---
kind: "range"
citation: "42 U.S.C. §§ 12112–12114"
title: "42"
from: "12112"
to: "12114"
count: 3
release: "119-102"
url: "https://uscodex.org/usc/42/12112..12114"
---

# §12112. Discrimination

- (a) **General rule—** No [covered entity](/usc/42/12111.md?p=2) shall [discriminate against a qualified individual on the basis of disability](#b) in regard to job application procedures, the hiring, advancement, or discharge of [employees](/usc/42/12111.md?p=4), [employee](/usc/42/12111.md?p=4) compensation, job [training](/usc/42/285e–2.md?p=b-2), and other terms, conditions, and privileges of employment.
- (b) **Construction—** As used in [subsection (a)](#a), the term “discriminate against a qualified individual on the basis of disability” includes—
  - (1) limiting, segregating, or classifying a job applicant or [employee](/usc/42/12111.md?p=4) in a way that adversely affects the opportunities or status of such applicant or [employee](/usc/42/12111.md?p=4) because of the [disability](/usc/42/12102.md?p=1) of such applicant or [employee](/usc/42/12111.md?p=4);
  - (2) participating in a contractual or other arrangement or relationship that has the effect of subjecting a [covered entity](/usc/42/12111.md?p=2)’s qualified applicant or [employee](/usc/42/12111.md?p=4) with a [disability](/usc/42/12102.md?p=1) to the discrimination prohibited by this subchapter (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an [employee](/usc/42/12111.md?p=4) of the [covered entity](/usc/42/12111.md?p=2), or an organization providing [training](/usc/42/285e–2.md?p=b-2) and apprenticeship [programs](/usc/42/274l–1.md?p=4));
  - (3) utilizing [standards](/usc/42/1320d.md?p=7), criteria, or methods of administration—
    - (A) that have the effect of discrimination on the basis of [disability](/usc/42/12102.md?p=1); or
    - (B) that perpetuate the discrimination of others who are subject to common administrative control;
  - (4) excluding or otherwise denying equal jobs or benefits to a [qualified individual](/usc/42/12111.md?p=8) because of the known [disability](/usc/42/12102.md?p=1) of an individual with whom the [qualified individual](/usc/42/12111.md?p=8) is known to have a relationship or association;
  - (5)
    - (A) not making [reasonable accommodations](/usc/42/12111.md?p=9) to the known physical or mental limitations of an otherwise [qualified individual with a disability](/usc/42/5057.md?p=a-2) who is an applicant or [employee](/usc/42/12111.md?p=4), unless such [covered entity](/usc/42/12111.md?p=2) can demonstrate that the accommodation would impose an [undue hardship](/usc/42/12111.md?p=10-A) on the operation of the business of such [covered entity](/usc/42/12111.md?p=2); or
    - (B) denying employment opportunities to a job applicant or [employee](/usc/42/12111.md?p=4) who is an otherwise [qualified individual with a disability](/usc/42/5057.md?p=a-2), if such denial is based on the need of such [covered entity](/usc/42/12111.md?p=2) to make [reasonable accommodation](/usc/42/12111.md?p=9) to the physical or mental impairments of the [employee](/usc/42/12111.md?p=4) or applicant;
  - (6) using qualification [standards](/usc/42/1320d.md?p=7), employment tests or other selection criteria that screen out or tend to screen out an [individual with a disability](/usc/42/12210.md?p=a) or a class of individuals with [disabilities](/usc/42/12102.md?p=1) unless the [standard](/usc/42/1320d.md?p=7), test or other selection criteria, as used by the [covered entity](/usc/42/12111.md?p=2), is shown to be job-related for the position in question and is consistent with business necessity; and
  - (7) failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or [employee](/usc/42/12111.md?p=4) who has a [disability](/usc/42/12102.md?p=1) that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or [employee](/usc/42/12111.md?p=4) that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such [employee](/usc/42/12111.md?p=4) or applicant (except where such skills are the factors that the test purports to measure).
- (c) **Covered entities in foreign countries—**
  - (1) **In general—** It shall not be unlawful under this section for a [covered entity](/usc/42/12111.md?p=2) to take any action that constitutes discrimination under this section with respect to an [employee](/usc/42/12111.md?p=4) in a workplace in a foreign country if compliance with this section would [cause](/usc/42/9908.md?p=c-2) such [covered entity](/usc/42/12111.md?p=2) to violate the law of the foreign country in which such workplace is located.
  - (2) **Control of corporation—**
    - (A) **Presumption—** If an [employer](/usc/42/12111.md?p=5-A) controls a [corporation](/usc/42/2296b–7.md?p=1) whose place of incorporation is a foreign country, any practice that constitutes discrimination under this section and is engaged in by such [corporation](/usc/42/2296b–7.md?p=1) shall be presumed to be engaged in by such [employer](/usc/42/12111.md?p=5-A).
    - (B) **Exception—** This section shall not apply with respect to the foreign operations of an [employer](/usc/42/12111.md?p=5-A) that is a foreign [person](/usc/42/1320a–7k.md?p=d-4-C-i) not controlled by an American [employer](/usc/42/12111.md?p=5-A).
    - (C) **Determination—** For purposes of this paragraph, the determination of whether an [employer](/usc/42/12111.md?p=5-A) controls a [corporation](/usc/42/2296b–7.md?p=1) shall be based on—
      - (i) the interrelation of operations;
      - (ii) the common management;
      - (iii) the centralized control of labor relations; and
      - (iv) the common ownership or financial control,

      of the [employer](/usc/42/12111.md?p=5-A) and the [corporation](/usc/42/2296b–7.md?p=1).

- (d) **Medical examinations and inquiries—**
  - (1) **In general—** The prohibition against discrimination as referred to in [subsection (a)](#a) shall include medical examinations and inquiries.
  - (2) **Preemployment—**
    - (A) **Prohibited examination or inquiry—** Except as provided in [paragraph (3)](#d-3), a [covered entity](/usc/42/12111.md?p=2) shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an [individual with a disability](/usc/42/12210.md?p=a) or as to the nature or severity of such [disability](/usc/42/12102.md?p=1).
    - (B) **Acceptable inquiry—** A [covered entity](/usc/42/12111.md?p=2) may make preemployment inquiries into the ability of an applicant to perform job-related functions.
  - (3) **Employment entrance examination—** A [covered entity](/usc/42/12111.md?p=2) may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if—
    - (A) all entering [employees](/usc/42/12111.md?p=4) are subjected to such an examination regardless of [disability](/usc/42/12102.md?p=1);
    - (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that—
      - (i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the [employee](/usc/42/12111.md?p=4) and necessary accommodations;
      - (ii) first aid and safety personnel may be informed, when appropriate, if the [disability](/usc/42/12102.md?p=1) might require emergency [treatment](/usc/42/11851.md?p=11); and
      - (iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and
    - (C) the results of such examination are used only in accordance with this subchapter.
  - (4) **Examination and inquiry—**
    - (A) **Prohibited examinations and inquiries—** A [covered entity](/usc/42/12111.md?p=2) shall not require a medical examination and shall not make inquiries of an [employee](/usc/42/12111.md?p=4) as to whether such [employee](/usc/42/12111.md?p=4) is an [individual with a disability](/usc/42/12210.md?p=a) or as to the nature or severity of the [disability](/usc/42/12102.md?p=1), unless such examination or inquiry is shown to be job-related and consistent with business necessity.
    - (B) **Acceptable examinations and inquiries—** A [covered entity](/usc/42/12111.md?p=2) may conduct voluntary medical examinations, including voluntary medical histories, which are part of an [employee](/usc/42/12111.md?p=4) health [program](/usc/42/274l–1.md?p=4) available to [employees](/usc/42/12111.md?p=4) at that work site. A [covered entity](/usc/42/12111.md?p=2) may make inquiries into the ability of an [employee](/usc/42/12111.md?p=4) to perform job-related functions.
    - (C) **Requirement—** Information obtained under [subparagraph (B)](#d-4-B) regarding the medical condition or history of any [employee](/usc/42/12111.md?p=4) are subject to the requirements of subparagraphs [(B)](#d-3-B) and [(C)](#d-3-C) of paragraph (3).

# §12113. Defenses

- (a) **In general—** It may be a defense to a charge of discrimination under this chapter that an alleged application of [qualification standards](#b), tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an [individual with a disability](/usc/42/12210.md?p=a) has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by [reasonable accommodation](/usc/42/12111.md?p=9), as required under this subchapter.
- (b) **Qualification standards—** The term “qualification standards” may include a requirement that an individual shall not pose a [direct threat](/usc/42/12111.md?p=3) to the health or safety of other individuals in the workplace.
- (c) **Qualification standards and tests related to uncorrected vision—** Notwithstanding [section 12102(4)(E)(ii) of this title](/usc/42/12102.md?p=4-E-ii), a [covered entity](/usc/42/12111.md?p=2) shall not use [qualification standards](#b), employment tests, or other selection criteria based on an individual’s uncorrected vision unless the [standard](/usc/42/1320d.md?p=7), test, or other selection criteria, as used by the [covered entity](/usc/42/12111.md?p=2), is shown to be job-related for the position in question and consistent with business necessity.
- (d) **Religious entities—**
  - (1) **In general—** This subchapter shall not prohibit a religious [corporation](/usc/42/2296b–7.md?p=1), association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such [corporation](/usc/42/2296b–7.md?p=1), association, educational institution, or society of its activities.
  - (2) **Religious tenets requirement—** Under this subchapter, a religious organization may require that all applicants and [employees](/usc/42/12111.md?p=4) conform to the religious tenets of such organization.
- (e) **List of infectious and communicable diseases—**
  - (1) **In general—** The [Secretary](/usc/42/242q–4.md?p=2) of Health and Human Services, not later than 6 months after July 26, 1990, shall—
    - (A) review all infectious and communicable diseases which may be transmitted through handling the food supply;
    - (B) publish a list of infectious and communicable diseases which are transmitted through handling the food supply;
    - (C) publish the methods by which such diseases are transmitted; and
    - (D) widely disseminate such information regarding the list of diseases and their modes of transmissability[^1] to the general public.

    Such list shall be updated annually.

  - (2) **Applications—** In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the [Secretary](/usc/42/242q–4.md?p=2) of Health and Human Services under [paragraph (1)](#e-1), and which cannot be eliminated by [reasonable accommodation](/usc/42/12111.md?p=9), a [covered entity](/usc/42/12111.md?p=2) may refuse to assign or continue to assign such individual to a job involving food handling.
  - (3) **Construction—** Nothing in this chapter shall be construed to preempt, modify, or amend any [State](/usc/42/12103.md?p=2), county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by [reasonable accommodation](/usc/42/12111.md?p=9), pursuant to the list of infectious or communicable diseases and the modes of transmissability[^1] published by the [Secretary](/usc/42/242q–4.md?p=2) of Health and Human Services.

# §12114. Illegal use of drugs and alcohol

- (a) **Qualified individual with a disability—** For purposes of this subchapter, a [qualified individual with a disability](/usc/42/5057.md?p=a-2) shall not include any [employee](/usc/42/12111.md?p=4) or applicant who is currently engaging in the [illegal use of drugs](/usc/42/12111.md?p=6-A), when the [covered entity](/usc/42/12111.md?p=2) acts on the basis of such use.
- (b) **Rules of construction—** Nothing in [subsection (a)](#a) shall be construed to exclude as a [qualified individual with a disability](/usc/42/5057.md?p=a-2) an individual who—
  - (1) has successfully completed a supervised [drug](/usc/42/12111.md?p=6-B) rehabilitation [program](/usc/42/274l–1.md?p=4) and is no longer engaging in the [illegal use of drugs](/usc/42/12111.md?p=6-A), or has otherwise been rehabilitated successfully and is no longer engaging in such use;
  - (2) is participating in a supervised rehabilitation [program](/usc/42/274l–1.md?p=4) and is no longer engaging in such use; or
  - (3) is erroneously regarded as engaging in such use, but is not engaging in such use;

  except that it shall not be a [violation](/usc/42/2000e–16a.md?p=c) of this chapter for a [covered entity](/usc/42/12111.md?p=2) to adopt or administer reasonable policies or procedures, including but not limited to [drug](/usc/42/12111.md?p=6-B) testing, designed to ensure that an individual described in paragraph [(1)](#b-1) or [(2)](#b-2) is no longer engaging in the [illegal use of drugs](/usc/42/12111.md?p=6-A).

- (c) **Authority of covered entity—** A [covered entity](/usc/42/12111.md?p=2)—
  - (1) may prohibit the [illegal use of drugs](/usc/42/12111.md?p=6-A) and the use of alcohol at the workplace by all [employees](/usc/42/12111.md?p=4);
  - (2) may require that [employees](/usc/42/12111.md?p=4) shall not be under the influence of alcohol or be engaging in the [illegal use of drugs](/usc/42/12111.md?p=6-A) at the workplace;
  - (3) may require that [employees](/usc/42/12111.md?p=4) behave in conformance with the requirements established under [chapter 81](/usc/41/chstIV-ch81.md) of title 41;
  - (4) may hold an [employee](/usc/42/12111.md?p=4) who engages in the [illegal use of drugs](/usc/42/12111.md?p=6-A) or who is an alcoholic to the same qualification [standards](/usc/42/1320d.md?p=7) for employment or job performance and behavior that such entity holds other [employees](/usc/42/12111.md?p=4), even if any unsatisfactory performance or behavior is related to the [drug](/usc/42/12111.md?p=6-B) use or alcoholism of such [employee](/usc/42/12111.md?p=4); and
  - (5) may, with respect to Federal regulations regarding alcohol and the [illegal use of drugs](/usc/42/12111.md?p=6-A), require that—
    - (A) [employees](/usc/42/12111.md?p=4) comply with the [standards](/usc/42/1320d.md?p=7) established in such regulations of the Department of Defense, if the [employees](/usc/42/12111.md?p=4) of the [covered entity](/usc/42/12111.md?p=2) are employed in an industry subject to such regulations, including complying with regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of [employees](/usc/42/12111.md?p=4) of the [covered entity](/usc/42/12111.md?p=2) who are employed in such positions (as defined in the regulations of the Department of Defense);
    - (B) [employees](/usc/42/12111.md?p=4) comply with the [standards](/usc/42/1320d.md?p=7) established in such regulations of the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1), if the [employees](/usc/42/12111.md?p=4) of the [covered entity](/usc/42/12111.md?p=2) are employed in an industry subject to such regulations, including complying with regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of [employees](/usc/42/12111.md?p=4) of the [covered entity](/usc/42/12111.md?p=2) who are employed in such positions (as defined in the regulations of the Nuclear Regulatory [Commission](/usc/42/2000ff.md?p=1)); and
    - (C) [employees](/usc/42/12111.md?p=4) comply with the [standards](/usc/42/1320d.md?p=7) established in such regulations of the Department of Transportation, if the [employees](/usc/42/12111.md?p=4) of the [covered entity](/usc/42/12111.md?p=2) are employed in a transportation industry subject to such regulations, including complying with such regulations (if any) that apply to employment in sensitive positions in such an industry, in the case of [employees](/usc/42/12111.md?p=4) of the [covered entity](/usc/42/12111.md?p=2) who are employed in such positions (as defined in the regulations of the Department of Transportation).
- (d) **Drug testing—**
  - (1) **In general—** For purposes of this subchapter, a test to determine the [illegal use of drugs](/usc/42/12111.md?p=6-A) shall not be considered a medical examination.
  - (2) **Construction—** Nothing in this subchapter shall be construed to encourage, prohibit, or authorize the conducting of [drug](/usc/42/12111.md?p=6-B) testing for the [illegal use of drugs](/usc/42/12111.md?p=6-A) by job applicants or [employees](/usc/42/12111.md?p=4) or making employment decisions based on such test results.
- (e) **Transportation employees—** Nothing in this subchapter shall be construed to encourage, prohibit, restrict, or authorize the otherwise lawful exercise by entities subject to the jurisdiction of the Department of Transportation of authority to—
  - (1) test [employees](/usc/42/12111.md?p=4) of such entities in, and applicants for, positions involving safety-sensitive duties for the [illegal use of drugs](/usc/42/12111.md?p=6-A) and for on-duty impairment by alcohol; and
  - (2) [remove](/usc/42/9601.md?p=23) such [persons](/usc/42/1320a–7k.md?p=d-4-C-i) who test positive for [illegal use of drugs](/usc/42/12111.md?p=6-A) and on-duty impairment by alcohol pursuant to [paragraph (1)](#e-1) from safety-sensitive duties in implementing [subsection (c)](#c).