When to Get an Employment Discrimination Lawyer for Disability Discrimination

If you have been fired, denied a job, or mistreated at work because of your disability, see a lawyer right away.

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The Americans with Disabilities Act (ADA) and similar state and local laws protect employees and applicants with disabilities from discrimination in employment. An employer may not discriminate in hiring, firing, promotions, benefits, training, or any other aspect of employment. The ADA also requires employers to provide reasonable accommodations for employees with disabilities. 

Who Is Protected

The ADA applies to employers with at least 15 employees. The ADA protects:

  • An employee with a disability. An employee with a physical or mental impairment that substantially limits a major life activity is protected by the ADA.
  • An employee with a history of disability. An employer can't discriminate against an employee because the employee used to have a disability or has a record of disability.
  • An employee whom the employer believes has a disability. This is true even if the employer is wrong, and the employee is not actually disabled. If the employer discriminates against an employee based on its incorrect belief that the employee has a disability, the employee is protected by the ADA.

What Is a Disability? 

A disability is a physical or mental impairment that substantially limits a major life activity. Major life activities include tasks that are basic to everyday life, such as walking, hearing, seeing, taking care of oneself, learning, or speaking. Major life activities also include major bodily functions, such as normal cell growth or the proper functioning of the neurological, endocrine, reproductive, or digestive system. 

Not every employee who has a disability is protected. An employee must be otherwise qualified for the position. This means both that the employee must have the necessary degrees, experience, education, and other prerequisites for the position, and that the employee must be able to perform the job's essential functions, with or without an accommodation. Essential functions are the central tasks associated with the position, not peripheral or inessential duties. For an office receptionist, the responsibility to lift a heavy box of paper in the copy room once or twice a month in order to keep the copier stocked would likely not qualify as an essential function. For a warehouse worker who spent most of every day loading and unloading heavy boxes, however, lifting likely would be an essential function of the job. 

Reasonable Accommodations

Employees and applicants with disabilities are entitled to reasonable accommodations to do their jobs. A reasonable accommodation is a change to the workplace, the job, or other aspects of a position that allow an employee with a disability to perform the essential functions. Reasonable accommodations include things like lowering the height of a desk to accommodate an employee in a wheelchair, making voice-activated software available to an employee with carpal tunnel syndrome or dyslexia, providing TTD telephone equipment to an employee with hearing loss, or providing a quiet office with a door that closes for an employee with attention deficit disorder (ADD). 

ADA Violations

If you have a disability under the ADA, you should contact a lawyer if you experience discrimination in employment. Here are some common forms this discrimination might take:

  • Refusing to offer reasonable accommodations in the application process. For example, an employer that requires applicants to take a typing test should make voice-activated software available to applicants with certain types of learning disabilities. (The employer isn't required to guess whether an applicant has such a disability, however; if you need an accommodation, you should ask for one.)
  • Refusing to consider applicants with disabilities. Some employers assume, incorrectly, that an applicant with a particular disability wouldn't be able to do the job. Employers are allowed to ask applicants whether they could perform the job's essential functions, and can even ask applicants to demonstrate how they would do so. 
  • Requiring applicants to take a medical exam before a job offer is on the table. The ADA prohibits employers from asking applicants to take a medical examination until the employer has made a conditional offer of employment. 
  • Refusing to discuss reasonable accommodations. If an employee needs a reasonable accommodation, it is up to the employee to ask for one. However, once the employee makes this request, the employer must engage in what the ADA calls a "flexible interactive process": essentially, a conversation with the employee to try to come up with an effective accommodation. Employers that refuse or ignore an employee's initial request have violated the law. 
  • Refusing to provide a reasonable accommodation. The law doesn't require employers to provide an accommodation that would create an undue burden: excessive expense or difficulty, considering the nature, size, and resources of the employer. However, some employers assume that accommodating an employee would be too costly, without doing any research. Although employers are not required to provide the exact accommodation an employee requests, they must work with the employee to come up with an effective solution. 
  • Singling out employees with disabilities for layoffs or other cuts. Especially in difficult economic times, employers who have to lay off employees or cut back hours may target employees with disabilities, believing that they are not as productive or cost-effective as other employees. Whenever an employer makes job decisions based on an employee's disability, that employer has violated the ADA. 
  • Allowing disability-based harassment. If coworkers tease, tell jokes about, or make fun of an employee's disability, that could constitute illegal harassment. 

If you are facing any of these problems at work or in the hiring process, or you believe you have been discriminated against because of your disability, you should talk to an experienced employment lawyer right away. To safeguard your right to sue, you will need to file a charge of discrimination with a government agency relatively quickly. A lawyer can help you decide whether your case is worth pursuing, try to negotiate with your employer to come up with a settlement, or help you take steps to protect your rights. 

by: , J.D.

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