Disability and Disability Discrimination Defined
The most general definition of a disability is a physical or mental condition that limits a “major life activity,” such as walking, talking, seeing, hearing, or learning, or the operation of a major bodily function. A person with a history of disability, such as one with cancer in remission, is also considered to have a current disability.
Disability discrimination occurs when an employee or applicant with a disability is affected adversely in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
For instance, an equally qualified candidate who has a disability and is routinely passed over for promotion, or even training for advancement, is considered as being discriminated against. In perhaps the most serious example, a person who develops a disability is terminated but given a totally different reason for the action. This then becomes a wrongful termination case based on disability discrimination.
Disability Discrimination in Hiring
When it comes to hiring, employers and hiring agents must adhere to strict standards in the questions they can ask. Even if the candidate is obviously physically disabled, the questions can focus only on how the applicant could and would perform the job. No questions about the disability itself, or requests for a medical exam, may be extended before a job offer is made.
Once the person with a disability is hired, questions and medical exams may be requested, but only with the goal of accommodating the new hire on the job.
The overall goal of the ADA is for employers to provide “reasonable accommodations” for applicants and employees with a disability. The Department of Labor (DOL) guidance on reasonable accommodations posits three goals:
- Ensuring equal opportunity in the application process
- Enabling a person with a disability to perform the essential functions of a job
- Enabling a person with a disability to enjoy equal benefits and privileges of employment
The DOL also calls reasonable accommodations “productivity enhancers.” Such enhancers include making existing facilities accessible (ramps, workspace modifications); job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; and providing qualified readers or interpreters.
The ADA requires such reasonable accommodations unless they present an “undue hardship” to the employer, in which case a more reasonable accommodation should be pursued.
Anti-discrimination laws, whether at the federal or state level, strictly prohibit employer retaliation. An employer cannot discriminate against or harass any employee or applicant because they:
- file or act as a witness in a disability discrimination charge, complaint, investigation, or lawsuit
- communicate with a supervisor or manager about disability discrimination
- answering questions during an employer investigation of alleged disability discrimination
- refuse to follow orders that would result in discrimination
- request accommodation of a disability
How Experienced Legal Representation Can Help
One of the main impediments to pursuing a just result from an act of disability discrimination is fear of retaliation. “If they can do this, then they can certainly fire me too if I complain” is an all-too-common reaction to discrimination. But you aren’t alone. An experienced employment law attorney can investigate your case and help you fight for fair compensation and recourse.
The attorneys at the Law Offices of Robinson Bradford LLP have the experience and resources necessary to help you fight for justice.