Am I A Victim of Disability Discrimination?
Contact Chip Clark and Goodin Abernathy about your Disability questions – because we’re PASSIONATE about protecting our clients’ rights.
Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, or the Rehabilitation Act, treats a qualified individual with a disability who is an employee or applicant unfavorably because he or she has a disability.
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Disability discrimination also occurs when an employer treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not temporary (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.
What Qualifies as a Disability
Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability as follows:
• A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, sleeping, or learning).
• A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
• A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Disability Discrimination & Harassment
It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Disability Discrimination & Reasonable Accommodation
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
Disability Discrimination & Reasonable Accommodation & Undue Hardship
An employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide. The employer is required to engage in an interactive dialogue (two-way conversation) with the employee to discuss the need for the accommodation. The employer is allowed to request specific information from your health care providers to determine if an accommodation can reasonably be made.
Disability & Medical Exams During Employment Application & Interview Stage
The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
Disability & Medical Exams For Persons Who Have Started Working As Employees
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
If you believe you have been a victim of disability discrimination, or have a question about your rights as a disabled employee, please call us for a free case evaluation.
GOODIN l ABERNATHY LLP