Disability Discrimination

Federal and state law prohibits discrimination against an employee with disability at every stage of employment.

According to law, an individual with disability is a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment. Generally, disability discrimination occurs when an employer uses a different yardstick for the employee with disability, perceived disability, or association with an individual with a disability, in regard to hiring, promotion, health coverage, job assignment, training, leaves, wages, benefits, compensation, etc.

Americans with Disabilities Act (ADA)

This act prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

The basic provision of the ADA prohibits discrimination against qualified disabled persons (including those with deafness, cancer, AIDS, or learning disability) by requiring employers to make reasonable accommodation for those who can perform the essential functions of the job, unless that accommodation would cause the employer an undue hardship.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

• Making existing facilities used by employees readily accessible to, and usable by, persons with disabilities
• Job restructuring
• Modifying work schedules
• Reassignment to a vacant position
• Acquiring or modifying equipment or devices
• Adjusting or modifying examinations, training materials, or policies
• Providing qualified readers or interpreters

An applicant cannot be asked questions about the existence, nature or severity of the disability, but may be asked about his/her ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all the entering employees in similar jobs. Medical examinations of employees must be job-related and uniformly applied to all employees and consistent with the employer's business needs.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability, for filing a discrimination charge, or for testifying or participating in any way in an investigation, proceeding or litigation under the ADA.

Who is covered

All state and local government employers and private sector employers with at least 15 employees. Unions having at least 15 members and employment agencies are also covered.

The Equal Employment Opportunity Commission (EEOC) has the authority to investigate complaints and file lawsuits under the ADA. Individuals may also file lawsuits in either federal or state court, alleging violations of the ADA, after exhausting the administrative process.

The Rehabilitation Act

The Rehabilitation Act bars discrimination against qualified individuals with disabilities. The Act covers executive branch agencies of the federal government, the postal service, federal government contractors, and sub-contractors with federal contracts over $2,500 or federal financial assistance. It defines a disability as "a physical or mental impairment that substantially limits one or more major life activities.” Major life activities are defined as the ability to perform functions such as walking, seeing, hearing, speaking, breathing, learning, working, or taking care of oneself.

It is illegal to discriminate on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in the Americans with Disabilities Act.

The law does not protect employees who cannot work because of total disability. The law covers only those employees with disabilities who are capable of continuing to work, if the employer provides reasonable accommodations.

The job-related accommodations that must be provided to the employee with disability include:

• Restructuring or modifying work schedules
• Offering part-time employment
• Permitting the employee to work at home
• Reassigning an individual to a vacant position
• Providing readers or interpreters for blind or deaf persons
• Acquiring or altering equipment or devices
• Making existing facilities readily accessible to the disabled
• Adjusting marginal job requirements
• Allowing flexibility in arrival and departure times for people who require special vehicles for transportation, or who are confined to the wheelchair.

Remedies available include:

• back pay,
• front pay,
• hiring,
• promotion,
• reinstatement,
• reasonable accommodation, or other actions that will make an individual "whole" (in the condition he/she would have been in, but for the discrimination).

Remedies also may include:

• payment of attorney's fees,
• expert witness fees,
• court costs.

EEOC guidelines covering certain conditions:

• The employer can refuse the employee with a disability, if he/she would be a direct threat to the health or safety of other workers or customers.
• Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA's restrictions on medicalexaminations.
• Employers may hold individuals who are illegally using drugs, and individuals with alcoholism, to the same standards of performance as other employees.
• The employee with disability should have equal access to insurance benefits provided to other employees, regardless of his/her disability.