Under the Americans with Disabilities Act, discrimination in the workplace based on a person’s disability or medical condition is prohibited. Disability discrimination occurs when a qualified employee or job applicant is:
– Treated unfavorably because they have a disability.
– Treated less favorably because they have a history of a disability (such as depression) or a physical or mental impairment.
– Discriminated against based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because his wife has a disability.
Definition Of Disability
Not everyone with a medical condition is protected from discrimination. In order to be protected, a person must be qualified for the job AND have a disability as defined by the law.
– A person can show they have a disability in one of three ways:
– A person has a disability if they have a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, learning, or operation of a major bodily function).
– A person has a disability if they have a history of a disability or illness (such as cancer that is in remission).
– A person has a disability if they are subject to an adverse employment action and their employer acted in belief that they have a physical or mental impairment.
The Basics of Discrimination Under the ADA
– Employers cannot discriminate regarding any aspect of employment, including hiring, firing, compensation, job assignments, promotions, layoffs, training, benefits – like healthcare or leave, or any other term or condition of employment
Scenario: Amy, an employee at ABC, Inc. discloses to her employer that she has recently been diagnosed with multiple sclerosis. As a result, her employer, out of fear that she’ll cost the company insurance plan too much money decides to reduce her hours to part-time, so she’ll no longer qualify for the benefit.
– An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without reasonable accommodation. However, the law places strict limits on employers’ ability to ask job applicants disability-related questions, force a medical exam, or require them to specifically describe a disability.
Scenario: Beth goes to a job interview and mentions she can perform all aspects of the job, with reasonable accommodations. The employer requires Beth to describe the specifics of her illness and they ultimately decide not to give Beth the job even though she’s the best candidate because they presume she’ll need a lot of time off from work and they do not want to arrange the accommodations.
Note: After a job is offered to an applicant, the ADA allows an employer to condition the job offer on the applicant answering certain disability-related questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the same questions or take the same exam.
– It is illegal to harass or make offensive remarks about a person’s disability an applicant or employee because he or she has a disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). An employer can be liable whether the harasser is the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Scenario: Cathy has an eating disorder. Cathy’s manager knows she has an eating disorder, but he makes offensive remarks in the open floorplan office about people with anorexia. He also makes daily comments on what Cathy chooses to eat, to the point that Cathy doesn’t have lunch at work anymore.
Reasonable Accommodation
The ADA requires an employer to provide reasonable accommodations to employees and job applicants with a disability, unless doing so would cause significant difficulty or expense (“undue hardship”) for the employer.
A reasonable accommodation is any change in the work environment (or standard business process) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of the job.
For example:
– Installing wheelchair accessible ramps
– Purchasing a braille capable computer
– Allowing a flexible work schedule
Undue hardship for an employer is not just financial difficulty, but also that which is unduly extensive or disruptive, or that would fundamentally alter the nature or operation of the business or position. The level of hardship is considered in light of the employer’s size, financial resources, and business needs.
For example, it will likely be unreasonable to expect a small business employer with low yearly revenue and only one job opening to hire a second employee to share in some tasks that the first employee cannot perform.
Clearly, disability discrimination violations are highly monitored and strictly enforced by the Equal Employment Opportunity Commission. Additionally, in Arizona, the attorney general’s office has a Civil Rights Division (ACRD) that enforces employment discrimination laws within the state.
Failing to adhere to the ADA (which includes avoiding direct and indirect discrimination, providing reasonable accommodations, and maintaining employee confidentiality) can have costly consequences. It is important to work with a knowledgeable employment law attorney to ensure your company policies are in compliance with the Americans with Disabilities Act and other applicable laws.
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This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact request@counxel.com or (480) 744-6621 to request specific information for your situation.
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