What is disability discrimination?
Individuals living with disabilities often face significant challenges and should not be subjected to additional challenges, such as workplace discrimination. Unfortunately, it is common for individuals with disabilities to face discrimination, harassment, or retaliation at work.
Disability discrimination occurs when an employer or organization covered by Title I of the Americans with Disabilities Act (“ADA”) or the Rehabilitation Act of 1973, treats a qualified employee or applicant unfairly due to their disability. The ADA protects private, state, and local employees, while the Rehabilitation Act of 1973 protects federal employees. If you or someone you know has experienced disability discrimination at work, it is essential to seek expert legal advice to understand your rights.
What is a disability?
The ADA adopts a broad definition of disability to maximize coverage within legal parameters. However, not every medical condition will be automatically protected from disability discrimination. Under the ADA, a person is considered disabled if the individual has one of the following:
- A physical or mental condition that substantially limits one or more major life activities.
- A history or record of a disability.
- A physical or mental impairment, unless the impairment is considered temporary—lasting or expected to last six months or less.
Substantially limits: While the “substantially limits” can be interpreted extensively and does not set a high threshold, every medical condition will not meet this standard. For example, a mild allergy to dust is not a substantially limiting condition.
A medical condition does not have to be long-term, permanent, or severe to be considered substantially limiting. Some examples of disabilities covered under the ADA include, but are not limited to:
- Deafness or Hearing Loss
- Human Immunodeficiency Virus (HIV)
- Diabetes
- Cancer
- Epilepsy
- Post-Traumatic Stress Disorder (PTSD)
- Mobility disabilities (e.g. wheelchair, walker, or cane)
- Intellectual Disabilities
Major life activities: Major life activities can be interpreted as activities done on a daily basis, which includes the internal processes within your own body. Major life activities include:
- Basic bodily actions such as eating, sleeping, speaking, and breathing.
- Movements, including walking, standing, lifting, and bending.
- Cognitive processes like thinking and concentrating.
- Sensory abilities such as hearing, seeing, and touch.
- Various tasks including working, reading, learning, and communication.
- The functioning of essential bodily systems, such as circulation, respiration, musculoskeletal or endocrine function, and other organ activities.
In which aspects are individuals protected from disability discrimination?
Title I of the ADA prohibits disability discrimination in any aspect of employment. This includes hiring, firing, promotions, training, compensation, benefits, layoffs, and any other job-related decision.
Here are a few examples of disability discrimination in the workplace:
- An employer denies you a job opportunity or promotion due to your disability, despite your qualifications.
- An employer fails to provide reasonable accommodations.
- An employer insists that you reveal or discuss your disability even though you have not requested accommodations.
- Individuals in the workplace engage in discriminatory conduct, including derogatory comments and gestures, targeting your disability.
- An automated system employed by a potential employer automatically rejects or downgrades a job application based on an applicant’s disability or accommodation request.
- An automated system assesses job applicants based on biometric data, such as facial expressions or movements, in a manner that disproportionately disadvantages individuals with disabilities.
Reasonable accommodation and undue hardship
Reasonable accommodations are adjustments to the job or work environment that would allow an individual an equal opportunity to succeed. Employers in the private sector and public sector (federal, state, and local governments) must provide reasonable accommodations to job applicants or employees when they request job modifications.
Some examples of reasonable accommodations include, but are not limited to:
- Providing a workplace that is accessible for wheelchair users.
- Arranging for a reader or interpreter for a person who has a hearing impairment or is blind.
- Changing the employee’s schedule.
- Allowing an employee to work remotely.
- Providing leave for disability related symptoms or treatment
- Reassigning an employee to a vacant position that is compatible with their abilities and limitations.
Employers are required to provide reasonable accommodations, but not if it would cause undue hardship on the employer. Undue hardship refers to an accommodation that would be excessively difficult or costly when to an employer; however, an employer cannot deny an accommodation solely because of financial restrictions. While an employer is not obligated to grant the specific accommodations requested by an employee or job applicant, they must offer effective reasonable accommodations. If there are multiple accommodations that would effectively address the disability-related needs, the employer has the discretion to choose which accommodations to implement.
What is harassment due to disability?
It is unlawful to harass an applicant or employee based on a current or past disability, or association with an individual with a disability. Offensive comments or behavior related to a person’s disability are also considered harassment. Harassment can originate from various sources, including supervisors, coworkers, and non-employees such as clients or customers. Harassment is considered unlawful when it happens so frequently or severely that it creates a hostile or offensive work environment, or when it leads to negative employment consequences, such as termination or demotion.
What if my employer retaliates against me ?
The ADA protects applicants and employees against retaliation for filing a complaint on disability discrimination or harassment. Employers are not allowed to intimidate, threaten, or obstruct an applicant’s or employee’s ability to exercise their rights. This includes engaging in “protected activity,” which refers to any action taken by an employee to assert their rights under employment discrimination laws. The ADA protects individuals who assist others in addressing discrimination or harassment from retaliation.
If you believe you have been subjected to disability discrimination or harassment, seek legal counsel to determine your options. Our firm has over 10 years of experience representing clients in employment law cases, including federal employees and non-federal employees in California.
