by Nathan Davidovich
Attorney at Law, Labor and Employment Law
Copyright © January 1996
Despite increased sensitivity to physical and mental disabilities, many of America's workers find themselves to be victims of employment discrimination due to their disability. The Americans With Disabilities Act (ADA) is a federal law which prohibits employers from discriminating on the basis of a "qualified" disability. Employees living with a physical disability have the protection of federal law, not to give them preferential treatment, but to level the playing field. With the protection of the ADA, a worker who, despite a disability, is able to perform the essential functions of his job, is entitled to reasonable accommodation from the employer, if needed. If you feel that you have been a victim of disability discrimination, it is important that you know your legal rights, and the actions you must take to prevent loss of your right to a remedy. This article is not designed to provide legal advice or render legal opinions for specific situations. The law in other states may vary from Colorado on these issues. For specific legal questions, contact the attorney of your choice. If you wish to consult with the author on any matter relating to Colorado employment issues, you will be advised of the fee basis for such consultation.
What is disability discrimination?
Disability discrimination is the process of making decisions affecting an employee based wholly, or partly, upon the real or perceived disability of the employee, in those cases where the employee is a "qualified" individual under the ADA. The ADA prohibits employment discrimination against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. A "qualified individual" is an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."
How to determine if you have been a victim of disability discrimination
Litigation pursuant to the Federal discrimination statutes are very fact intensive. Thus, there is no black and white rule by which you can decide if you have been the victim of disability discrimination. It will be dependent upon the particular facts of your case. The fact that you are a "qualified individual" with a recognized disability and have had an adverse employment experience does not necessarily mean that you have been the victim of discrimination. Employers have the right to discipline and fire employees with disabilities, as long as the decision is not based upon discriminatory or other impermissible factors. I recommend that, if you in any way suspect that you have been a victim of disability discrimination, you should immediately arrange for a consultation with a knowledgeable employment attorney. After reviewing the facts of your case, a seasoned attorney will be able to give you an opinion as to whether any adverse employment action was the likely result of discrimination. Prompt consultation with an attorney is extremely important due to various laws that require you to take certain action within a certain period of time after the occurrence of discrimination. Failure to act in a timely manner may result in loss of your rights to recover, even if you can prove the existence of discrimination. Also, with the passage of time, valuable evidence can be lost and the memories of witnesses may fade.
Disability discrimination can take many different forms. It can consist of comments about the disability, made by managers or executives, accompanied by some type of adverse employment action or decision. Such action might include a failure to promote, less favorable employment conditions, disciplinary proceedings, layoff or termination. It may consist of situations in which the worker is able to perform the "essential functions" of the job, with reasonable accommodation, and the employer refuses to accommodate. One of the keys in determining whether you have a claim under the ADA is whether the comments about the disability, the failure to make reasonable accommodation, or other discriminatory actions, in fact were the reason, or part of the reason, for the adverse employment action.
What is "reasonable accommodation"?
EEOC guidelines provide that once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability. Thus, an employer is not solely responsible for identifying a reasonable accommodation.
Where an employee is unable to perform the essential functions of his present job, "reasonable accommodation" may include reassignment of the employee to a vacant position. The United States Supreme Court held that an employer is "not required to find another job for an employee who is not qualified for the job" he is doing. However, an employer cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies.
Procedural steps to preserve your Title VII claim
In order to obtain the right to sue in federal or state court you must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). That charge must be filed within 180 days of the alleged act of discrimination. Many states, such as Colorado, have a law which prohibits disability discrimination in employment and authorizes a state agency to grant relief. In such cases, the charge must be filed, with the EEOC, within 300 days of the last act of discrimination, or sooner in certain instances. If you do not file an EEOC charge within the required time period, you will probably be prevented from further pursuing your rights. A lawsuit claiming discrimination under the ADA must be filed within ninety days of receipt of a Right to Sue Letter from the EEOC. Failure to follow the required time periods may cause you to lose your rights to seek a remedy for disability discrimination under Title VII.
Because of the intricacies of the various time barriers, it is most important to consult with an experienced employment lawyer, who will be able to guide you through this maze. I make this recommendation despite the fact that you do not need a lawyer to file a charge with the EEOC. However, my experience has taught me that it may be a serious mistake to try to proceed on your own, even as to the initial filing of a charge. If you fail to include certain allegations, you may be prevented from bringing them up in a later lawsuit.Amount of recovery
Under Title VII, an employee who has been a victim of disability discrimination, may recover the economic losses that would have been earned, but for the discrimination, compensatory damages for emotional trauma, and attendant physical suffering, punitive damages, attorney fees and court costs. Depending on your individual circumstances, you may be entitled to additional recoveries under state, rather than Federal, law.
The fight against disability discrimination in the workplace involves analysis of multiple factors, specific to your case. Many of these factors have not been discussed in this article. Learn more about protecting your rights by selecting a competent lawyer to represent you.
Nathan Davidovich practices employment law in the State of Colorado, and either he, or one of his associates, are available for consultation on employment matters arising in the State of Colorado. Nathan Davidovich is available to speak and consult at management seminars throughout the world to help employers avoid violating federal and state anti-discrimination laws.
Approximately 54 million non-institutionalized Americans have physical, intellectual, or psychiatric disabilities (Hernandez, 2000)... The Americans With Disabilities Act (ADA) protects individuals with disabilities from discrimination based upon their disability (Bennett-Alexander, 2001). The protection extends to discrimination in a broad range of activities, including public services, public accommodations and employment. The ADA's ban against disability discrimination applies to both private and public employers in the United States. Not all individuals with disabilities are protected by the ADA.
To be protected, individuals with disabilities must show that they are otherwise qualified for the job they want. They have to prove that they can perform the essential functions of that job with or without reasonable modifications, and they must have a disability that significantly limits them and show that they have suffered discrimination because of the disability. The ADA prohibits employer discrimination against qualified individuals with a disability in regard to application procedures, hiring and firing, promotions, pay, training, and other terms, conditions, and privileges of employment (Hernandez, 2001). This applies to the entire range of employer-employee relationships, including testing, work assignments, discipline, leave, benefits, and lay-offs. In addition, the ADA prohibits retaliation against individuals who seek the protection of the act, or in any way help those who do. There are several examples of workplace discrimination, such as: 1.
Limiting, segregating, or classifying disabled job applicants or employees in a way that denies them employment opportunities because of their disability. 2. Using the services of organizations, such as employment agencies, referral services, labor unions, or healthcare providers, which discriminate against the disabled. 3. Using standards that discriminate on the basis of disability or enable discrimination.
4. Denying employment or job benefits to individuals because they have a relationship with someone who is disabled. 5. Not making a reasonable accommodation for the disabilities of employees or denying employment opportunities to them because of the duty to accommodate their disabilities. 6. Using qualification standards, employment tests, or selection criteria that screen out or the disabled unless they are job related.
7. Using employment tests that measure applicants' disabilities, instead of their ability to do the job. This is not a complete list of the types of discrimination found in the workplace, there are other forms of workplace discrimination prohibited by the ADA. However, one form of workplace discrimination; the failure to reasonably accommodate the disabilities of applicants and employees, applies to all stages of the employment process. An accommodation is any change in the workplace environment or in the way things are done in the workplace that gives individuals with disabilities equal employment opportunities (Bennett-Alexander, 2001). The ADA provides examples of employers' actions that are considered reasonable accommodations.
The list includes making physical facilities accessible to and usable by disabled persons; restructuring jobs; changing work schedules; initiating reassignments; modifying or acquiring equipment; changing tests, training materials, or policies; and providing readers or interpreters (Hernandez, 2001). Many claims of workplace discrimination have to do with a failure to reasonably accommodate known disabilities of applicants or employees. If a claim of disability discrimination is made, employers may use various defenses. They may argue that their decision was made for legitimate, nondiscriminatory reasons.
They also may show that they could make no reasonable accommodation for the person's disability without undue hardship. If the claim is that the employer's test or standard resulted in discrimination, employers may show that the standard or test is job related and necessary to give. Employers also may demonstrate that hiring or keeping the disabled employee would pose a direct risk of harm to others in the workplace. Employees filing claims based on a disability may find greater relief in state courts, applying state laws.
In some states, damages are higher for disability discrimination under state laws, and claims are easier to prove than in federal courts applying the federal laws (Bennett-Alexander, 2001). People with disabilities believe the ADA has improved their level of participation in mainstream American society -- including better access to buildings, greater access to transportation and fuller inclusion in the community (Wells, 2001). Even though the ADA has helped, disability discrimination still exists in the workplace today. The disabled still face an uphill struggle when it comes to finding work and earning salaries that are on the same level as the rest of the work force. Employers need to comply with the regulations that the ADA enforces, in an attempt to keep people with disabilities able to work and to help them advance in their professional lives..
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