A knowledgeable employment lawyer can help if you have suffered disability discrimination. Disability discrimination means treating individuals differently in employment because of their disability, perceived disability, or association with a disabled person. Whether a person’s disability is visible or not, treating that person differently or denying specific accommodations can be against the law.
What is disability discrimination or disability harassment?
Disability discrimination means treating individuals differently in employment because of their disability, perceived disability, or association with a disabled person. Some examples of disability discrimination may include:
- Discriminating based on physical or mental disability in various aspects of employment, including recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, layoff, leave, and all other employment-related activities.
- Harassing an employee based on his or her disability.
- Asking job applicants questions about their past or current medical conditions or requiring job applicants to take medical exams.
- Creating or maintaining a workplace that includes substantial physical barriers to the movement of people with physical disabilities.
- Refusing to provide reasonable accommodation to employees with physical or mental disability that would allow them to work.
If any of these things have happened to you on the job, you should contact an employment lawyer immediately.
What are some examples of disability discrimination?
Disability discrimination can occur in many ways. The most common types of disability discrimination are direct discrimination; failure to make reasonable adjustments; and harassment.
Direct Discrimination occurs when you are treated worse than someone else in a similar situation because of your disability. For example, a restaurant allows a family with a child who has cerebral palsy to eat in their outdoor seating area but not in their family room. The family with the disabled child is not given the same choices that other families have and likely has a case for direct discrimination.
If you have a known disability, your employer has a duty to make reasonable accommodations. For example, an employee with impaired mobility may need closer parking spot; however, the employer, knowing of this need, refuses to provide one. If it is found that this adjustment would have been reasonable to make, the employee may have a case for failure to make reasonable adjustments. What is reasonable is typically a matter for the person, or group of persons, who determines the facts in a legal proceeding like the judge or the jury.
Harassment occurs when someone treats, taunts, or antagonizes you in a way that makes you feel humiliated or offended. For example, if an employee is consistently teased and called names because of his or her disability there is likely a claim for harassment.
Which federal law(s) cover people with disabilities?
The Americans with Disabilities Amendments Act of 2010 (ADA). The ADA makes it illegal for private employers, state and local governments, employment agencies, and labor unions to discriminate against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other areas of employment. Sections of the ADA not relating to employment address discrimination by governmental agencies and in public accommodations.
The Rehabilitation Act of 1973 makes it illegal to discriminate on the basis of disability in programs conducted by Federal agencies, programs receiving Federal financial assistance, Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in the Americans with Disabilities Act.
These are the primary federal laws that apply to workplace discrimination, although there are many other federal laws that make it illegal to discriminate on the basis of disability. For example: the Air Carrier Access Act of 1986 prevents discrimination in provision of air transportation, the Architectural Barriers Act of 1968 requires that buildings and facilities, designed, constructed, altered, or leased with certain federal funds after September 1969 must be accessible to and usable by handicapped persons.
The Fair Housing Act prohibits discrimination in the sale, rental, and financing of housing based on disability, along with other minorities, and the Individuals with Disabilities Education Act ensures that students with disabilities are protected, and that all children with disabilities have available to them free appropriate public education. Because the laws of most states also prohibit disability discrimination in employment, you should contact an employment attorney for specific guidance.
Who is considered disabled under the law?
The ADA Amendments Act defines a person with a disability as a one who:
- Has an actual physical or mental impairment that substantially limits one or more major life activities of such an individual;
- Has a record of such an impairment; or who
- May not have a disability but are regarded as having such an impairment.
The ADA also prohibits discrimination against a person based on that person’s association with a person with a disability. Further, if an employee is claiming that the employer failed to make reasonable accommodations, the employee must have an actual disability or a record of that disability. The ADA Amendments Act changes the way these criteria should be interpreted.
How will the disability definition be interpreted under the law?
The ADA Amendments Act emphasizes that the definition of “disability” should be interpreted broadly.” The Act directs the EEOC to revise the portion of its regulation defining what constitutes a substantial limitation. The Act also expands the definition of “major life activities” to include:
- Activities previously recognized under the law, such as walking and seeing, as well as new ones, such a reading, bending and communicating.
- Major bodily functions, such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine and reproductive functions.”
In determining whether one has a disability, mitigating measures (if you are able to use medication to eliminate the limitations of the medical condition, or successfully use a prosthetic, hearing aid, glasses, or another assistive device) other than “ordinary eyeglasses or contact lenses” will not be considered. Mitigating measures are ones ability to use medication to eliminate the limitations of the medical condition, or successfully use a prosthetic, hearing aid, glasses, or other assistive device.
Even though an impairment may be occasional or in remission, it will be classified as a disability if, when active, it would substantially limit a significant life activity.
Suppose you are subjected to an action prohibited by the ADA, such as failure to hire, because of an impairment, which is either real or perceived. In that case, you will meet the “regarded as” definition of disability unless the impairment is minor and in transition.
Individuals covered only under the “regarded as” prong are not entitled to a reasonable accommodation under The Act. (For more information on this, see question 11).
Which employers are covered by the law?
Job discrimination against people with disabilities is illegal if practiced by:
- Private employers;
- State and local governments;
- Employment agencies;
- Labor organizations; or
- Labor-management committees.
The ADA applies to all employers, including state and local government employers, with 15 or more employees. Many states also have laws that make it illegal to discriminate based on disability. For more information, please see our page on the minimum number of employees needed to file a claim under your state law. Click here for more information on Coverage from the EEOC.
Can I be asked about my disability in a job interview?
If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. However, an employer can ask if you can perform the job duties with or without reasonable accommodation; an example of this is: this job requires you to stand outside for long hours or, must be able to lift 20 pounds. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation; you will perform the duties of the job.
Can I be forced to take a physical or medical exam?
It depends. You cannot be required by an employer to take a medical examination before you are offered a job. Following a job offer an employer can condition the job offer on your passing a required medical examination. This can only be done if all entering employees for that job category have to take the examination and the exam is job-related and consistent with the employer’s business needs.
(You cannot be singled out for an exam merely because you have, or your employer believes you have, a disability.)
However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer’s business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.
Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer’s business. However, your employer may conduct voluntary medical examinations that are part of an employee health program and may provide medical information required by State workers’ compensation laws to the agencies that administer such laws.
The results of all medical examinations must be kept confidential and maintained in separate medical files.
What is a “qualified person with a disability?”
If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things: (1) You must satisfy the employer’s requirements for the job, such as education, employment experience, skills or licenses, and (2) You also must be able to perform the essential functions of the job with or without reasonable accommodation.
What is an “essential job function?”
“Essential functions” are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer can refuse to hire you if you cannot perform these duties on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you, however, because your disability prevents you from performing duties that are not essential to the job. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.
What is an “impairment substantially limiting a major life activity?”
To have an “actual” disability (or to have a “record of” a disability) an individual must be (or have been) substantially limited in performing a major life activity as compared to most people in the general population. Consistent with the ADAAA, the final regulations adopt “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction include the following:
- An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
- The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.
- The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
- In keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.
- An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”
What is a “reasonable accommodation?”
If you are able to perform all of the essential functions of a job, except for those your disability prevents you from performing, the ADA and many state disability laws require that your employer provide you with a “reasonable accommodation.”
A “reasonable accommodation” is an adjustment or modification provided by an employer to allow you to enjoy equal employment opportunities as individuals without disabilities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. Reasonable accommodations may include:
- Making facilities accessible to persons with disabilities.
- Job restructuring, modifying work schedules, reassignment to vacant position;
- Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies and providing qualified readers or interpreters.
Some examples of reasonable accommodations specific to particular disabilities are:
- A deaf applicant may need a sign language interpreter during the job interview.
- An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
- A blind employee may need braille reading material.
An employer is not required to violate a seniority system that is a product of a collective bargaining agreement to accommodate a disabled employee. Nor is an employer required to lower quality or production standards to make an accommodation, or excuse violations of conduct rules necessary for the operation of an employer’s business. Nor is an employer obligated to provide personal use items such as glasses, hearing aids, or prostheses.
13. What if my employer thinks the accommodation would be too expensive?
An employer is not required to make an accommodation for a known disability if it would impose an “undue hardship” on the employer’s business. Undue hardship is defined as an accommodation requiring “significant difficulty or expense.” Some of the factors taken into account when analyzing whether there is an undue hardship include: the nature and cost of the accommodation, the financial resources of the employer (a large employer may be expected to accept greater expenses than a small family business), the nature of the business (including size, composition and structure of the workforce), and any accommodation costs already incurred in the workplace.
It is not easy for employers to prove that an accommodation is an undue hardship, as financial difficulty alone is not usually sufficient. Other sources of money for making accommodations may be available, including tax credits or deductions and vocational rehabilitation funds. The disabled employee’s willingness to pay for all or part of the costs also can be considered, although the disabled employee cannot be required to pay the costs of accommodation.
14. When is my employer required to give me an accommodation?
An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one. A request can be a statement in plain English; that you need an adjustment or change in the application process or at work for a reason related to a medical condition. The request does not have to include the terms “ADA” or “reasonable accommodation.” Also, the request does not have to be in writing, although your employer is then allowed to ask for something in writing to document the request. A family member, friend, health professional, rehabilitation counselor, labor union, or other representative also may request a reasonable accommodation on your behalf. For example, a doctor’s note indicating that an employee can work “with restrictions” is a request for a reasonable accommodation.
Once you have requested a reasonable accommodation, you and your employer should discuss your needs and identify the appropriate reasonable accommodation. The EEOC has clarified that an employer refusing accommodation because the request does not fall within the company’s policy, will not be a viable defense. The ADA refers to this as the “interactive process,” a formal way of saying that you and your employer should talk about the request for a reasonable accommodation, especially where your need for the accommodation may not be obvious. The EEOC has made it clear that the word “accommodation” simply means: doing things differently than are customary, and simply saying “no” does not constitute an interactive process. A conversation also helps where the employer may have questions about what type of accommodation might best help you apply for a job or perform the essential functions of a job. If you request, but cannot suggest, an appropriate accommodation, you and your employer should work together to identify one. There are also many public and private resources that can provide assistance without cost.
Where more than one accommodation would work, your employer is allowed to choose the one that is less costly or that is easier to provide. Your employer may also ask you for additional documentation describing your disability and why the requested accommodation is needed, especially when your disability or need for accommodation are not obvious.
The documentation required should be limited to a doctor’s note or other medical documents showing that you have a disability and need accommodation. Your employer should not require you to produce your entire medical or mental health history in order to receive accommodation for a specific disability.
The EEOC has been clear that any employer may deny a request when providing an accommodation imposes undue hardship on its operations or finances. What constitutes and undue hardship is determined on a case-by-case basis.
15. Is my employer required to modify the job facilities for me?
Yes, unless that modification would be an undue hardship for the employer. The requirement to provide reasonable accommodation covers all services, programs, and non-work facilities provided by the employer.
16. Can I be charged or paid a lower salary to cover the cost of the accommodation?
No. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions. If the cost of providing the needed accommodation would be an undue hardship for your employer, however, you must be given the choice of providing the accommodation yourself or paying for the portion of the accommodation that causes the undue hardship. For more information, see question 12 above.
17. What if I’m not disabled, but am treated like I have a disability?
The ADA also protects a person who is regarded (or treated) by an employer as if he or she has a substantially limiting impairment, even if he or she has no impairment or has only a minor impairment, particularly if the employer acts based on myths, fears, or stereotypes about a person’s medical condition. For example, an employer may not deny a job to someone who has a history of cancer because of a fear that the condition will recur and cause the employee to miss a lot of work.
18. What if I’m not disabled myself, but care for or live with a person with a disability?
You are protected by the ADA if you are discriminated against because of your relationship or association with an individual with a known disability. The reason the ADA prohibits discrimination based on relationship or association is to protect you from job-related discrimination based on unfounded assumptions that your relationship to a person with a disability would affect your job performance, and from actions caused by bias or misinformation concerning certain disabilities. For example, if you have a disabled spouse and apply for a job, the ADA would prevent you from being denied employment because of an employer’s unfounded assumption that you would use excessive leave to care for your spouse. The ADA also would protect you if you do volunteer work for people with AIDS, and as a result had a discriminatory employment action taken against you that was motivated by that relationship or association.
19. What if my employer does not know I am disabled? Am I protected?
An employer is required to accommodate only known disabilities. Therefore, it generally is your responsibility as a disabled employee to inform your employer that an accommodation is needed. If you think you will need a reasonable accommodation in order to participate in the application process or to perform essential job functions, you should inform the employer that an accommodation will be needed, so that you are protected by the ADA if you are not accommodated. Your employer is under an obligation to keep information about your disability that you disclose confidential. The ADA requires that the results of all medical examinations must be kept confidential and maintained in separate medical files.
20. Can I be prevented from working a certain job for health and safety reasons?
The ADA allows an employer to refuse to hire individuals who pose a “direct threat” to the health or safety of themselves or others. A direct threat means a “significant risk of substantial harm.” Employers have legitimate concerns about maintaining a safe workplace for all employees and members of the public. In some instances, the nature of a particular person’s disability may cause an unacceptable risk of harm from the employer’s perspective. The determination that there is a direct threat must be based on objective evidence and reasonable medical judgment regarding an individual’s present ability to perform essential functions of a job. It cannot be based on unfounded fears or generalizations. An employer cannot refuse to hire you because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.
21. Can my employer refuse to pay medical insurance coverage for my disability?
The ADA requires that an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees. Your employer cannot deny you coverage that is made available to other employees or impose additional costs or restrictions on you because you are disabled. Depending on the level of coverage, however, the offered coverage may or may not fully cover the medical needs you have as a result of your disability. The ADA also does not affect clauses contained in health insurance policies about pre-existing condition even though such clauses may adversely affect employees with disabilities more than other employees.
22. Can an employer establish specific attendance and leave policies?
An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation for a worker with a disability. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave. A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his or her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship. For more information, see our page on disability leave. A disabled employee may also be eligible for leave under the Family & Medical Leave Act. For more information, see our page on family/medical leave.
On May 9, 2016, the EEOC published a guide entitled Employer-Provided Leave and the Americans with Disabilities Act. The guide is broken into 6 key areas highlighting issues for employers to consider when employees need medical leaves of absence not covered by the FLMA. Under these guidelines, your employer must:
- Provide disabled employees with access to the same leave of absence rules as non-disabled employees;
- Consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer;
- Promptly engage in an “interactive process” with the employee, a discussion that focuses on the reasons for the leave, whether it’s blocked or intermittent, and its expected duration. The process may include confirming information from the employee’s health care provider, when an employee requests leave as a reasonable accommodation;
- Avoid unlawful policies. Policies that place a cap on leaves of absence, without consideration for modifications or extensions as reasonable accommodations, are unlawful under the ADA.;
- Avoid “100% Healed” policies. Policies which mandate that an employee be fully recovered before returning to work and are unlawful. Instead, consider reasonable accommodations that will enable an employee to return before they are fully recovered, this might include temporary transfer to a vacant position; and
- Consider undue hardship. Depending on the duration and frequency of the leave, and the impact on the employer’s business, a leave of absence might be an undue hardship that an employer need not offer. An open-ended, indefinite leave is always an undue hardship; other types of leave should be evaluated for undue hardship on a case-by-case basis.
23. What are my rights after becoming disabled or injured on the job?
Work-related injuries must be evaluated on a case-by-case basis to determine if a worker is protected by the ADA. Only injured workers who meet the ADA’s definition of an “individual with a disability” will be considered disabled under the law, regardless of whether they satisfy criteria for receiving benefits under workers’ compensation or other disability laws. An employee also must continue to be “qualified” (with or without reasonable accommodation) to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Also, many on-the-job injuries cause temporary impairments that heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers’ compensation or other disability benefits laws may not be protected by the ADA.
24. How does the ADA affect workers’ compensation programs?
An employer may not inquire into an applicant’s workers’ compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person’s workers’ compensation history if a medical inquiry or examination is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination. Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers’ compensation costs in the future.
However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.
An employer may also refuse to hire, or may fire, a person who knowingly provides a false answer to a legal inquiry about his or her condition or worker’s compensation history made after the offer of employment. It does not violate ADA confidentiality requirements for an employer to submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers’ compensation offices and “second injury” funds.
25. What are the remedies available to me?
Victims of disability discrimination can recover remedies to include:
- back pay
- reasonable accommodation
- front pay
- compensatory damages (emotional pain and suffering)
- punitive damages (damages to punish the employer)
- other actions that will make an individual “whole” (in the condition she or he would have been but for the discrimination)
Remedies also may include payment of:
- attorneys’ fees
- expert witness fees
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading.
The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case.