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).
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:
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.
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:
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.