If you are facing workplace discrimination because of a disability, you should take action right away. The Americans with Disabilities Act (ADA) protects applicants and employees from disability discrimination in every aspect of employment, from hiring to benefits to termination. Many states and even local governments have similar laws, and some apply to smaller employers. (The ADA applies only to companies that have at least 15 employees).
This article explains the steps to take if you find you believe you are being discriminated against. If you feel in over your head, or you aren't sure what to do at any point, consider consulting with an experienced employment lawyer.
Your first step in dealing with disability discrimination is to point it out – and assert your rights. Even though the ADA has already celebrated its 20th birthday, a surprisingly large number of employers don't understand the law or know what it requires. And, your employer might not fully understand how your disability does (or does not) affect you. The good news is that your employer may want to do the right thing, once it gets up to speed on the law.
For example, let's say you were denied a promotion to a position that requires significant driving, because your employer believes that your use of a wheelchair will interfere with your ability to travel by car. You might meet with your manager and point out that you are perfectly capable of driving significant distances, as long as your vehicle is outfitted with special equipment. Because you have a disability, you are entitled to a reasonable accommodation. Your employer could either allow you to use your own outfitted vehicle, reimbursing you for its use, or could modify a company car or van to meet your needs. Either way, because you are capable of doing the job with a reasonable accommodation, your employer should reconsider you for the promotion. (For detailed information on your rights under the ADA, including reasonable accommodations, see our Americans with Disabilities Act page.)
Your employer may be willing to reconsider its decision once you have explained your rights. If not, however, it's time to complain more formally. Filing a complaint within your company serves two important purposes:
If your employer doesn't handle your complaint to your satisfaction, you should file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or your state's antidiscrimination agency. You must file a charge to preserve your right to sue for disability discrimination: If you don't file a charge before filing your lawyer, the judge will throw your case out.
There are time limits for filing a charge. In states that have their own law prohibiting disability discrimination, you must file your charge within 300 days of the discriminatory action or decision. In states without a disability discrimination law, you must file within 180 days.
Once you file your charge, the agency will process it. Assuming you have met the procedural requirements, the agency will likely ask your employer to respond to the charge, and then conduct an investigation. The agency may also offer to mediate or settle the case.
When the agency has finished processing a charge, it typically issues a "right-to-sue" letter, which gives you the right to proceed in court with your claims. (You can also request a right-to-sue letter from the EEOC while your charge is still being processed.) The agency may make a finding that no discrimination occurred, or it may issue a finding that the law was violated. Either way, however, you will typically receive a right-to-sue letter. Even though the agency can litigate claims on its own, this is a very rare step.
Once you get your right-to-sue letter, you are free to file a lawsuit against your employer. If you haven't already retained a lawyer, now is the time to do so. The deadlines for filing a lawsuit are very short, and you must meet a number of procedural requirements to avoid having your case thrown out. An experienced employment lawyer can help you evaluate your claims and decide whether it makes sense to sue. If you do file a lawsuit, you'll need a lawyer's help to prepare the necessary paperwork, gather evidence, push your employer to settle, question witnesses, and ultimately argue your case in court.