Disability Discrimination in the Workplace in 2019
What is disability?
To understand disability discrimination, it’s important to define the term disability.
First and foremost, the law doesn’t protect everyone with a health/medical condition. To be considered disabled, you must have all of the following:
- A mental/physical condition which limits major life activities like walking, hearing, seeing, talking, and learning significantly.
- A history of disability i.e., cancer in remission
- A mental or physical impairment that isn’t transitory, lasting 6 months or less and minor even in the absence of such an impairment
What is disability discrimination?
Disability discrimination is defined under the ADA (Americans with Disabilities Act) and the Rehabilitation Act. If an employer or any other entity covered in the Rehabilitation Act and ADA as amended, treats qualified persons with disability (applicants or employees) unfavorably, such treatment qualifies as disability discrimination.
Employers are expected to offer reasonable accommodation to job applicants or employees with a disability unless accommodation causes significant expense or difficulty (undue hardship). Disability law also extends protections to persons in a relationship with persons with disability. For instance, it is illegal to be discriminated against because your husband/wife/child has a disability.
Disability discrimination in the workplace statistics
According to disability discrimination charges data over the past 20 years, most charges are dismissed because of administrative closures or no reasonable clause. This simply means most complainants fail to provide sufficient evidence to prove discrimination or meet procedural guidelines and requirements such as communicating accordingly with the EEOC. In 2016, 2017 and 2018, for instance, administrative closures and no reasonable clause accounted for 80.8%, 82.1%, and 81.6% respectively. Only 8.6%, 7.8% and 7.5% of all disability discrimination charges filed with the EEOC in 2016, 2017 and 2018 respectively ended in settlements.
Disability discrimination charge statistics highlight the importance of hiring a workplace discrimination attorney. Reasons for dismissing charges via administrative closures and no reasonable cause can be avoided if you have legal advice from the onset. Although the monetary benefits realized from disability discrimination charges in US workplaces may be higher than other classes of workplace discrimination at $131 million, $135.2 million and $136.5 million in 2016, 2017 and 2018 respectively, the benefits are bound to be higher if complainants seek legal help from workplace discrimination lawyers immediately when they face disability discrimination.
Disability discrimination laws in the US
There are two primary “pieces” of legislation on disability discrimination in workplaces in the US. They include:
- The ADAAA (Americans with Disabilities Amendment Act)
- The Rehabilitation Act
i. The ADAAA (Americans with Disabilities Amendment Act)
The ADA (Americans with Disabilities Act) was amended in 2008. As of 1st January 2009, the ADA was amended to accommodate broader definitions of disability. For instance, when pursuing a disability claim where an employer has failed to accommodate, the claim must be in line with the standards for actual or record of disability. What’s more; limitations from impairment don’t have to be significant or severe.
The Act has also extended major life activities to include major bodily function such as; immune system function, special sense organs & skin, normal cell growth, reproductive, neurological, respiratory, circulatory, lymphatic, cardiovascular, hemic and endocrine functions. What’s more; being substantially limited in one “key” life activity is enough to enjoy the protections of the amended ADA.
The positive effects of medication, therapy, behavioral modification, prosthesis, and hearing aids aren’t considered when determining if impairment limits major life activities substantially. Contact lenses and eyeglasses are notable exceptions to this rule. Episodic impairments such as depression, epilepsy, and multiple sclerosis are also considered as disabilities if they are substantially limiting when they are active.
ii. The Rehabilitation Act
The Rehabilitation Act stipulates guidelines on employment of persons with disabilities. The Act covers affirmative action program plans for hiring, placing, and advancing individuals with disabilities in the workplace. The Act provides for detailed plans, including the methods that are used for meeting the needs of employees with disabilities. The Act also highlights the standards used to assess violations in complaints alleging disability discrimination in the workplace.
Disability discrimination in the workplace examples
Many instances can qualify as disability discrimination in the workplace. Here’s a quick summary:
- Discriminatory terms/conditions of employment
- Lack of reasonable accommodation
- Medical questions and exams
- Confidentiality when dealing with employees with a disability
1. Discriminatory terms/conditions of employment
The law prohibits employers from discrimination employees and job applicants when hiring, firing, assigning work, promotions, training, giving fringe benefits, and other terms/conditions of employment. In simple terms, disability shouldn’t be a reason for making decisions regarding the above.
Employers are prohibited from harassing job applicants or employees because of a disability or history of disability. Harassment includes; making offensive remarks. However, offhand comments, simple teasing, and isolated incidents (that aren’t serious) aren’t prohibited. Harassment must be frequent and severe to the extent of creating a hostile working environment or resulting in adverse employment decisions such as a demotion or firing. Persons with disability are covered from harassment originating from co-workers, supervisors as well as individuals who aren’t employees of the employer i.e., customers or clients.
3. Lack of reasonable accommodation
If an employer doesn’t go out of their way within reasonable limits to help persons with disability apply for jobs, perform duties better; enjoy applicable privileges and benefits of employment, the employer may be guilty of disability discrimination in the workplace. Reasonable accommodation includes making the workplace easily accessible to wheelchair users and providing aids to employees who have visual or hearing impairments.
Although federal anti-discrimination laws don’t require employers to accommodate employees who care for disabled family members, the FMLA (Family & Medical Leave Act) offers such provisions.
Undue hardship: Although the law requires employers to put some effort and accommodate persons with a disability, accommodations shouldn’t be significantly difficult or costly for the employer. If accommodation results in undue hardship, an employer doesn’t have to provide it. Undue hardship means accommodations that are too costly and expensive in relation to an employer’s financial resources, size, and business needs. In fact, employers aren’t obligated to offer the exact accommodations an employee or applicant wants. Instead, employers are at liberty to choose the accommodation that will serve all persons with disability perfectly.
4. Medical questions and exams
There are strict limits on the medical questions and exams that job applicants should be subjected to. For instance, you shouldn’t be subjected to medical questions or medical exams before you receive a job offer. What’s more, employers shouldn’t ask job applicants questions aimed at identifying if they have a disability or the nature of their disability. However, employers can ask job applicants if they are capable of performing a job or how they would perform with/without reasonable accommodation.
5. Confidentiality when dealing with employees with a disability
After hiring, employers can ask medical questions or subject employees to medical exams only if the employer needs documentation to support an employee’s quest for accommodation or if the employer feels the employee won’t be able to perform adequately or safely because of their condition. Employers are required to keep resulting medical records/information confidential (separate from regular medial files).
How to prove disability discrimination in the workplace
If you apply for a job or work in a company whose management, employees or clients/customers discriminate against you because you are disabled, you should take action immediately. The law prohibits job applicants and employees from disability discrimination if you work or are applying for a job in a company with 15 or more employees. Here are the four key steps to proving discrimination in the workplace:
- Know your rights
- File a complaint
- File a charge through the EEOC and/or DFEH
- File a lawsuit
Step 1: Know your rights
The first step to proving disability discrimination in the workplace is knowing your rights. The ADA dates back decades. The amendments are over a decade old, yet very few persons with disability understand the law and its protections. Employers haven’t been left behind. Luckily, most employers are willing to comply once they get acquainted with the law.
If you are denied a promotion because of a disability i.e., one that requires a lot of driving because your employer assumes using a wheelchair interferes with your driving abilities, you can contest such a decision if you have a car fitted with special equipment that allows you to drive as good, if not better than typical drivers. Your disability makes you entitled to reasonable accommodation. Since you can do the job if you are reasonably accommodated, you can task your employer to reconsider you.
Step 2: File a complaint
Filing an internal complaint will compel your employer to reconsider decisions such as the ones discussed in step 1. It’s also advisable to file a complaint officially using formal channels to give your employer a chance to correct a mistake. This can save you time and resources you would otherwise need to spend to resolve the problem through a workplace discrimination lawyer.
A formal complaint also acts as proof of inaction when you decided to take legal action against your employer. Inaction will prove to the jury or judge that you had the goodwill to resolve the problem. As a result, your employer can be subjected to punitive damages to punish them for acting egregiously.
Step 3: File a charge through the EEOC
If your efforts to solve a disability discrimination case internally with your employer are futile, you can file charges with the EEOC or state anti-discrimination agency, if you have one in your state. There are guidelines to consider when filing with the EEOC. For instance, charges must be filed with the EEOC before you file a lawsuit. You must also file within 180 days and meet other procedural requirements. When the EEOC finishes processing the charge, a right-to-sue notice will be issued allowing you to proceed to court. You can go to court immediately; however, you need to request the EEOC for a right-to-sue notice first. Filing a disability discrimination charge with the EEOC may appear to be easy, however, given over 80% of charges are dismissed because of technical reasons, the importance of seeking the services of a workplace discrimination attorney can’t be overlooked.
Step 4: File a lawsuit
The process of filing a disability discrimination lawsuit is also plagued with procedures and guidelines that must be met. A workplace discrimination lawyer will help you meet the deadlines, prepare or/collect enough evidence for your case, argue the case, and negotiate a settlement. An experienced workplace discrimination attorney should help you every step of the way, including assessing the viability of your case based on available evidence. He/she can also help with paperwork, questioning witnesses among other crucial elements of a lawsuit that increase your chances of winning.
Disability discrimination in the workplace cases
Many notable companies have been at the center of disability discrimination charges in the US. Here is a quick summary of some the more notable disability discrimination cases that have been filed by the EEOC and determined under the ADA.
- EEOC v. United Airlines
- EEOC v. Starbucks
- EEOC v. United Parcel Service
1. EEOC v. United Airlines
In 2009, United Airlines settled a federal lawsuit for violating the ADA. The EEOC suit which arose from a charge filing by Samuel Chetcuti, a United Airline storekeeper, saw the airline pay $850,000 to former and current employees at the time that had been denied employment opportunities due to the airline’s discriminatory policy. According to the EEOC, the airline had a policy that denied person’s with disability the chance to work overtime. Chetcuti had been denied overtime for being epileptic despite being medically cleared.
2. EEOC v. Starbucks Coffee Company
In 2007, Starbucks paid $75,000 to settle a case against a barista suffering from mental impairments (ADD and bipolar). The barista performed when accommodated with support and extra training. However, a new manager halted support, cut her working hours, berated her publicly in the presence of consumers, and subjected her to performance improvement before discharging her.
3. EEOC v. United Parcel Service (UPS)
In 2006, UPS agreed to pay $110,000 to settle a disability discrimination case involving a disabled employee who was denied reasonable accommodation and fired. The employee in question had ADD, bipolar disorder and epilepsy. The employee had been working as a loader for a year before being assigned a new role (routine packaging) that was difficult to perform. Given his medical conditions characterized by learning difficulty, the employee couldn’t remember zip codes, among other tasks essential for performing. However, after UPS learned of his learning disability, they refused to give him alternative tasks, eventually firing him for making too many mistakes when sorting packages.