Workplace Disability Discrimination: Bad for Workers, Illegal for Employers
Per the Centers for Disease Control and Prevention, 26% of the adult U.S. population lives with some kind of disability. This amounts to 61 million adults. If you are one of them, the Americans with Disabilities Act of 1990 and its two subsequent amendments, the Americans with Disabilities Act Amendment of 2008 and the Americans with Disabilities Amendments Act of 2010, protect your right to be free from discrimination when getting and keeping a job you are qualified to perform.
By definition, you have a disability if you have a physical or mental impairment that substantially limits one or more of your major life activities or major bodily functions. “Life activities” are defined as walking, seeing, bending and communicating. “Major bodily functions” are defined as your immune, digestive, respiratory, endocrine, circulatory and reproductive systems, as well as your bowel, bladder, cell growth and brain functions.
Not only do the above listed federal laws also protect you from harassment while on the job. In addition, these protections apply to you if you are a caregiver for someone who is disabled.
When you apply for a job, the person with whom you interview cannot ask you if you have a disability. Nor can they ask you about the nature or severity of any disability. This includes such things as the use of a wheelchair, a white cane, etc. They can ask you if you can perform the essential functions of the job for which you are applying, with or without accommodation. They can also ask you how you plan to do that, again with or without accommodation.
Once they offer you the job, but not before, they can require you to undergo and pass a medical examination as a condition of your employment. However, the company must also require the passing of such an examination for all other new hires for the same type of position. The exam must be job-related and necessary for the employer’s business needs.
Whatever information comes to light as a result of this medical exam must be kept confidential by the employer. Nor can your interviewer or anyone else in the human resources department withdraw the job offer based on your disability. That is, unless it precludes you from performing the job’s essential functions, with or without accommodation.
Workplace Disability Discrimination Examples
Unfortunately, workplace discrimination occurs in five distinct ways: direct, indirect, harassment, failure to make reasonable accommodations, and victimization.
Direct Disability Discrimination
An example would be your employer denying you a promotion based on nothing other than your disability or the fact that you care for a disabled person. Your employer may fear you might take too much time off work to care for him, her or yourself.
Another example would be denying you a promotion because they fear your cancer in remission might reassert itself.
Indirect Disability Discrimination
An example of this would be your employer positioning work areas in such a way that clients and other visitors can see only able-bodied employees.
Workplace harassment can take many forms, but if your employer allows your co-workers to comment on or joke about your disability, even though they do not do so to your face, this counts as workplace disability harassment. Another example is if anyone at work bullies you about your need for accommodations, your work performance, etc.
The ADA and its subsequent amendments require companies employing 15 or more people to make reasonable accommodations for disabled workers. It is your responsibility, however, to ask for any accommodation you need that your employer does not already provide. Common reasonable accommodations include the following:
- Access ramps to at least one, preferably more, doors to the building
- Elevators to upper floors in addition to stairs or escalators
- Wheelchair-accessible restrooms
- A designated disabled parking spot in the company parking facility or lot wide enough to allow for wheelchair access to and from the vehicle
- Large-print or Braille training manuals and computer programs, such as screen readers that make it easier for you to use a computer if you are visually impaired
- Sign language interpreters or closed captioning at meetings and events
- Permission to bring your service animal to work with you, regardless of your employer’s no-pets policy
Like harassment, victimization also comes in a variety of forms. Basically, it means that your employer penalizes you in some way for speaking out. Examples of victimization include retaliating against you for things such as your Workers’ Compensation claim or harassment complaint by means of verbal or written warnings, poor employee evaluations or termination. All of these can be considered adverse employment actions that the law prohibits.
What to Do If You Find Yourself Facing Workplace Disability Discrimination
Your first action after experiencing workplace disability discrimination should be to document it. This includes writing down the following:
- What happened
- The date it happened
- Who discriminated against you
- The names of any coworkers who saw the discriminatory act
- What, if anything, you did about it
- How it impacted your work
- How it made you feel
Take your complaint and your notes to the proper person, be that your supervisor, someone in human resources, or someone in the company’s management tier. Be sure to have a copy of your notes in case the person asks for the original.
Contact a Workplace Discrimination Lawyer
If the same thing happens again, or another type of discrimination occurs, and your employer fails to stop it, your next step is to talk with an experienced workplace discrimination attorney. They can evaluate your situation and determine whether or not you have a valid cause of action against your employer for discrimination against your disability.
If so, they will help you file a charge with the Equal Employment Opportunity Commission. You must do this prior to filing an actual lawsuit against your employer. Once the EEOC concludes its own investigation of your claim, it will give you a Notice of Right to Sue in federal or state court. You then have 90 days in which to file your suit.
Work With an Experienced Local Lawyer
Submit a request online today or call us at (866) 345-6784 to get in touch with an experienced workplace disability discrimination lawyer in your area.