Job Discrimination Based on a History or Record of Disability

You may still be protected from disability discrimination even if you are no longer disabled.

The federal Americans with Disabilities Act (ADA) protects employees and applicants with disabilities from discrimination in the workplace. However, the ADA doesn’t protect only those who have a disability: It also protects those with a history or record of disability. Your employer cannot discriminate against you because you used to have a disability or have been diagnosed with a potentially disabling condition.

The ADA applies to companies that have at least 15 employees. If you work for such a company, you are protected from discrimination based on your disability, your history or record of disability, or your employer’s perception that you have a disability (even if it’s wrong).

History or Record of Disability

Discrimination based on a history or record of a disability happens when an employer makes job decisions based on the fact that you used to have a disability, or that your medical records show that you have a disability, even if it isn’t currently limiting your activities. Here are some examples:

  • Janelle injured her shoulder badly in a car accident. She was in a lot of pain and could hardly lift that arm above her head. This would likely qualify as a disability under the ADA: a physical impairment that substantially limits her ability to lift things and care for herself. However, if she had surgery that successfully repaired the damage, she might no longer have a disability. Her employer is prohibited from making decisions based on her previous injury or restrictions.
  • Tim had a heart attack. Afterwards, his doctor put him on medications to lower his cholesterol and blood pressure. Once Tim recovered fully, he had no work restrictions or lifestyle restrictions. His test results are the same as other healthy men his age. Although Tim’s heart attack was likely disabling when it happened, it no longer is. Yet, Tim is still protected by the ADA. His employer can’t fire him simply because he had a heart attack or has a history of heart disease, for example.
And if you are applying for a job, as long as you can perform the essential functions of the position, a prospective employer cannot reject you because you have a history of disability or a record of a disabling medical condition—that would be discriminatory.

Discrimination Based on Disability History

Often, employers that discriminate based on somone's disability history are making assumptions about how that history might affect an employee later. For instance, going back to the example above, if Tim’s manager decides not to promote Tim to a more stressful position because she’s worried that Tim might have another heart attack, that would be discriminatory. Similarly, if Janelle’s boss fired her because he was worried that she would injure herself again and would need time off work, that would also be discriminatory.

Sometimes, employers assume that employees with a history of disability will be more costly to insure, more likely to need workers’ compensation, or more likely to have a poor attendance record than other employees. Regardless of the reasons, it is illegal for an employer to treat you differently because you had a medical condition that limited you in the past.

What Counts as a Disability Under the ADA

Congress has defined “disability” broadly in the Americans with Disabilities Act, to include any physical or mental impairment that substantially limits a major life activity. Here’s what these terms mean:

  • A physical impairment is a condition, disorder, anatomical loss, or cosmetic disfigurement that affects the body’s functioning, from cancer to diabetes, epilepsy, or a back or neck injury. A mental impairment is any psychological or mental disorder, like a learning disability, mental illness, or organic brain syndrome. Conditions or traits (like hair color or being left-handed) don’t count.
  • Major life activities are activities that are essentially important to daily life, such as walking, seeing, hearing, breathing, learning, working, sleeping, and caring for yourself. Major bodily functions, like proper cell growth or the proper working of your immune, endocrine, digestive, reproductive, or neurological system, are also covered. This means that the ADA covers serious conditions that are not yet (or not currently) outwardly debilitating.
  • An impairment can be substantially limiting even if you can still perform major life activities. If the condition, manner, and duration of your ability to perform major life activities is restricted, you are substantially limited. For example, if you can walk only with significant pain, only for a short time, only very slowly, or only with the assistance of a walker, your ability to walk is substantially limited. Also, if your condition is episodic or in remission, it still counts as a disability if it limits your major life activities when it is active.

If You Are Facing Discrimination

If you think your employer may be treating you differently because of your disability history, or you think you weren't because of your history of disability, you should talk to a disability discrimination attorney right away. An attorney can help you figure out what to do and, if you are still employed, how best to protect your job while asserting your rights. An attorney can help you try to negotiate with your employer or, if you’ve lost your job or your employer is unwilling to talk, an attorney can help you file a claim of discrimination to protect your legal rights.

If you want to take action, don’t wait. There are fairly short time limits (as short as six months, in some states) to file a claim of discrimination with a government agency. (You have to file such a claim if you want to sue your employer for disability discrimination.) An employer can help you sort through your options and decide how to proceed.

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