Disability Discrimination in the Workplace and ADA Violations

The Americans with Disabilities Act (“ADA”) and state law makes it illegal for an employer to discriminate against a qualified individual with a disability in job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; or other terms, conditions, and privileges of employment, because of the individual’s disability. Federal and state law also prohibit disability harassment and retaliation against you for complaining about disability discrimination.

The technical definition of a person with a disability is someone who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment.

Therefore, temporary conditions or conditions that, although serious, don’t substantially limit any of your major life activities are not covered. For example, blindness is a medical condition that substantially limits the major life activity of seeing. Thus, blindness is a covered disability. However, if you have a temporarily disabling condition, such as a bad back or broken leg, you are probably not considered disabled under the ADA. Remember, the definition of a disability under the ADA is a legal one, not a medical one.

The ADA has four main components: (1) requirements for maintaining medical records and requiring medical testing, (2) an employer must reasonably accommodate disabilities, (3) an employer may not discriminate against an individual with a disability, and (4) an employer may not retaliate against someone who opposes discrimination of participates in protected activity.

Medical Records and Testing

If an employer has your medical records, the employer must maintain them separately from other employment records and generally should keep them confidential. The ADA requirement is similar to the requirements of HIPAA, which applies to medical providers.

An employer is limited in how it may use medical records or conduct medical testing. The two primary rules are:

1.   Employers may not ask job applicants about medical information or require a physical examination prior to offering employment. After employment is offered, an employer can only ask for a medical examination if it is required of all employees holding similar jobs.

2.   If you are turned down for work based on the results of a medical examination, the employer must prove that it is physically impossible for you to do the work required.

Reasonable Accommodations

An employer must provide a reasonable accommodation if it would allow you to perform the essential functions of your job. The following are some of the things that may be a reasonable accommodation:

1.   Making existing facilities used by employees readily accessible to and usable by persons with disabilities.

2.   Job restructuring, modifying work schedules, reassignment to a vacant position;

3.   Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is expected to work with you to find the best solution for you and the company that would allow you to do your job.

Sometimes taking leave is a reasonable accommodation. The Family Medical Leave Act (FMLA) gives many employees up to twelve weeks of unpaid leave. This leave could be taken incrementally, including in the form of half days, coming to work later than normal, or leaving earlier. Taken a few hours at a time, twelve weeks can stretch out for a long time. An employee whose FMLA leave request is denied may have both a violation of the FMLA and the ADA.

Discrimination

An employer cannot discriminate against an employee because of the employee’s disability. This includes discrimination in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

The ADA also protects against discrimination based on stereotypes and unfounded concerns about an individual’s medical condition and medical history. Thus, even if you are not actually disabled, but you have a record or history of a disability, your employer cannot take an adverse action against you. Typically, this involves an employee who has disclosed a history of a serious illness or disability to the employer, but is still able to do his or her job. The employer may not discriminate against such an individual, even if that individual is no longer disabled.

Additionally, even if you aren’t actually disabled, and you don’t have a history or record of disability, you may still be protected by the ADA if your employer regards or perceives you as being disabled. In some cases (such as an employee with HIV or AIDS), the employee may have a condition that does not affect him or her (or other employees) in any way, but due to unfounded fears or stereotypes held by the employer, the employer believes that the employee is disabled. If such an employer were to take an adverse action against such an employee based on this perception, that could violate the ADA.

Discrimination can take the form of obvious bias, or can also take the form of improper stereotypes. Regardless of the form it take, employment discrimination based on disability is illegal

Retaliation

It is against the law for an employer to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

If you believe you are the victim of discrimination or harassment in the workplace as a result of your religious beliefs, contact Vantage Legal today for a free consultation.

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