Employer Defenses to Disability Discrimination

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 What Is Disability Discrimination?

Disability discrimination is a type of workplace discrimination. Disability discrimination occurs when an employee is treated less favorably or differently than other employees based on the fact that they have a disability.

Disabilities fall under the protected classes. Therefore, employers are not permitted to discriminate against employees or potential job candidates because they have a disability.

The Americans with Disabilities Act (ADA) is a federal law that provides civil rights protections for individuals who have legally defined disabilities. The ADA protects against discrimination in the workplace and also governs the following:

  • Accommodations
  • Transportation
  • Housing

Every aspect of the work environment is protected under the ADA, from the hiring process to the process of terminating an employee. There are certain questions that employers are not permitted to ask job candidates because they are considered discriminatory.

However, an employer is entitled to ask whether a prospective job candidate can perform the job’s essential functions with or without reasonable accommodations. Under the ADA, a disability is defined as something that substantially limits a major life activity.

Examples of major life activities include:

  • Walking
  • Feeding oneself
  • Dressing oneself

A disability may be mental or physical. In certain cases, an employee’s condition may require an evaluation to determine whether or not they meet the legal standard.

It is important to note that many different conditions are generally accepted as disabilities, including, but not limited to:

  • Cancer
  • Cerebral palsy
  • Autism
  • Other similar conditions

What Does Employment Mean under the ADA?

One of the key aspects of the ADA is that it prohibits both private and public employers from discriminating against employees or job applicants with disabilities, as noted above. Specifically, Title I of the ADA provides that it is illegal for an employer to discriminate against a disabled employee or job candidate through the employment process.

The following also occurs when:

  • A candidate is applying for a job.
  • During the interview process.
  • If the application involves testing, such as grammar tests, or the job requires special training, for example, company software.
  • Being considered for a job offer.
  • An employer is assigning work tasks or projects.
  • During an employee evaluation or job performance review.
  • Making decisions regarding terminations or promotions.

The ADA also prohibits an employer from discriminating against an individual because they are related to or associated with another individual who has a disability.

What Types of Public Accommodations Does the ADA Cover?

Title III of the ADA provides that any entity that is open to the public has to be accessible to individuals who have disabilities. Accessibility in this regard means that if a public place falls under the ADA, it must provide certain accommodations, such as:

  • Handrails
  • Wheelchair ramps
  • Service animal exceptions to no pet policies.

A public place under Title III may also be required to provide resources or devices that allow individuals who have vision, speech, or hearing disabilities to communicate effectively. For example, a library may be required to install specific computer software to accommodate individuals who are blind.

It is important to note that these standards will apply even if the entity was constructed before the passing of the ADA. Examples of public places that may be governed by the ADA requirements include the following:

  • Restaurants
  • Hotels
  • Retail stores
  • Sidewalks
  • Public restrooms
  • Schools
  • Office buildings
  • Movie theaters

In contrast, establishments such as private clubs and religious organizations, in general, are not required to comply with the ADA. Therefore, they would not be required to offer public accommodations.

How Can Employers Stay in Compliance With the ADA?

A disability discrimination claim that is brought against an employer by an employee or former employee is a serious allegation. As discussed above, employers are prohibited by the ADA from discriminating against any disabled employees.

Generally, it is not permissible to ask questions regarding an individual’s health, condition, or disability.

Perceived disabilities are also included. Employers are only permitted to ask about the employee’s ability to perform essential job functions. If the employer knows about the employee’s disability, they must make reasonable accommodations so the employee can do their work.

These are accommodations that the employer can make without undue hardship. These accommodations may include changes to the employee’s work environment or job position.

Compliance with the ADA may become more complicated if an employee has not made their disability known. It is still, however, discriminatory to ask about any perceived disabilities.

Examples of types of questions that would not be permitted under the ADA may include, but are not limited to questions regarding:

  • The employee’s history of hospitalizations.
  • Working days missed at previous employment due to illness.
  • Requiring the employee to fill out a checklist of conditions or diseases.
  • Whether the employee or candidate has ever received treatment for drug addiction or for alcoholism.

Are There Any Defenses to Disability Discrimination?

If an employer is accused of disability discrimination, there are defenses that may be available, depending on the specific facts of the case. The employer may have had a legitimate and non-discriminatory reason for their actions.

To prove this defense, an employer would have to show sufficient personnel notes that prove there was another reason for their actions. If an employer is in an at-will employment state, they may be able to argue that they did not act discriminatorily.

In at-will employment states, employers may terminate employees for any legal reason or for no reason at all. An employer may argue that there is not a reasonable accommodation that exists for the employee’s disability.

Making an accommodation would cause the employer undue hardship. Reasonable accommodations may include, but are not limited to:

  • Making changes to the work environment so existing facilities are more accessible to disabled employees.
  • Job restructuring, such as providing a seat to retail cashiers while they work.
  • Modifying employee work schedules so that a disabled employee has:
    • ample time to rest; and
    • time to attend to their health.
  • Internal reassignment to an equal but more suitable position.
  • Providing remote positions.

Any accommodations that may cause undue hardship does not have to be considered or fulfilled. Examples of accommodations that would constitute undue hardship include ones that are difficult to implement or excessively expensive.

Another defense may be that the employee posed a direct threat which justified any action that the employer took regarding their employment status. In order to prove that an employee was a direct threat, the employer will have to prove the following:

  • There is a substantial probability that the disabled employee’s condition will lead to considerable harm to:
    • themselves;
    • the property; or
    • others;
  • Proof that harm did occur or proof that it is likely that harm will occur;
  • Medical or other objective evidence supporting the claim that the disabled employee poses a threat; and
  • That there are no reasonable accommodations that can be implemented in order to relieve the risk that the disabled employee poses.

Do I Need an Attorney for Assistance Disability Discrimination Defenses?

If you are an employer who has any issues, questions, or concerns related to disability discrimination defenses, it is important to consult with a discrimination lawyer. Your lawyer can advise you of the employment laws in your state and determine if any of the legal defenses discussed above are available to you.

In addition, your attorney can help you gather evidence that supports your case. If you have to appear in court or in negotiations with the other side, your attorney will represent you.

If you are an employee who has faced disability discrimination, it is important to consult with a lawyer who can help you protect your rights.


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