The Americans with Disabilities Act of 1990 (ADA) makes it illegal for an employer to harass an employee or treat him or her differently in the terms and conditions of employment because of the employee's disability, perceived disability, or association with a person with a disability. The law prohibits biased treatment in compensation, benefits, job classification, hiring, firing, and promotions. It also stipulates that employers must provide a "reasonable accommodation" to disabled employees or applicants, if doing so will enable the individual to work without causing an undue hardship for the employer. The Americans with Disabilities Act applies to employers with fifteen or more employees. Many states have laws that expand anti-discrimination protections to cover smaller employers. Please see our chart of Information by State for more detailed information.
Unlike most discrimination claims, in which the victim's membership in the protected class is rarely in question, for disability discrimination claims, an employee must first prove that he or she qualifies as "disabled" under the law before it can be established whether disability discrimination has taken place. Unfortunately, the definition of "disability" set forth by the ADA is often too narrow (but often saved by more generous state laws, which often require a much lower level of impairment and generally have a broader definition of disability).
Under the ADA, a disabled individual is one who:
- Is physically or mentally impaired to a degree that limits substantially one or more major life functions, or
- has an impairment that is documented, or
- is perceived as having such an impairment.
"Major life functions" are functions that the average person performs with little to no degree of difficulty - for example, walking, seeing, breathing, hearing, speaking, moving, working, or learning. The ADA does not consider as disabled individuals with minor, temporary conditions or injuries such as a broken leg or an infection. However, the "major life functions" stipulation does not limit disability only to people who are blind, deaf, or in wheelchairs, either. People with severe arthritis or carpel tunnel syndrome, mental illnesses such as depression or bipolar disorder, and chronic diseases such as epilepsy, diabetes, or HIV may all be protected from discrimination under the ADA.
Having documentation of such an impairment could refer, for example, to a person with a history of mental illness, or someone who has cancer that is in remission.
An employee who is perceived and treated as though he or she has a substantially limiting disability, even if that perception is inaccurate, is also protected under the ADA. This may include, for example, an individual with disfiguring scars who is fully qualified and capable of performing a job, but is not hired because the employer worries that coworkers will react negatively.
To be protected under the ADA, employees must be "qualified individuals with a disability." This means that the employee or applicant satisfies the education, skills, experience, and other requirements related to the job necessary for the position and is able to perform all essential job duties, either with or without a reasonable degree of accommodation.
A "reasonable accommodation" is any adjustment or modification an employer makes so that an employee who is otherwise qualified can fulfill all the requirements of his or her job.
Reasonable accommodation might include making existing facilities in the workplace more easily accessible to individuals with disabilities; modifying work schedules, for example to allow an employee with diabetes to monitor her insulin levels; providing additional unpaid leave; acquiring or modifying job equipment; modifying or adjusting testing procedures or training materials or policies for testing or training; and providing readers or interpreters who meet relevant qualifications.
Accommodations reasonable in nature may be required for the job application process, performance of job functions, or to enable a disabled employee to benefit from working conditions and privileges related to employment that employees without disabilities enjoy. Production standards need not be lowered by the employer in order to make an accommodation. Employers generally are not expected to provide items for personal use such as hearing aids or eyeglasses.
A few examples of disability discrimination might include:
- If you are clinically depressed and request a brief medical leave to receive treatment; the leave is denied, despite the fact that the company has granted the leave requests of employees with physical ailments;
- If your coworkers routinely imitate your impaired manner of speaking, and your supervisor responds to your complaints by telling you to simply ignore them;
- If your arthritis makes it difficult for you to lift more than ten pounds, and the supermarket where you work refuses to grant the reasonable accommodation of a lifting restriction, despite the fact that they could easily transfer you to a cashier position that does not require lifting;
- If the business where you work fails to install ADA-compliant restroom facilities or handrails despite your repeated requests that they do so;
- If your supervisor is aware that you survived cancer and have been healthy and in remission for some time, and she justifies failing to promote you to a position for which you are qualified by saying, "I just wouldn't feel comfortable putting you under that kind of pressure."
Again, violations of state law are often easier to prove.
If you believe that you are or were the victim of disability discrimination, it is important to contact a knowledgeable employment attorney as soon as possible, as there may be serious time limit issues to your case. The attorneys at Joseph & Kirschenbaum LLP are committed advocates of employee rights with years of experience handling gender discrimination claims. Contact us to discuss the details of your case.