Life can be difficult for individuals who live with a physical or mental disability, and a large part of their struggle are the issues they face in securing and maintaining gainful employment. Many business owners resist hiring disabled applicants because of their belief that disabled individuals will not be able to successfully perform their duties.
Even where a disabled applicant does secure an entry-level position, they may find themselves unfairly blocked from promotions and other performance-related perks down the road. It's a frustrating situation when those with valuable skills and experience are prevented from utilizing their abilities to the fullest in the workplace. Fortunately, people who have experienced disability discrimination can turn to the legal system for relief.
What Is a Disability?
The precise definition of a disability, as it pertains to U.S. law, can be found in the Americans with Disabilities Act (signed into law in 1990, amended in 2008). The ADA regards an individual as disabled and entitled to employment protection if either of the following conditions apply:
- They currently have or have a history of a mental or physical impairment that significantly interferes with at least one major life activity.
- They are regarded as having such impairment (whether or not they are actually impaired).
The ADA Amendments Act of 2008 expanded the protections of the Act; among other things, the new legislation called for the definition of “disability” to be “broadly construed.” This increased the scope of what conditions formerly qualified as a disability under the ADA of 1990.
Which Employers Must Comply with the ADA?
All public and private employers with 15 or more employees are bound by the ADA.
What Basic Obligations Does the ADA Impose on Employers?
- Employers are required to try to provide “reasonable accommodations” to allow disabled employees to continue to do the essential functions of their jobs.
- Employers must not discriminate against disabled persons in any aspect of employment, including hiring, firing, promotions, raises, and vacation time.
- Employers are barred from harassing employees because of a disability.
- Employers cannot discriminate against non-disabled employees who are related to or otherwise associated with a disabled person.
Can an Employer Refuse to Provide Reasonable Accommodations?
Yes, but only if they can show that doing so would impose an “undue hardship” on the organization. For instance, if accommodating a disabled employee would cost the employer a substantial amount of money, it may be possible to decline to accommodate the employee without violating the ADA.
Additionally, the employer is not required to provide the employee with the specific accommodations they request if it can be shown that an alternative type of accommodation would enable the employee to perform their duties.
The employer is also not required to provide the employee with personal use items related to their disability—e.g., wheelchairs, hearing aids, etc.
Can the Employer Ask a Job Applicant About Any Disability They May Have?
No, but they can ask the applicant whether they would be able to perform their job duties, either with or without reasonable accommodations.
Can the Employer Require a Job Applicant to Undergo a Medical Examination?
Yes, but only in conjunction with extending a conditional job offer and only if such an examination is required of all new employees in similar positions at the company.
How Should an Employee Request an Accommodation?
Employees should simply inform their employer of their need for accommodation, preferably in writing with a copy retained by the employee as a dated record of the request. Employees are not required to cite the ADA when making their request. Employees are also not required to make any disclosure about their disability prior to accepting a job offer.
Can the Employer Ask for Proof of Disability?
Yes, the employer may ask for appropriate medical documentation if the nature of the employee's disability is not apparent.
What Can I Do if I Am a Victim of Disability Discrimination?
If you believe you have experienced disability discrimination by an employer, please don't hesitate to seek out legal counsel as soon as possible because there is a statute of limitations that governs claims of this nature. You have an ally at Barrett & Farahany, LLP, and you can contact us at 404-487-0903 for a complimentary consultation.