Disability Discrimination

In 2011 the United States Census Bureau reported that approximately 36 million people in the United States were affected by some form of disability. That is approximately 12% of the U.S. population. In 1990, Congress passed the Americans with Disabilities Act to help those people and protect them from discrimination. Title I of the Americans with Disabilities Act requires employers to make accommodations for persons with a disability. It also prohibits discrimination against persons with a disability and protects persons who complain of disability discrimination or who participate in bringing a formal claim of discrimination from retaliation.

Specifically, the ADA prohibits any employer with fifteen or more employees from discriminating against a “qualified individual with a disability” in regard to any term, condition or privilege of employment. A disability is defined as a physical or mental impairment that substantially limits one or more of an individual’s major life activities. It also includes having a record of such an impairment or being “regarded as” having such an impairment.

Historically, it was very difficult to prove that a person was “substantially limited in a major life activity.” This was because the phrase “major life activity” was defined very narrowly and was measured only in a persons’ mitigated state; in other words, in the condition the person was in after corrective measures like medication or the use of prosthesis, for example. In 2008, the ADA was amended to ease these harsh requirements. Now, with the exception of eyeglasses or contact lenses, the determination of who is disabled is decided before any corrective or mitigating measures are taken. In addition, the definition of major life activity has been expanded to include major bodily functions like those of the immune system, the digestive system, the reproductive system and the respiratory system. It also includes things like cell growth and the functions of the brain, bowl and bladder. In addition, there is now protection for those persons who once suffered from a disability but whose impairments are only episodic or are in remission.

As mentioned, if you are not disabled, you also have protection to the extent that your employer regards you as disabled. The 2008 amendments also helps here by removing the requirement that an employee prove the employer perceived him or her to be substantially limited in a major life activity. Instead, the law now defines “regarded as” referring to circumstances where an employer takes adverse action against a person based on an impairment so long as that impairment is not transitory or minor, meaning short in duration or otherwise insignificant.

The ADA requires that employers offer accommodations to persons who, because of a disability are unable to perform the essential functions of their job. Generally, an accommodation is any change in the work environment or in the way things are customarily done that would help a person perform their job and enjoy the same work opportunities as other employees. Requested accommodations must be provided unless they would cause the employer undue hardship. An undue hardship might include an unreasonable cost or excessive disruption to operations given the financial resources of the company and the nature of the business.

If you are disabled and believe you need an accommodation, it is your job to inform your employer of the disability and make a request for accommodation. It would be a good idea to go to your employer with several ideas that would help. This will trigger a duty on the part of your employer to engage in an interactive process or dialog with you in order to come up with something that is reasonable. Accommodations to consider are: changes to facilities to make them accessible; job restructuring; modified work schedules; reassignment to a vacant position; modifying equipment; providing interpreters; or extending leave for limited periods of time. That said an employer is not required to accommodate you in any manner you wish. Neither is an employer required to change an essential job duty, lower production standards or create a new position for you. You should also be aware that, if you reject a reasonable accommodation and cannot then perform the essential functions of your job, you will no longer be a qualified employee under the ADA and can be fired.

The ADA also prohibits discrimination against and harassment of anyone with a disability. Generally, persons are protected from discrimination in hiring, firing, pay, promotions, job assignments, benefits and any other term or condition of employment. Employees are also protected from harassment because of a disability so long as it can be shown that the harassment was unwelcome, was based on disability, was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment or that they suffered a tangible employment action as a result of a refusal to accept repetitive hostile conduct, and, finally, that there is a basis to hold the employer liable for the conduct. The proof of such a claim is similar to that for sexual harassment, which is another topic covered on this site.

The ADA also puts restrictions on medical inquiries. For instance, before a job offer is made, no questions can be asked about disability and no medical examinations are allowed. After a job offer is made, medical inquiries or medical examinations may be given provided they are given to all persons who are hired for the positions and provided that they are job related and consistent with business necessity. These restrictions protect even employees or applicants that are not disabled for employment. Whether an inquiry or an examination is job related or a business necessity is determined on a case by case basis. However, medical inquiries or examinations are generally appropriate where an employer reasonably believes that a medical condition will impair a worker’s ability to perform the essential functions of a job or the employee poses a direct threat to himself or others.

If employers are covered, then they can be forced to stop illegal practices, make accommodations or be liable for different forms of damages, including back pay or the amount of pay loss due to the discrimination, front pay or the amount of pay expected to be lost in the future, and compensatory and punitive damages. Employees can also recover attorneys’ fees and costs incurred in bringing the claims.

The ADA assigns the Equal Employment Opportunity Commission as the federal agency in charge of investigating claims of disability discrimination under the ACT. Therefore, employees are required to file charges of discrimination with the EEOC within a limited amount of time after learning of discrimination; in some cases, within as little as 180 days.

Although this is just an overview of disability discrimination, if you have concerns over such discrimination or have additional questions, we can help guide you and, if necessary, represent you before the EEOC or in Court. To further discuss your situation, you can call us toll free at (706) 769-4410, send us an e-mail, or fill out a consultation request form and we will contact as soon as possible.