Employment Discrimination Based on Medical Conditions and Disabilities

Employees with disabilities and health issues sometimes experience discrimination in the workplace. Employees who understand their legal rights—and the steps they need to take to ensure employers respect those rights—can often avoid or limit the impact of this type of discrimination.

What Is Medical Discrimination in the Workplace?

Medical discrimination occurs when an employee experiences adverse treatment in the workplace due to a health condition or disability. Employers who engage in any of the following types of conduct have committed unlawful medical discrimination:

• refusing to hire an applicant due to a pre-existing condition
• choosing not to promote an employee with a health condition
• paying an employee less due to a medical condition
• harassing or tolerating harassment of an employee related to a health condition, or
• withholding health insurance or other benefits from an employee with a medical condition.

In some instances, an individual's health condition will impact their ability to perform the duties of their job. In such cases, an employer is permitted to make health-based personnel decisions if the individual can't perform their job's essential functions.

Federal Laws on Medical Discrimination

Three federal laws apply to an employee's health-related needs on the job:

• Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq.
• Rehabilitation Act of 1973 (Rehab Act), 29 U.S.C. § 701 et seq., and
• Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.

Although the primary purpose of those laws is to protect employees with health-related needs, they also contain some protections for employers.

Anti-Discrimination Laws on Medical and Disability Discrimination

The Americans with Disabilities Act protects private sector employees with disabilities from discrimination on the basis of their disability and applies to employers with 15 or more employees.

There is currently no federal law that prohibits smaller employers from discriminating against workers with disabilities. However, some states and municipalities do have laws in place that are similar to the ADA and apply to smaller employers. For information about those laws, contact your state's Department of Labor.

The Rehab Act protects employees of the federal government and provides them with protections that are nearly identical to those the ADA provides for private sector employees. The Rehab Act's protections apply regardless of how many employees a federal agency has.

Since the protections in the Rehab Act are almost identical to those in the ADA, references to the ADA in the remainder of this article also apply to the Rehab Act unless otherwise noted.

Under the ADA, a person is considered to have a disability if she has a physical or mental impairment that substantially limits a major life activity or a history of a disability, or is perceived to have a disability. The ADA does not define major life activity but does list examples including walking, talking, seeing, hearing, learning, thinking, communicating, and working.

The ADA's prohibition on disability discrimination by employers includes health issues or treatment related to that disability. An employer cannot refuse to hire, fire, or promote an employee solely due to disability or related health issues or treatment unless these issues prevent the employee from being able to perform the essential functions of his job with or without reasonable accommodations.

Reasonable Accommodations. As part of prohibiting discrimination, the ADA requires employers to grant reasonable accommodations (changes to a job or workplace) when necessary to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodations include:

• allowing schedule adjustments due to medical appointments
• frequent breaks due to disability-related fatigue
• changes in work hours, location, tasks or supervisors
• allowing an employee to be assisted by a job coach
• providing a sign language interpreter, and
• providing assistive software or equipment.

These are only a few examples. The number of possible accommodations is limited only by the amount of creativity on the part of the employee and employer. The ADA requires employers to conduct an individual inquiry into each accommodation request and engage in an interactive process with an employee to find an accommodation that works.

It may be helpful to contact the Department of Labor's Job Accommodation Network (JAN), www.askjan.org, if you need help identifying the accommodations which you may need.

Medical Discrimination and the Family and Medical Leave Act

Although the Family and Medical Leave Act is not technically an anti-discrimination law, it often helps people with disabilities who have health- or treatment-related needs that require them to take time off. The FMLA covers private sector employers with 50 or more employees as well as most federal agencies regardless of the number of employees.

The FMLA allows employees to take up to 12 weeks of unpaid leave in a 12-month period. During FMLA leave, employers are required to continue an employee's group health insurance under the same terms and conditions as if the employee had not taken leave.

The FMLA allows employees to take leave for a serious health condition that makes the employee unable to perform the essential functions of his job. Note that, although the ADA does not protect employees who are unable to perform the essential functions of their job due to a disability or related treatment, even with reasonable accommodations, these employees do have the option of taking unpaid FMLA leave.

What to Do If You've Experienced Medical Discrimination at Work

There are steps employees with disabilities can take to ensure their employers do not discriminate against them due to related health issues or treatment.

Decide Whether to Tell Your Employer

First, you must decide whether to share your disability with your employer. Deciding whether to tell your employer about your disability is a highly personal decision. Factors to consider include whether your disability is visible or otherwise apparent, whether you feel your employer is treating you differently due to your disability, and whether you need a disability-related accommodation or FMLA leave.

Of course, you must let your employer know you have a disability in order to request a reasonable accommodation under the ADA and provide documentation supporting that request. Similarly, you cannot request FMLA without at least letting your employer know you have a serious health condition. As a practical matter, if you have a disability, the documentation you provide for an FMLA leave request will generally alert your employer about that disability.

Understand Your Disability-Related Health Issues

Speak with your doctor(s) about your diagnosis, treatment needs, possible reasonable accommodations, frequency and duration of symptoms, and any other related issues. Obtaining as much information as possible will help you educate your employer about your disability and related needs.

How to File a Complaint If an Employer Discriminates Against You

Where to take your complaint depends on what law your employer violated.

ADA discrimination complaints against private sector employers can be filed with the U.S. Equal Employment Opportunity Commission (EEOC), http://www.eeoc.gov/. To be timely, those complaints must be filed within 180 days of the date the discrimination occurred.

Although that filing deadline is extended if the discrimination occurred in a state or city that has a law prohibiting discrimination on the same basis as the ADA, it is best to assume the 180 day deadline applies unless the EEOC or an attorney confirms an extended deadline applies to your claim. In contrast to other ADA issues, ADA employment discrimination issues cannot be filed in court until after the EEOC has reviewed the complaint.

Rehab Act discrimination complaints against federal employers can be filed with the Equal Employment Opportunity (EEO) office for that agency, not the EEOC. Generally, federal employees have 45 days from the date of discrimination to contact the EEO counselor at their agency. As with ADA employment issues, Rehab Act employment discrimination issues cannot be filed in court until after they have been processed by the appropriate EEO office.

FMLA complaints can be initially filed as a lawsuit in court or as a complaint with the Secretary of Labor. Employees can file a complaint with the Secretary of Labor by contacting any local office of the Department of Labor's Wage and Hour Division, http://www.dol.gov/whd/america2.htm.

Or, you can hire an attorney to help you file a lawsuit. Employees have two years from the date of the FMLA issue to file a lawsuit. That two-year deadline is not postponed or extended while a complaint is pending with the Secretary of Labor.

Contact an Employment Attorney

If you need assistance filing a disability-related EEOC, EEO, or FMLA complaint, it may be helpful to contact an attorney, a federal or state organization focused on your type of disability, or your state's Protection and Advocacy Agency, which can be located by contacting the National Disability Rights Network (NDRN).