Disability discrimination at the workplace

It is not uncommon for people to become disabled during their working lives, due perhaps to an illness, or an accident. And of course, people with existing disabilities apply for jobs as well.

As if having a disability isn’t enough, some employers wrongfully terminate employees with disabilities (or reject job applicants). That is just wrong.

Federal and state law says so as well. Employees (and applicants) with disabilities are protected from discrimination at the workplace and must receive reasonable accommodation to help fulfill their duties.

Americans with Disabilities Act – the anti-discrimination law

Sub-chapter I of the Americans with Disabilities Act (ADA for short) of 1990 ensures equal employment opportunity and prohibits discrimination for people with disabilities. The ADA is a federal law that applies to employers with 15 or more employees.

Under the Americans with Disabilities Act, employees or job applicants, who are otherwise qualified for a job, cannot be discriminated against because of:

• having a disability,
• having a history of disability,
• or being regarded as disabled.

Defining “disability”

The ADA defines “disability” as having a major mental or physical impairment, which restricts or disables a major life activity.

What is a major life activity? Anything that is an essential part of everyday life, for example:

• walking
• hearing
• seeing
• breathing
• speaking
• performing manual tasks
• impairment of major bodily functions (immune system, cell growth, neurological functions, respiratory functions, etc.)

Providing “reasonable accommodation” to employees with disabilities

The ADA says that the employer must provide reasonable accommodation to people with disabilities to help them do their job, despite their disability. This means that within reason, the employer has to provide assistance, and even make changes to the workplace to accommodate the disability.

The extent of accommodation that is deemed reasonable is a great topic. An employee needs to request reasonable accommodation from the employer (best if done in writing) for the disability, and the employer needs to work with the employee to make things work. There are, of course, limits. If the accommodation would create disproportionate expenses given the size and resources of a company, the request for accommodation may be declined.

Here are a few examples of what can be considered reasonable accommodation:

• making existing employee facilities accessible by individuals with disabilities
• job and schedule restructuring, reassignment to a vacant position, retraining employees with disabilities
• giving the employee time off work to recuperate from a disability

Time off work is also considered a reasonable accommodation. Some disabilities require time off, be it for rest after a surgery, ongoing medical treatments, psychological condition, or the like. A separate federal law, the Family and Medical Leave Act (FMLA) regulates mandatory sick leave.

Based on the FMLA, companies with at least 50 employees must provide up to 12 weeks of unpaid leave for a serious health condition, if the employee had been working at the company for at least 1 year. Here is a practical guide for employees on the FMLA.

There are other state level family and medical leave laws, which are more strict with employers.

Does the anti-discrimination law protect your job?

The point of the ADA is to make sure that as long as someone is qualified for the job (education, experience, skills), and can perform the essential functions of a given position, the employer can not fire the person because of a disability. Even if it means providing reasonable accommodation.

There are a few examples of discrimination due to disabilities, that are more common. Here are some examples:

• The employer terminates an employee based on a bias or assumption about the disability.
• The employer ignores a request for reasonable accommodation, or even fires the person after asking for an accommodation.
• The employer fires someone, after he/she reveals a disability, or a history of disability.

Settlement examples for wrongful termination due to disabilities

The combined damages in disability discrimination cases may fall between $30,000-$300,000. Damages received include back pay wages, lawsuit costs, front pay, emotional distress, and punitive damages.

Claims due to disabilities account for approximately 30% of claims reported to the EEOC. The number of such claims has been on the rise since 2010.

Source: https://www1.eeoc.gov/eeoc/statistics/enforcement/charges.cfm

Here are some examples of disability discrimination settlements and lawsuits that were won against employers who fired workers (or rejected job applicants) with disabilities (source: EEOC).

• A certified nursing assistant with asthma was awarded $51,000 after her employer forced her to supervise patients on their smoking breaks. The employer failed to accommodate her request of not having to fulfill the task, and terminated her after she refused to do so.
• A customer service representative with bipolar disorder and depression was awarded $135,000 after her employer terminated her, instead of accommodating her request for extended medical leave to treat herself.
• An optician with generalized depression, anxiety, and post-traumatic stress disorder was awarded $53,000 because her employer denied her accommodation request to bring her service dog to work. The claim also states that the optician was later fired for her request.
• An employee with degenerative disc disease was awarded $110,000 after he was wrongfully terminated without the employer actually determining whether his disc disease affected his ability to perform his job duties.
• A licensed practical nurse was awarded $90,000 after her employer, a nursing home facility, terminated her employment status immediately after learning that the employee has HIV.
• An employee was awarded $350,000 after he was fired for taking time off work due to a heart condition.
• An assembler was awarded $25,000 after she was terminated because her employer regarded her as having a disability. The cause of the employer’s assumption was that the assembler was taken to the hospital by an ambulance 2 times due to unrelated incidents.

Starting a disabilities claim/lawsuit

If you feel that your employer has discriminated against you because of a disability, this is how you can take action.