Discrimination Disability Discrimination Law under the Americans with Disabilities Act

                  Published on May 23rd, 2018 | by Dack Varss


                  Disability Discrimination Law and the Americans with Disabilities Act

                  The Americans with Disabilities Act (“ADA”) prohibits discrimination against people on the basis of disability in employment, government, public accommodation, commercial facilities, transportation, and telecommunications. The legislation is one of the more broadly powerful laws, covering private employers with 15 or more employees, state and local governments, employment agencies, and labor unions.

                  The ADA was introduced as a bill to the House and Senate in 1988 upon recommendation by the National Council on Disability in 1986 in order to combat discrimination against people with disabilities in a range of contexts including the workplace. On July 26, 1990, President George H. W. Bush signed into law the ADA, remarking:

                  “Every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.”

                  Despite this, employment rates and opportunities for people with disabilities remains an issue. In June 2017, the Department of Labor released statistics that show that employment participation for people with disabilities is just 20%, while people without disabilities enjoy labor participation rates of 68.9%. In the same year, there were 26,838 claims made to the Equal Employment Opportunity Commission (“EEOC”) regarding discrimination on the basis of disability.

                  As the major protective legislation for people with disabilities, understanding the ADA is crucial towards understanding your rights if you have suffered discrimination in the workplace.

                  Are you protected by the ADA?

                  To establish a case of employment discrimination under the ADA, a person will need to prove three elements.

                  1. That your impairment meets the legal definition of a disability under the ADA.
                  2. You are qualified and able to perform the functions essential to the job with or without reasonable accommodations.
                  3. You have suffered an adverse employment action by the employer’s actions or inactions.

                  What is a “disability” under the ADA?

                  What is considered a disability is not simply anyone who suffers a medical condition. Disability follows the legal definition from the ADA142 U.S.C. § 12102. and means one of three things.

                  1. You are a person that has a condition that substantially limits a major life activity. A life activity here means an activity such as walking, talking, seeing, hearing, thinking and so on.
                  2. You are a person that has a history of a disability, such as cancer which is in remission a recovery from some mental diseases.
                  3. You are believed to have or treated as if you have a physical or mental impairment that is not transitory or minor in nature. Transitory means a lasting condition of more than 6 months.

                  If you have established that a disability meets the legal definition in the ADA, it is then important to show that the disability is to the degree required by the ADA. There are two factors to consider.

                  Firstly, a disability must be one that makes a person unable to work in a broad range of jobs, not only a specific role. It is not sufficient that the particular disability does not enable you to work in one particular job. For example, a person who is short-sighted who is disqualified from operating precise machinery is not necessarily disabled as being nearsighted does not disqualify them from a broad range of roles.

                  Secondly, if you have a disability that is covered by the ADA and its impact on your work can be reduced or eliminated by corrective device (such as special equipment) then the disability will not meet the standard required by the ADA.

                  However, whether or not an employee is considered disabled under the ADA is decided on a case-by-case basis. In a large majority of cases, disabilities such as paraplegia, blindness, deafness and learning disabilities will be sufficient for the law to apply.

                  Are drug addiction and alcoholism protected by the ADA?

                  Both substance and alcohol abuse are covered under the ADA, however protection is only provided in certain circumstances.

                  Generally, alcoholism is considered a disability for the purpose of the law and will be given the same opportunity for protection as other disabilities provided that you can show that the alcoholism substantially limits a life activity2Alexander v. Wash. Metro. Area Transit Auth., 2016 BL 202763, D.C. Cir., No. 15-7039, 6/24/16. In addition, the law offers protection against discrimination for recovered alcoholics and substance abusers when they are able to continue to perform their job duties.

                  However for current illegal substance abuse the ADA specifically does not provide protection for these users342 U.S.C. § 12114(a). It is not illegal for your employer to request drug tests and terminate employees for illegal drug use or alcohol dependency that interferes with the performance of the job.

                  Other people covered by the ADA

                  It is also important to note that the ADA protects people under the association provision442 U.S.C. § 12112(b)(4). from discrimination based on their relationship with a person who has a disability, even when they do not have a disability themselves. For instance, it is not legal to discriminate against a person because their family member is a person who is unable to walk. This provision can even apply where the related person is not a family member.

                  Are you qualified to perform the essential job functions?

                  The second element of establishing a case of employment discrimination under the ADA is whether you are qualified to perform the essential job functions of a role. Essential job functions here means the fundamental duties of a role that a person absolutely must be able to do. The EEOC will consider:

                  • The employer’s judgement as to whether a particular job function is essential, including showing a written prepared job description. This is one of the most significant aspects, as an employer is not obliged to change a job into another for an applicant5Bagwell v. Morgan County Commission, 11th Cir., No. 15-15274 (Jan. 18, 2017)
                  • Whether the position exists for the purpose of a person performing that particular function.
                  • The number of other employees who could perform that function or whether the function could be distributed elsewhere.
                  • The level of skill and expertise required to perform the job function.

                  If you are able to perform an essential job function with a reasonable accommodation, your employer is required to make the accommodation on your behalf. A reasonable accommodation is a change by your employer in the way the work can done in order to help a person with a disability to apply for or perform a job. Examples of reasonable accommodations include:

                  • Providing specialized equipment so that the job can be performed by a person with a disability.
                  • Changing a job or its duties.
                  • Providing a flexible work schedule or additional unpaid leave for medical appointments.

                  If you are not able to perform an essential job function, even with a reasonable accommodation, you will not be protected under the ADA.

                  Exceptions to the requirement of providing reasonable accommodations

                  There are two notable exceptions apply to the requirement that employers provide reasonable accommodations.

                  Firstly, the an employer will not have to provide a reasonable accommodation if the providing for the person with a disability will cause undue hardship. Undue hardship in the context of the ADA means a change that would be significantly difficult or expensive.

                  It is not enough that the accommodation has some cost in order to be classified as undue hardship. Your employer can choose from a range of available accommodations and they do not necessarily have to choose the most expensive. However, an employer will need to show that the accommodation is too expensive or difficult to provide in the context of the organization’s size, finances and nature of business in order to establish undue hardship.

                  The second exception to this requirement is that an employer needs only to accommodate disabilities of which they are aware. The law generally holds that it is your responsibility to inform your employer6Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008). unless your employer is aware of your disability and it is obvious that a reasonable accommodation is needed to avoid workplace problems7Barnett v. U.S. Air, Inc, 228 F.3d 1105, 1112 (9th Cir. 2000) This means that in most circumstances, you must request the reasonable accommodation before they will be obligated to provide an accommodation.

                  What is an adverse action by an employer under the ADA?

                  The final element in founding an action under the ADA is that you have suffered an adverse employment action by an employer’s actions or inactions.

                  For the purposes of the ADA, an adverse employment action is an action that causes a material change in the conditions of employment8Brown v. Cox, 286 F.3d 1040, 1045 (8th Cir. 2002) The range of employment aspects covered is broad, including hiring and firing, promotions, training, benefits or any other term of employment.

                  Examples of treatment that would be prohibited as discrimination under the ADA included:

                  • Failure to provide reasonable accomodations.
                  • Setting workplace standards that make it harder for employees with disabilities to compete.
                  • Classifying jobs for people with disabilities so that they are more limited in opportunities than roles for people without disabilities.

                  To establish this element, you must show a specific link between the disability and your employer’s adverse action.

                  If an employer retaliates against you for asserting your rights

                  The ADA also prohibits an employer from retaliating against you for asserting your rights under the ADA. In order to prove retaliation, you must show three things:

                  1. You participated in protected activity. Protected activity means an activity such as asserting your rights, opposing unlawful discrimination and being active in discrimination proceedings.
                  2. You have suffered an adverse employment action, which includes actions or inactions such as being fired, receiving poor evaluations, being denied a promotion, or anything that would deter someone from reporting a violation under ADA.
                  3. You can show a causal link between the adverse employment action and your participation in that protected activity. In some cases it is sufficient to show that you suffered the adverse action very closely after you engaged in a protected activity. It is important to note here that the reason for your employer’s actions must be your participation in a protected activity and not actions your employer would have undertaken anyway.

                  If you have suffered discrimination in the workplace

                  If you believe you may have been the victim of discrimination, seek the advice of an attorney and file a charge with the EEOC at any of the Commission’s offices located in your city or state. There are time limits on applications, so generally you must lodge your charge within 180 days of the discrimination experienced.

                  The Commission will then conduct an investigation into the charge and attempt to resolve the issue through conciliation. If the Commission agrees that discrimination occured, you will be entitled to a remedy to compensate for the discriminatory act. This may include:

                  • Reasonable accommodations
                  • Being hired or reinstated into a role
                  • Promotions
                  • Any lost wages or benefits to the time of the trial or into the future
                  • Compensatory or punitive damages
                  • Attorney’s fees

                  Because these situations often involve a power and resource imbalance between the employee and employer, consider consulting a specialist employment attorney before filing your charge.

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                  About the Author

                  Dack Varss is a labor and employment attorney specializing in legal matters from rest and meal break violations, discrimination claims, harassment claims, and other violations of the rights of employees. Mr. Varss is tenacious and passionate about the lawful and dignified treatment of employees in the workplace.

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