Handicap Discrimination in Employment

PURPOSE: The Missouri Commission on Human Rights has the power and authority to adopt suitable rules to carry out the provisions of the state Fair Employment Practices Act pursuant to 213.030(6), RSMo (1986). The rules represent the commission’s construction of provisions dealing with handicap discrimination in employment. (1) Definitions. When used in these rules— (A) The phrase physical or mental impairment means— 1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one (1) or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or 2. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and learning disabilities; (B) Disability means a person either has a physical or mental impairment which substantially limits one (1) or more of that person’s major life activities; or has a record of such impairment; or is regarded as having such an impairment. 1. Minor temporary illnesses shall not be considered physical or mental impairments resulting in a disability. Examples of minor temporary illnesses include, but are not limited to, broken bones, sprains, or colds; (C) Major life activities means those life activities which affect employability such as communication, ambulation, self-care, socialization, education, vocational training, employment, and transportation; (D) Has a record of such an impairment means a person has a history of, or has been misclassified, as having a physical or mental impairment that does not substantially limit major life activities but that is treated by an employer as constituting such a limitation; (E) Is regarded as having such an impairment means a person— 1. Has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer or by others as constituting such a limitation; or 2. Has none of the impairments defined in paragraph (1)(A)1. Or 2. of this rule, but is treated by an employer or by others as having an impairment which substantially limits a major life activity; (F) Disability unrelated to a person’s ability to perform the duties of a particular job or position means a disability which does not substantially interfere with a person’s ability to perform the essential functions of the employment for which the person applies, is engaged in or had been engaged. 1. Uninsurability or increased cost of insurance under a group or employee insurance plan does not render a disability job related. 2. A disability is not job related merely because the job may pose a threat of harm to the employee or applicant with the disability unless the threat is one of demonstrable serious harm to his/her safety. 3. A disability is job related if placing the disabled person in the job would pose a demonstrable threat of harm to the health and safety of others. 4. A disability is not job related if, with reasonable accommodation, it does not prevent performance of the essential functions of the job in question; and (G) Reasonable accommodation means— 1. An employer shall make reasonable accommodation to the known limitations of a handicapped employee or applicant; 2. Accommodation may include: A. Making facilities used by employees readily accessible to and usable by handicapped persons; and B. Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters and other similar actions; and 3. In determining whether an accommodation is reasonable, factors to be considered include, but are not limited to: A. The nature and cost of the accommodation needed; B. The size and nature of a business, including the number and type of facilities and the structure and composition of the work force; C. The good faith efforts previously made to accommodate similar disabilities; and D. The ownership interest in the subject of the proposed accommodation including the authority to make the accommodation under the terms of any bona fide agreement such as a lease. (2) Preemployment Inquiries. (A) An employer, labor organization, or employment agency shall not make preemployment inquiry of an applicant as to whether the applicant has a physical or mental impairment or as to the nature or severity of this impairment. However, an employer, labor organization, or employment agency may make preemployment inquiry into an applicant’s ability to perform specific jobrelated functions. (3) Employment Criteria. (A) An employer, labor organization, or employment agency shall not make use of any employment test or other selection criterion which screens out or tends to screen out handicapped persons or any class of handicapped persons unless— 1. The test score or the selection criterion is shown to be job related for the position in question; and 2. Alternative job-related tests or criteria that do not screen out or tend to screen out as many handicapped persons are shown to be unavailable. (B) An employer, labor organization, or employment agency shall select and administer tests concerning employment to ensure that, when administered to the applicant or employee who has a handicap that impairs sensory, manual, reading or speaking skills, the test results accurately reflect the applicant’s or employee’s job skills, aptitude, or whatever other factor the test purports to measure, rather than reflecting the applicant’s or employee’s impaired sensory, manual, reading, or speaking skills, except where those skills are the factors that the test purports to measure. (C) The requirements of 8 CSR 60-3.030 regarding employment testing shall apply to the handicapped. (4) The requirements of 8 CSR 60-3.010 regarding employer reporting and preservation of records shall apply to the handicapped. (5) The requirements of 8 CSR 60-3.020 regarding employment advertising practices shall apply to the handicapped. (6) The requirements of Chapter 8 CSR 60-2 regarding practice and procedure shall apply to the handicapped. AUTHORITY: section 213.030(6), RSMo 2016.* This rule was previously filed as 4 CSR 180-3.060. Original rule filed July 1, 1980, effective Nov. 13, 1980. Amended: Filed April 27, 2018, effective Nov. 30, 2018. *Original authority: 213.030, RSMo 1959, amended 1978, 1986, 1992, 1993, 1995, 1998.