a person
disabled under the ADA only completes the first threshold
requirement for protection.  The ADA also requires that disabled
persons be nonetheless qualified to perform the work required.

     The ADA defines a "qualified individual with a disability"
as "...an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires."
(15)  A law enforcement administrator's judgment as to what
functions are essential to a job and any written job description
used during the application or hiring process are considered
under the ADA to be evidence of a position's essential functions.
(16)

     Also relevant to these essential functions determinations
are the amount of time expended during the workday performing
certain functions, the consequences if those tasks are not
performed, and the work experience of current and past
incumbents of the position. (17)  Law enforcement administrators
should carefully identify the essential functions of each
particular job in their department, since the clear import of
the ADA is that discrimination on the basis of a disability that
affects only marginal or peripheral functions and not the
performance of essential functions is illegal. (18)

     Police administrators preparing for the full implementation
of the ADA would be well-served to review each job
classification within their agency thoroughly, paying particular
attention to tasks that require special skills, talents, or
abilities to perform the job's essential functions.  The
essential functions should be isolated so that informed
judgments can be made as to the capability of disabled
applicants or employees to hold those jobs successfully.

WHEN DO MEDICAL EXAMINATIONS AND INQUIRIES VIOLATE THE ADA?       

     The ADA contains specific prohibitions and requirements
concerning medical examinations and inquiries about
disabilities.  The ADA provides that an employer can only
"...conduct a medical examination or make inquiries of a job
applicant as to whether such applicant is an individual with a
disability or as to the nature or severity of such
disability...after an offer of employment has been made to a job
applicant...." (19)

     The employer may, however, condition an offer of employment
on the results of such an examination. (20)  Where a medical
examination is required after a conditional offer of employment
is made, the following three additional restrictions are
contained in the statute:

     1) All new employees must be subject to the medical
        examination;

     2) The information obtained during the medical examination 
        and the medical history of the applicant collected must
        be maintained "...on separate forms and in separate
        files and...treated as a confidential medical
        record..."; (21) and

     3) The results of the examination may be used only in
        accordance with the act. (22)

EFFECTS ON HIRING PRACTICES                                       

     The ADA's limitations on medical examinations and inquiries
concerning disabilities may require several significant changes
in police hiring practices.  First, those law enforcement
agencies that require applicants to undergo a complete medical
examination early in the application process may be required to
shift the medical examination to the later stages of the
application process.  This is because law enforcement agencies
covered by the ADA will have to first determine that an
applicant is eligible to be hired and make a conditional offer
of employment before subjecting the applicant to a medical
examination.  Second, law enforcement executives will have to
ensure the medical standards tested during the examination,
which might be disqualifying, are related to the essential
functions of the job before the offer of employment can be
withdrawn.

     A third likely change in police hiring practices concerns
psychological testing.  The use of psychological testing as an
employment screening device appears to be a growing practice,
(23) with some States requiring it as matter of law. (24)  While
the ADA does not ban the use of psychological testing, it may
require such testing be postponed until after a conditional
offer of employment is made because:  1) Psychological testing
may be construed to be a form of medical examination; and 2) the
ADA defines a disability to include a mental disorder or
impairment that substantially limits a major life activity.  To
the extent that psychological testing for personnel screening
identifies such conditions, the test would be subject to the ADA
requirement that such medical examinations and inquiries about
disabilities be done only after offers of employment are made.

     A fourth possible change to hiring practices concerns
application forms that currently contain a section for medical
information that requires applicants to list potentially
disabling impairments.  Because the ADA provides that such
inquiries can only be made after an offer of employment,
application forms provided to applicants as an initial step in
the hiring process may have to be altered to remove medical and
disability inquiries.  Moreover, the ADA's prohibition on
inquiries as to the nature or severity of disabilities may also
affect interviews of police applicants by requiring that
interviewers be familiar with the ADA and refrain from making
any prohibited inquiries about an applicant's disability.

     Finally, the ADA may require law enforcement agencies to
rethink their physical ability hiring standards.  Tests that
measure overall levels of fitness or specific physical abilities
as a condition of employment can now be challenged under the ADA
as not being job-related or consistent with a business
necessity.  Law enforcement physical ability and agility tests
have already spawned considerable litigation under Title VII of
the Civil Rights Act, and the ADA provides an additional basis
on which to raise legal challenges. (25)

PERMITTED EXAMINATIONS AND INQUIRIES

     There are four instances where the ADA permits medical
examinations or inquiries.  First, employers can question
applicants about their ability to perform job-related functions,
(26) but such questions should not be phrased in terms of the
disability. (27)  For example, police applicants could be asked
about their ability to drive a car or run a given distance
within an established time period as a job-related function, but
should not be asked if there are physical limitations that
prevent the applicant from driving or running.

     Similarly, an employer is permitted to require fitness for
duty examinations of current employees if required by State law
or when there is a need to determine whether the employee is
still able to perform the essential functions of the job.
However, employers cannot require the fitness for duty
examination if the employee's condition was not related to job
performance. (28)

     Second, it is permissible to conduct voluntary medical
examinations and collect voluntary medical histories as part of
an employee health program available to all employees at the
work site. (29)  Third, medical examinations of employees or
inquiries about the nature or severity of a disability are
permissible if shown to be "job-related and consistent with
business necessity." (30)  Fourth, the ADA specifically exempts
drug testing from the medical examination prohibitions.  Though
it does not appear Congress intended to encourage drug testing
by employers, those that choose to do so are not constrained by
the ADA. (31)

DEFENSES TO CHARGES OF UNLAWFUL DISCRIMINATION                    

     While the ADA is designed to ensure that qualified disabled
persons are given the same consideration for employment as
non-disabled persons, it also provides the following three
defenses that can be raised by employers charged with unlawful
discrimination:

     1) The qualification standards, tests, or selection
        criteria are job-related and consistent with business
        necessity;

     2) The disabled individual, if hired, would pose a direct  
        threat to the health or safety of the individual or
        others; and

     3) The employer is unable to reasonably accommodate the 
        disability of the individual. (32)                                   

The Job-related and Consistent with Business Necessity Defense    

     The concepts of job-relatedness and business necessity
require that law enforcement administrators preparing for the
implementation of the ADA conduct an analysis of jobs and tasks
for the purpose of identifying the essential functions of each
position.  Then, administrators must devise standards and
criteria that accurately reflect and measure those elements.
(33) If this is done properly, employment decisions may be made,
even if they adversely affect disabled persons.

     This defense is also important where an employer withdraws
an offer of employment based on the results of a medical
examination.  The job-relatedness and consistency with business
necessity must be shown if the exclusionary criteria of a
medical examination screens out disabled persons. (34)

The Direct Threat to Health or Safety Defense                     

     Employers can lawfully refuse to hire a disabled person
where the individual, if hired, would pose a direct threat to
the health or safety of others in the workplace. (35)  A direct
threat is defined by the ADA as "...a significant risk to the
health or safety of others that cannot be eliminated by
reasonable accommodation." (36)

     Such determinations should be made on a case-by-case basis,
and employers should carefully base their decisions on sound
medical knowledge and other objective factors, including the
duration of the risk, the nature and severity of the potential
harm, and the likelihood that the potential harm would occur.
(37) For example, a physical or mental condition that prevents
an individual from safely operating a patrol car or discharging
a firearm could constitute a lawful basis for terminating or
refusing employment as a patrol officer, even though that person
would be an otherwise "qualified disabled person" under the ADA.

      Police administrators should be circumspect in invoking
this defense since generalized fears, remote possibilities, or
only slightly enhanced threats to safety or health are
insufficient reasons for denying employment to a qualified
disabled person. (38)  Employment decisions must be based on
articulable and objective evidence.

The Inability to Reasonably Accommodate Defense                   

     A third defense available to employers is an inability to
reasonably accommodate the disability of an employee or
applicant.  The notion underlying the term "reasonable
accommodation" is that an employer may be able to make certain
adjustments to the workplace or to the conditions of employment
so that a disabled person, who otherwise possesses the
qualifications required for a particular position, is able to
function as a productive employee.

     The ADA expressly embodies the requirement for reasonable
accommodation in its definition of a qualified individual with a
disability. (39)  An employer's failure to make reasonable
accommodations to the known physical or mental limitations of
otherwise qualified applicants or employees is proscribed by the
act. (40)

     While the duty to accommodate the disability of an employee
or applicant reasonably is clear, the degree to which an
employer is required to alter the conditions of employment is
less clear.  Some of the express requirements of reasonable
accommodation include:  1) Making existing facilities readily
accessible to and usable by disabled individuals; 2) job
restructuring; 3) part-time or modified work schedules; 4)
reassignment to a vacant position; 5) acquisition or
modification of equipment; 6) modification of examinations,
training and policies; and 7) the provision of qualified readers
or interpreters.(41)

     However, the ADA does not require that employers make all
possible modifications to working conditions under the
obligation of reasonable accommodation.  For example,
alterations that are primarily for the personal benefit of the
individual or are not job-related do not fall within the
obligation of reasonable accommodation. (42)  The accommodation
need not be the employee's or applicants preference or even the
"best" accommodation, so long as it is sufficient to meet the
job-related needs of the disabled person. (43)  Similarly, an
employer is not required to restructure the essential functions
of a position to fit the skills of the disabled person or create
a new job that the disabled person can perform. (44)

     In addition, an employer is not required to accommodate a
disabled employee or applicant reasonably if it would create an
undue hardship on the operation of the employer's business. (45)
The ADA lists the following factors that should be considered in
determining whether a particular act or modification would
create an undue hardship:  1) The nature and cost of the
accommodation; 2) the overall financial resources of the
employer and the particular facility where the accommodation is
needed; 3) the number of persons employed at such facilities and
by the employer in general; and 4) the impact of the
accommodation upon the operation of the facility. (46)

     The Supreme Court has interpreted a similar reasonable
accommodation requirement under the Federal Rehabilitation Act.
(47) In School Board of Nassau County v. Arline, (48) a school
teacher with tuberculosis was removed from his classroom
assignment.  In addressing the school district's obligation to
reasonably accommodate the handicapped employee, the Supreme
Court stated:
                                                             
     "Although [employers] are not required to find another job
     for an employee who is qualified for the job he or she was
     doing, they cannot deny an employee alternative employment
     opportunities reasonably available under the employer's
     existing policies." (49)

     Similarly, in Southeastern Community College v. Davis, (50)
the Court ruled that accommodation of an employee's handicap is
not reasonable when it requires a fundamental change in the
nature of an employer's program.

     There is no indication that Congress intended the ADA's
reference to job restructuring as a form of reasonable
accommodation to undercut the Supreme Courts decisions in Arline
and Davis.  The ADA does not obligate employers to create new
jobs or remove essential functions from the requirements of a
particular position.  However, where a vacant job exists which a
disabled person could successfully perform, reassignment may be
required as a form of reasonable accommodation.  But, permanent
assignment to light duty positions would not be required, unless
permanent light duty positions are normally available. (51)

CONCLUSION                                                        

     The ADA will require law enforcement administrators to
analyze their personnel and hiring practices and to determine
the essential functions of each position in the department.  A
department's application process may have to be restructured to
ensure that medical and psychological tests are used only after
a conditional offer of employment has been made, unless such
tests can be shown to be job-related and consistent with
business necessity.  Law enforcement administrators should also
determine whether changes in the workplace or conditions of
employment or other reasonable accommodation can be made to
permit an otherwise qualified disabled person to perform jobs
successfully within the police agency.

     The ADA will pose new challenges for law enforcement
administrators.  However, with careful pre-planning and
appropriate consultation with the Equal Employment Opportunity
Commission, administrators can meet these challenges and ensure
that their departmental policies and practices are legally
defensible when the ADA becomes effective.


FOOTNOTES                                                         

     (1)  42 U.S.C. 12101 (1990).                                     

     (2)  The ADA becomes effective 24 months after the date of 
enactment.  In addition, 42 U.S.C. 12111(5)(A) provides that 
employers with 25 or more employees are subject to the act as of 
that date, and that employers with 15 or more employees will be 
subject to the act 2 years after that date.  Those employers with 
fewer than 15 employees are not subject to the ADA.  The ADA is 
not applicable to the Executive Branch of the U.S. Government.  
However, a closely parallel statute, the Federal Rehabilitation 
Act, 29 U.S.C. 794, already imposes many of the same requirements 
on the Federal Government.                                        

     (3)  In addition to other requirements discussed in this
article, the ADA imposes an obligation on employers to "post
notices in an accessible format to applicants, employees and
members describing the applicable provisions of the Act."  42
U.S.C. 12115.  It is recommended that in planning for
implementation of the ADA, law enforcement administrators
contact their local Equal Employment Opportunity Commission
(EEOC) office to consult on the appropriate language to be
contained in these notices and for guidance as to the number and
location of the required notices.

     (4)  42 U.S.C. 12112(a).                                         

     (5)  42 U.S.C. 12112(c).  The ADA is patterned largely
after Title VII of the Civil Rights Act of 1964, the statute
that prohibits employment discrimination based on sex, race,
religion, color, or national origin.  The remedies available to
an aggrieved qualified disabled person mirror the relief
available under Title VII.  See, 42 U.S.C. 12117.  An employer
who illegally discriminates against qualified disabled persons
may be liable for lost wages, attorneys' fees, costs, and
equitable relief.

     (6)  42 U.S.C. 12102(2).                                         

     (7)  See, proposed EEOC regulations, Sections 1630.2(h) and
(i), 56 Fed. Reg. 8578 (1991) (to be codified at 29 C.F.R. 1630)
(proposed February 28, 1991).

     (8)  See, proposed EEOC Interpretive Guidance on Title I of
the Americans With Disabilities Act, Part 1630.2(j), 50 Fed.
Reg.  8591 (1991) (proposed February 28, 1991).

     (9)  29 U.S.C. 790.  Cases decided under the Federal
Rehabilitation Act are precedentially significant in
interpreting the ADA because "Congress intended that the
relevant caselaw developed under the Rehabilitation Act be
generally applicable to the term `disability' as used in the
ADA."  See, proposed EEOC Interpretive Guidance on Title I of
the ADA, Part 1630.2(g), supra, note 8 and 42 U.S.C. 12201(a).

     (10)  Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989).  See
also, Forrissi v. Bowen, 794 F.2d 931 (4th Cir. 1986) and
Padilla v. City of Topeka, 708 P.2d 543 (Kan. 1985).

     (11)  42 U.S.C. 12208 and 12211.                                 

     (12)  42 U.S.C. 12210(a).                                        

     (13)  42 U.S.C. 12210(b).                                        

     (14)  See, Johnson v. Smith, 39 F.E.P. Cases 1106 (D. Minn. 
1985).  An analogous argument was successful in Huff v. Israel, 
573 F.Supp. 107 (M.D. Ga. 1983), where a law enforcement employee 
was dismissed following three off-duty convictions for driving 
under the influence of alcohol.  The employee sued, claiming 
protection of the Rehabilitation Act.  The court ruled that the 
employee was not being dismissed because of his handicap 
(alcoholism), but because of his criminal convictions, which  
demonstrated his inability to carry out the duties of law 
enforcement when he personally could not comply with the law.  
See also, Copeland v. Philadelphia Police Department, 840 F.2d 
1139 (3d Cir. 1988), cert. denied, 109 S.Ct. 1636 (1989) 
(termination of officer who used marijuana did not violate the 
Rehabilitation Act, since the officer was not otherwise qualified 
to perform the job).  Accord, AFGE v. Skinner, 885 F.2d 884 (D.C. 
Cir. 1988), cert. denied, 110 S.Ct. 1960 (1990); Herron v. 
McGuire, 803 F.2d 67 (2d Cir. 1986); Burka v. N.Y. Transit 
Authority, 680 F.Supp. 590 (S.D.N.Y. 1988).                       

     (15)  42 U.S.C. 12111(8).                                        

     (16)  Id.                                                        

     (17)  See, proposed EEOC regulations, Sections 1630.2(n),
supra, note 7.

     (18)  The following cases discuss various physical and
mental conditions that have been litigated under the Federal
Rehabilitation Act, see, infra, note 9, and may have
precedential significance in interpreting the ADA:
Vision--Trembczynski v.  City of Calumet City, No. 87C 0961
(N.D. Ill. 1987) (not reported, text in Westlaw); Padilla v.
City of Topeka, 708 P.2d 543 (Kansas 1985); City of Belleville
Police and Fire Commissioners v. Human Rights Commission, 522
N.E.2d 268 (Ill.  App. 5 Dist. 1988); City of Columbus v. Ohio
Civil Rights Commission, 492 N.E.2d 482 (Ohio App. 1985); State
by Cooper v.  Hennepin County, 425 N.W.2d 278 (Minn. App. 1988),
aff'd, 441 N.W.2d 106 (Minn. 1989).  Back or Shoulder
Injury--Dancy v.  Kline, 44 F.E.P. Cases 380 (N.D. Ill. 1987);
Mullen v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130
(4th Cir. 1988); Daniels v. Barry, 659 F.Supp. 999 (D.D.C.
1987); Mahoney v.  Ortiz, 645 F.Supp. 22 (S.D.N.Y. 1986).
Hypertension--Jurgella v.  Danielson, 764 P.2d 27 (Ariz. App.
1988).  Heart Condition--Cook v. Department of Labor, 688 F.2d
669 (9th Cir. 1982), cert.  denied, 464 U.S. 832 (1983); Walker
v. Attorney General of the United States, 570 F.Supp. 100
(D.D.C. 1983).  Disease--School Board of Nassau County v.
Arline, 107 S.Ct. 1123 (1987); Local 1812, AFGE v. Department of
State, 662 F.Supp. 50 (D.D.C. 1987); Shelby Township Fire Dept.
v. Shields, 320 N.W.2d 306 (Mich. App.  1982).
Epilepsy--Pineiro v. Lehman, 653 F.Supp. 483 (D.P.R.  1987);
Costner v. United States, 720 F.2d 539 (8th Cir. 1983); Duran v.
City of Tampa, 430 F.Supp. 75 (M.D. Fla. 1977).  Psychological
Ailment--Desper v. Montgomery County, 727 F.Supp.  959 (E.D. Pa.
1990); Pickut v. Dept. of Air Force, 24 MSPR 433 (M.S.P.B. 184);
Daley v. Koch, 892 F.2d 212 (2d Cir. 1989).  Hearing
Loss--Packard v. Gordon, 537 A.2d 140 (Vt. 1987).  Alcohol--Huff
v. Israel, 573 F.Supp. 107 (M.D. Ga. 1983).
Allergies--Commonwealth of Pennsylvania v. Pennsylvania Human
Relations Commission, 457 A.2d 584 (Pa. Cmwlth. 1983).  Missing
Organ--Pennsylvania State Police v. Commonwealth, 483 A.2d 1039
(Pa. Cmwlth. 1984), revd on other grounds, 517 A.2d 1253 (Pa.
1985).  Weight--Tudyman v. United Airlines, 608 F.Supp. 739
(C.D.  Cal. 1984); United Paramedics of Los Angeles v. City of
Los Angeles, No. 89-1182-R, C.D. Cal. 3/8/89; Smith v. Folmar,
534 So.2d 309 (Ala. Civ. App. 1988).

     (19)  42 U.S.C. 12112 (c)(2)-(3).                                

     (20)  Id.                                                        

     (21)  Id.                                                        

     (22)  Id.  The permitted uses of medical information
include notification to supervisors and managers of duty or work
restriction; notice to first aid, safety, or emergency
personnel; and disclosure to government officials investigating
compliance with the ADA.

     (23)  36 Law and Order 66 (Feb. 1988) (55% of law
enforcement agencies nationwide now use psychological testing
for personnel screening).

     (24)  See, e.g., Young, "Reviewing the Pre-Employment
Psychological Test," Journal of California Law Enforcement, vol.
22, No. 47, 1988.

     (25)  For a discussion of some of these legal issues, see,
Daniel L. Schofield, "Establishing Health and Fitness Standards:
Legal Considerations," FBI Law Enforcement Bulletin, vol. 58,
No. 6, June 1989.

     (26)  42 U.S.C. 12112(c)(2)(B) and 12112 (c)(4).                 

     (27)  See, proposed EEOC Interpretive Guidance of Title I
of the ADA, APart 1630.13(b), supra, note 8.

     (28)  Id.                                                        

     (29)  42 U.S.C. 12112 (c)(4)(B).                                 

     (30)  42 U.S.C. 12112(c)(4)(A).                                  

     (31)  42 U.S.C. 12114(d).                                        

     (32)  42 U.S.C. 12113.                                           

     (33)  Neither the ADA nor the proposed regulations provide
a definition of "job-related" or "business necessity." However,
both terms have been used in connection with Title VII
litigation and caselaw under that statute would be instructive
on their meaning in the ADA.

     (34)  See, proposed EEOC Interpretive Guidance on Title I
of the Americans With Disabilities Act, Part 1630.14(b), supra,
note 8.

     (35)  42 U.S.C. 12113(b).                                        

     (36)  42 U.S.C. 12111(3).  However, the proposed
regulations and guidelines issued by the EEOC expand this to
include direct threats to the health or safety of the applicant
or employee personally, as well as to other persons.  See,
proposed EEOC regulations, Section 1630.2(r), supra, note 7;
EEOC Interpretive Guidance on Title I of the Americans With
Disabilities Act, Section 1630.2(r), supra, note 8.

     (37)  See, proposed EEOC regulations, Section 1630.2(r),
supra, note 7.

     (38)  See, proposed EEOC Interpretive Guidance on Title I
of the Americans with Disabilities Act, Section 1630.2(r),
supra, note 8.

     (39)  42 U.S.C. 12111(8).                                        

     (40)  42 U.S.C. 12112(b)(5)(A).

     (41)  42 U.S.C. 12111(9)                                         

     (42)  See, proposed EEOC Interpretive Guidance on Title I
of the Americans With Disabilities Act, Part 1630.2(o), supra,
note 8.

     (43)  Id.                                                        

     (44)  Id.                                                        

     (45)  42 U.S.C. 12112(b)(5)(A).                                  

     (46)  42 U.S.C. 12111(10).                                       

     (47)  29 U.S.C. 794.                                             

     (48)  107 S.Ct. 1123 (1987).                                     

     (49)  Id. at 1131, n.16.                                         

     (50)  442 U.S. 397 (1979).                                       

     (51)  See, Simon v. St. Louis County, 735 F.2d 1082 (8th
Cir.  1984); Dancy v. Kline, 44 F.E.P. Cases 380 (N.D. Ill,
1987); Pineiro v. Lehman, 653 F.Supp. 483 (D.P.R. 1987).