When to Get a Disability Discrimination Attorney

Source: https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0

Do you believe your employer discriminated against you because of your disability? If you were fired because of a disability, denied a reasonable accommodation for your disability, or harassed at work because of your disability, you may want to talk to a disability discrimination lawyer to find out if you have a legal claim against your employer.

Here's what you need to know about your protections in the workplace and when you should consider hiring a disability discrimination attorney.

When Discrimination Is Illegal Under the ADA

The Americans with Disabilities Act (ADA) and similar state and local laws protect employees and job applicants with disabilities from discrimination in employment. Under the ADA, an employer can't discriminate against you 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. Unfortunately, not all employers comply with the law. If an employer has treated you unfairly because of your disability, you can fight back.

First, let's look at whether your situation is protected by the ADA.

What Disabilities Are Covered by the ADA?

Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity—tasks that are basic to everyday life, such as walking, hearing, seeing, learning, and speaking. Major life activities also include major bodily functions, such as normal cell growth or the proper functioning of bodily systems, such as your neurological or digestive system.

An employee doesn't necessarily need to have a current disability, however, to be protected by the ADA. The ADA protects workers in the following situations:

• An employee with an active disability. If you have a physical or mental impairment that substantially limits a major life activity, you're 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. Even if an employer is wrong in suspecting that an employee has a disability, the employee is protected by the ADA if the employer discriminates against them.

The ADA also protects you from employment discrimination as a job applicant.

Are All Employees Covered Under the ADA?

Not all employers are required to comply with the Americans with Disabilities Act. The ADA only applies to employers with at least 15 employees—including state and local governments.

And not every employee who has a disability is protected under the ADA. To be protected, you must also be otherwise qualified for the position—that is, you must:

• have the necessary qualifications for the job, including:
  
  • education and training
  • degrees and licensing, and
  • experience, and
• 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 extra duties you're assigned. If you can't perform the essential functions of a job even if your employer works with you to provide accommodations, your job won't be protected under the ADA.

What Are Reasonable Accommodations Under the ADA?

Employees and applicants with disabilities are entitled to accommodations to do their jobs, as log as they're within reason, given the circumstances. A reasonable accommodation is a change to the workplace, the job, or other aspects of a position that allows an employee with a disability to perform the essential functions of their job.

Reasonable accommodations could include things like:

• changing the height of a desk to accommodate an employee who uses a wheelchair
• offering TTD telephone equipment to an employee with hearing loss
• making voice-activated software available to an employee with carpal tunnel syndrome or dyslexia, or
• providing a quiet office with a door that closes for an employee with attention deficit hyperactivity disorder (ADHD).

As long as the accommodation you need to be able to do your job doesn't create an undue hardship for your employer, it's considered reasonable under the ADA. An accommodation could be an undue hardship if it's very difficult or costly, considering the employer's nature, size, and resources.

Accommodations that would disrupt the essential functions of the business could also create undue hardship.

What Are Some Examples of Disability Discrimination?

Disability discrimination in employment can take many forms. Here are some examples:

Refusing to offer reasonable accommodations in the application process. An employer that requires applicants to take a typing test should make voice-activated software available to applicants with certain types of learning disabilities so that they can dictate the test. (But the employer isn't required to guess whether an applicant has such a disability. 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 are able to 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 making a job offer. The ADA prohibits employers from asking applicants to undergo medical examinations until the employer has made a conditional offer of employment.

Refusing to discuss reasonable accommodations. If you need a reasonable accommodation as an employee, it's up to you to ask for one. But once you make such a request, your employer must engage in conversation with you to try to come up with an effective accommodation. The ADA calls this a "flexible interactive process." An employer that refuses or ignores an employee's initial request for accommodations has violated the law.

Refusing to provide a reasonable accommodation. Your employer isn't required to provide the exact accommodation you request. But your employer must work with you to come up with an effective solution. The ADA doesn't require your employer to take on undue hardship to accommodate you, but some employers assume, without doing any research, that accommodating an employee would be too costly.

Singling out employees with disabilities for layoffs or other cuts. Especially in difficult economic times, employers who have to lay off staff or cut back hours might target employees with disabilities, believing that they aren't 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. An employer that knowingly tolerates such harassment is violating the law.

Sometimes unfair treatment is more subtle, such as denying you a promotion because you were a short-term leave or assigning you shifts with lower commission rates. If you have a disability and you think your employer's violating your rights under the ADA, you should consider contacting a disability discrimination lawyer. An experienced employment lawyer knows what's allowed and what isn't. You may think an adverse employment action is illegal, but it might not violate the ADA.

When You Should Contact a Disability Discrimination Attorney

You should talk to a disability discrimination lawyer right away if:

• you're facing any of the above situations at work or in the hiring process, or
• you believe an employer has discriminated against you because of your disability.

A discrimination attorney will first help you decide whether your case is worth pursuing and will walk you through your options, such as sending your employer a letter, filing a charge of discrimination, and/or filing a lawsuit in court.

A good lawyer will walk you through the strengths and weaknesses of your case, the amount of damages you can recover if you win, and the expenses of going to trial. You and your lawyer can do a cost-benefit analysis to decide if it's worthwhile, given the likelihood of winning, of filing a claim or lawsuit.

To safeguard your right to take the employer to court, you'll need to file a charge of discrimination with a government agency relatively quickly. If you decide to move forward with hiring a discrimination lawyer, the attorney can:

• help you take steps to protect your rights
• try to negotiate with your employer to come up with a settlement
• file a discrimination charge and a discrimination lawsuit, if necessary, and
• gather evidence to support your discrimination claim.

Developing evidence before suing an employer is key to a successful discrimination claim. During the "discovery" stage of your lawsuit, your employment lawyer can subpoena important documents from your employer and hold depositions to interview witnesses.

How Much Does a Disability Discrimination Lawyer Cost?

Before you start shopping for a lawyer, you should know how lawyers charge for their services in disability discrimination cases. The most common fee arrangements for disability discrimination are hourly fees and contingency fees.

Hourly Fees for Discrimination Work

In an hourly fee arrangement, you pay the attorney a set amount for each hour of work the attorney does. Because attorney fees can run to hundreds of dollars an hour, this arrangement makes sense if you need only a limited amount of legal work for the attorney.

For example, if your employer has offered you a severance package and you want a lawyer to look it over and let you know whether it's fair, you would likely pay by the hour.

Or, if you want an attorney to review your situation and write a demand letter to your employer to negotiate a settlement, an hourly fee might make sense. Once you get beyond very limited amounts of time, however, a contingency fee arrangement is usually more cost-effective.

Contingency Fees for Discrimination Lawsuits

In a contingency fee set-up, your lawyer gets paid only if you win, and only out of what you get from your employer. For example, a contingency fee deal might state that your lawyer gets one-third of whatever money you win from your employer.

Some lawyers charge a higher percentage if they have to take your case to trial, which is very time-consuming. For instance, your fee arrangement might state that your lawyer gets 33% of your award if you settle up until 30 days before trial, at which point the percentage increases to 40%.

The benefit of a contingency fee arrangement is that you don't have to come up with thousands of dollars upfront to pay your lawyer, at a time when your job may be precarious or you may be unemployed. It also gives your lawyer a strong incentive to get you the highest damages award possible.

The drawback, of course, is that you will have to hand over a significant chunk of your winnings if your lawyer is successful.

Other Fee Issues to Cover in an Agreement

Typically, before you formally hire an attorney, you'll have to sign a contract (called a retainer agreement) that sets out the terms of your arrangement, including fees. Attorney fee arrangements can be very complex. Although the basics—hourly fees or contingency fee percentage— aren't hard to understand, there are a number of details you'll need to nail down with your lawyer.

Who Will Pay Other Costs?

Attorneys' fees aren't the only expense when you take legal action. Your lawyer may have to pay:

• copying costs
• fees to file a lawsuit
• stenographer fees, and
• fees for expert witnesses.

Your fee arrangement should state who pays these costs and when.

Typically, you will be responsible for these costs, but will you have to pay them up front? Or will the attorney front them and then collect them out of the money you're awarded?

How Are Awards for Statutory Attorneys' Fees Treated?

The ADA requires an employer who loses a lawsuit to pay the employee's attorneys' fees. (42 U.S.C. 12205.) You might expect that attorneys will just take this money as their fee and let you keep your entire damages award, but many attorneys handle this issue differently.

For example, the attorney's contingency fee percentage might be applied to the total of the award of the statutory attorneys' fees and your damages award. This issue should be addressed in your fee agreement.

No matter what fee agreement you reach, it should be in writing and signed by you and your attorney. When lawyers and clients have disputes with each other, they're most often about fees. To avoid problems down the road, make sure you understand the fee arrangement and get it in writing.

How Can I Find a Good Lawyer for Disability Discrimination?

The process of finding an attorney to take your case can seem overwhelming, especially if you live in a big city with many options to choose from. You might want to start with two sites that are also part of the Nolo family, Lawyers.com and Avvo.com, which provide free lawyer directories. These directories allow you to search by location and area of law, and they list detailed information about lawyers. You can visit www.lawyers.com/find-a-lawyer or www.avvo.com/find-a-lawyer to find out more.

Learn more about hiring an employment lawyer for help with disability discrimination.