Disability Discrimination

Disability rights advocates fought for years to ensure equal treatment of those with physical and mental impairments. Since the passage of the Americans with Disabilities Act (ADA) in 1990, discrimination laws have protected the disabled in a variety of settings, including employment. Today, federal, state and local laws prohibit discrimination. These laws are complicated, but an experienced disability rights attorney can help employers and employees understand their rights and obligations.

Federal, state and local laws protect disabled workers. These laws vary with regard to which employers are covered, the definition of disability and the process for obtaining relief when discrimination occurs.

A person may qualify under the ADA if he or she has a condition that seriously limits a major life activity.  The condition may be a physical or mental impairment.  Major life activities include seeing, hearing, eating, sleeping, walking, standing or concentrating.  In addition, this encompasses major bodily functions such as those involving the immune, digestive, respiratory, circulatory, neurological or other systems in the body.  Mental illness and substance abuse also qualify as disabilities.  A disability must be long-standing or permanent.  Discrimination based on a previous disability or a perceived disability may also included under the law.

However, the ADA only protects employees who are capable of performing the major duties of their job with or without any additional help (or accommodations).  In order to make this determination, the EEOC will look to various factors, including written job descriptions and the amount of time spent on the task at issue.

Employers have an obligation to provide a reasonable accommodation to allow a disabled employee to perform his or her job.  However, an employee does not have a right to his or her preferred accommodation.  A reasonable accommodation may include adjusting work schedules, changing job duties, providing or altering equipment and making the workplace more accessible to the disabled.

Employers are not required to provide a reasonable accommodation if it would cause an undue hardship.  This may include changes that are too expensive, disruptive, dangerous or impossible to implement (e.g. due to physical office space constraints, etc.).  The EEOC will consider the cost and financial resources of the employer, the nature of the business and the employer’s size.

Importantly, the employer has a duty to initiate a conversation if it has learned either directly or indirectly that an employee requires an accommodation. Employers should engage in a Cooperative Dialogue with the employee regarding possible accommodations.

Employers have a defense if the employee cannot perform the essential functions of the job, even with the reasonable accommodation.  However, the burden of proof is on the employer.

As noted previously, discrimination can be intentional mistreatment or the result of a policy that has a disparate impact on those with disabilities. Where a disabled employee has been intentionally treated differently, discrimination may be difficult to prove since direct evidence is seldom available. However, circumstantial evidence can be used. Typically, employees can point to similarly situated employees without a disability that received more favorable treatment than the disabled employee. Alternatively, the disabled employee can show he or she was passed over for a raise or promotion which then went to a less-qualified, non-disabled employee.

For disparate impact, the employee must demonstrate that the policy or practice has the practical effect of discriminating against the disabled. However, the employer has a defense that the policy is job-related and consistent with business necessity.

Best practice is for both parties to consult an attorney as soon as a claim arises to discuss what evidence is needed to present the strongest case.

Discrimination claims can be filed with the EEOC within 300 days of the last discriminatory act. Employees cannot sue in court without first going to the EEOC and obtaining a “Notice of Right to Sue.” Thereafter, a litigant can bring an action in federal or state court within 90 days of the date the notice was received.

As with all types of discrimination, employers should consult an attorney regarding instituting written workplace anti-discrimination policies, employee training and clear investigation and complaint procedures to help prevent and address any claims.  Employees who believe they may be the victim of discrimination should speak to an attorney about the best option for enforcing their rights.