Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act or the Rehabilitation Act treats an employee or applicant unfavorably because she has a disability.
Disability discrimination also occurs when an employer treats an applicant or employee less favorably because he/she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he/she does not have such an impairment).
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.
Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The protections are mostly the same.
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Additionally, it is illegal to harass an applicant or employee because he/she has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he/she does not have such an impairment).
Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
reasonable ACCOMMODATION & Undue Hardship
The law requires an employer to provide a reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
While the federal anti-discrimination laws don’t require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA.
Definition of Disability
Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
- A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, learning, or working).
- A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
- A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Disability & Medical Exams During Employment Application & Interview Stage
The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
Disability & Medical Exams After A Job Offer for Employment
After a job is offered to an applicant, the law allows an employer to 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.
Disability & Medical Exams For Persons Who Have Started Working As Employees
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
The Americans With Disabilities Act of 1990
Passed by Congress in 1990, the Americans with Disabilities Act (ADA) is the nation’s first comprehensive civil rights law addressing the needs of people with disabilities, prohibiting discrimination in employment, public services, public accommodations, and telecommunications. The Equal Employment Opportunity Commission (EEOC) was given enforcement authority for Title I of the Act, the employment discrimination provisions. Congress provided that Title I would not take effect for two years in order to allow the Commission time to develop regulations and technical assistance, time to conduct comprehensive public education programs on the new disability discrimination law, and time for employers to adjust to the new requirements.
EEOC met this new challenge well in advance of the law’s effective date. The Commission conducted 62 public meetings around the country with representatives from disability discrimination rights and employer organizations to receive their input in developing regulations for the ADA. Comprehensive regulations and an interpretive appendix were issued in July l991, one year before the effective date of the Act’s employment discrimination provisions; between 1991 and 1992, the Commission issued a Technical Assistance Manual which provided practical guidance for employers and persons with disabilities, and developed an intensive ADA training program for EEOC staff.
The complexity of issues arising under the ADA required developing a series of policy guidelines designed to clarify and interpret the provisions of the law. Between 1993 and 1999, the EEOC issued eight enforcement guidelines which have provided interpretations on key ADA issues, including pre-employment inquiries and medical examinations, workers’ compensation benefits, psychiatric conditions, the meaning of the term “qualified,” and the requirement that employers provide reasonable accommodations. In 1995, a comprehensive chapter of the EEOC’s Compliance Manual provided a definition of the term “disability.”
As always, litigation also became an important vehicle for the Commission to establish its policy positions on the provisions of the ADA. From the Act’s effective date through July 2, 2000, the Commission has filed 375 ADA lawsuits, successfully resolving more than 91 percent of the lawsuits filed in district court either by settlement or jury verdict. The Commission also has participated as amicus curiae in 87 cases on issues arising from or connected to the ADA, the Rehabilitation Act (an act that protects federal employees and others connected with the Federal Government from workplace discrimination and which was the precursor of the ADA), or other state disability discrimination laws.
Some of the Commission’s ADA litigation demonstrate the widespread, and oftentimes overt, discrimination faced by individuals with disabilities. Examples of Commission initiated ADA litigation include:
- A 1993 consent decree resolving a claim alleging disability discrimination (distinctions in a union’s health insurance plan which limited lifetime benefits for AIDS to $50,000, while providing benefits up to $500,000 for other catastrophic conditions). In this case, the defendant company and union agreed to pay $100,000 for medical expenses and damages, and to remove the limit on AIDS coverage retroactive to the ADA’s effective date.
- A 1993 jury verdict finding a security firm had discharged its executive director because he had terminal brain cancer, although he had continued to perform the essential functions of his job. On behalf of the charging party, EEOC secured $220,000 in back pay, compensatory relief, and punitive damages.
- A 1997 jury verdict finding that Wal-Mart had participated in disability discrimination by refusing to hire an individual who used a wheelchair because of his disability. As part of its evidence, EEOC introduced a videotape showing the charging party performing many physically challenging activities during his daily life. The jury awarded $8,399 in back pay, $75,000 in compensatory damages, and $3.5 million in punitive damages (later reduced to $225,000 because of the statutory cap on punitive damages).
- A 1999 jury verdict against Chuck E. Cheese pizza chain, where the Commission alleged that the defendant discriminatorily discharged an employee because of his mental retardation. Although the employee was able to work productively with the aid of a job coach, and the local manager and staff supported his retention, the employee was fired by a regional manager who stated that the company did not employ “those kind of people.” Ultimately, EEOC won a jury award of $10,000 in back pay, $70,000 in compensatory damages for emotional distress, and a record $13 million in punitive damages (later reduced to $230,000 because of the statutory cap on punitive damages).
(Source : U.S. Equal Employment Opportunity Commission)
As outlined above, the California state Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA), enforced by the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) respectively, provide protection for employees who have physical or mental disabilities. The FEHA and the ADA prohibit discrimination and/or harassment by employers or coworkers on the basis of an individual’s disability. They also require employers to provide reasonable accommodations to disabled individuals, unless it would cause the employer “undue hardship.”
Disability is broadly defined under the FEHA as any physical or mental impairment that limits a major life activity. Under both the FEHA and ADA, employers are prevented from refusing to hire, promote or provide benefits to individuals because of a disability. They are also prevented from firing an employee on the basis of disability.
Under the ADA’s guidelines, “reasonable accommodations” include but are not limited to:
- Making the facilities accessible for disabled employees
- Acquiring or modifying existing equipment for use by disabled employees
- Modification of work schedules
- Adjusting company policies
- Allowing time off for medical treatment
Disability discrimination and accommodations cases against employers can become extremely complex, specifically in regards to providing reasonable accommodations to employees and undue hardship. Because of the complexity of these cases, you need an experienced disability discrimination lawyer fighting for you.
Disability discrimination attorney Edward Antonino can help you fight disability discrimination in the workplace.
If you believe that you have been the victim of disability discrimination in the workplace because you suffer from either a physical or mental disability, or if you are a disabled employee and your employer is refusing to provide you with a reasonable accommodation, or your employer is retaliating against you because of your physical or mental disability, then you need an experienced disability discrimination attorney to fight for you.
Please call (818) 995-9477 today for a FREE and confidential consultation with an experienced Los Angeles Disability Discrimination Attorney to fight for you.