11 Things You Need to Know About Disability Discrimination at WorkNovember 2, 2015
Discrimination in the workplace based on disability is potentially unlawful. Yet, it happens far more frequently than one may expect. That’s why it’s important to know your rights and to understand both the federal law and state laws.
Here are 11 things you need to know about disability discrimination at work:
1. The Americans with Disabilities Act
The Americans with Disability Act was passed in 1990 and prohibits discrimination against those with disabilities in employment, schools, transportation and in all places open to the public. Title I of the act aims to give people with disabilities equal employment opportunities as those without. The law states that reasonable accommodation must be provided to accommodate employees with disabilities. Reasonable accommodation is “any change to a job, the work environment, or the way things are usually done that allows an individual with a disability to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace,” according to the Office of Personal Management.
It is also potentially unlawful for an employer to discriminate against someone for having a relationship or association with a disabled individual or for having a prior disability.
2. Who is covered as a qualified worker with a disability under the law
A qualified worker with a disability is one who can perform the essential functions of a job, with or without reasonable accommodation, and that meets legitimate qualifications, skill, education and experience for the position that they are applying for.
3. Not all employers are bound by the Americans with disabilities act
A private employer is only bound to the Americans with Disabilities Act if it has more than 15 employees. Public entities are governed by a set of different rules under Title II, Title I of the ADA and section 504 of the Rehabilitation Act of 1973 and Federal employees are covered under the Rehabilitation Act of 1973.
4. What reasonable accommodation means
Under the Americans with Disabilities Act, an employer is required to provide reasonable accommodation to an employee with a disability, so long as it does not cause “significant difficulty or expense for the employer.”
This means that in order to accommodate a disabled worker, employers must change the work environment in whatever way necessary so that the employee can perform the functions of their job. Examples according to the EEOC include, providing a reader or interpreter for someone who is blind or hearing impaired and making the workplace wheelchair accessible.
5. What constitutes undue hardship
Undue hardship occurs when an employer would have to provide accommodation at an extreme expense to their business in light of an employer’s size, financial resources, and business needs. If there are multiple options for accommodation, the employer can choose the option that works best for them in accordance with the above considerations. The employer does not have to provide the exact accommodations requested by the disabled employee, so long as the accommodations they do choose are sufficient to allow the employee to perform the essential duties of their job.
6. When harassment is potentially unlawful and when it’s not
While it is not potentially unlawful for an employer or coworker to “tease” or make offhand comments that are not of a serious nature, it is potentially unlawful for an employer or coworker to make frequent harassing remarks that in turn create a hostile work environment. It is also potentially unlawful illegal if the harassment results in an adverse employment decision.
7. What is Ok for employers to ask and what is not
Before an offer has been extended an employer is not allowed to ask a prospective employee any medical related questions, including about their disability or the nature of their disability. An employer is also not legally allowed to ask an employee to undergo a medical exam.
After an offer has been extended an employer can condition the job offer “on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam,” according to the EEOC.
8. What constitutes a covered impairment
In order for an employee to be covered under the law, their disability must prohibit or significantly reduce their ability to perform one or more major life activities as compared to others. A covered impairment under the Americans with Disabilities Act includes both physical and mental and can be permanent, temporary or of an indefinite duration. However, non-chronic minor conditions such as the flu or a broken limb would generally not be covered.
9. The statute of limitations on disability discrimination cases is short
Statute of limitations varies by state from 180-300 days. That’s the time you have from the date of the last incident of discrimination to file a lawsuit. In NH and MA you have 300 days to file because there are specific disability discrimination laws in these states. In states that do not have disability discrimination laws, you only have 180 days to file. Because of this statute it is important to speak with a lawyer as soon as possible to determine your rights and case viability.
10. How you can prove disability discrimination
Biased comments that are job related and continuous can serve as evidence. The best form of proof, however, typically comes when you can show that you were treated differently than other employees in similar roles and under similar circumstances. Or if you can show that disabled employees as a whole are being unfairly targeted, you have strong evidence of discrimination.
11. What to do if you think you are facing disability Discrimination in the Workplace
If you believe you are being discriminated against based on disability you should take the following steps in the below order:
- Speak with a lawyer. Because the statue of limitations is so short on discrimination cases, a lawyer can help you quickly determine how viable your case is and help you determine next steps.
- Try discussing the issue with the person inflicting the discrimination, if you feel comfortable doing so. If this is not possible, try bringing the issue up with your boss or the next person in the chain of command. If nothing changes, or none of these avenues are available, move on to the next step.
- File an internal complaint as outlined by your company’s policy on discrimination, if such a policy exists. By filing an internal complaint you either force your company to act or have it documented that your company failed to act should you decide to bring a formal lawsuit.
- File a complaint of discrimination with the EEOC. If nothing results in your internal complaint, the next step is to file with the EEOC. This is mandatory before filing a formal lawsuit.
- File a lawsuit. Hopefully you have a lawyer by this point but if you don’t you must hire one. The law can be tricky to navigate without experience and the deadlines for filing a lawsuit after receiving the go ahead from the EEOC are short.
Dealing with discrimination in the workplace can be very difficult and is not something that anyone should have to tolerate. If you believe you are being unfairly discriminated against, it is important that you contact a lawyer.
At Sherman Law, we specialize in New Hampshire and Massachusetts employment law. We work with clients to identify their objectives and strategize the best financial approach to achieve them. If you believe you have a discrimination case, contact Sherman Law for a free initial consultation.