Disability discrimination is a form of workplace discrimination. It occurs when an employee is treated differently or less favorably than other employees, because they have a disability. Disabilities are a protected class and as such, employers may not discriminate against an employee or potential candidate because of their disability.
The Americans With Disabilities Act, or “ADA,” is a federal law that provides civil rights protections for those with legally defined disabilities. The Act protects against discrimination in the workplace, as well as public accommodations, transportation, and housing. All aspects of the work environment are protected under the ADA, from the hiring process to the firing process.
There are certain questions employers may not ask job candidates as those questions would be considered discriminatory. However, employers are entitled to ask whether a candidate can perform the essential functions of the job either with or without reasonable accommodations.
Under the ADA, a disability is something that substantially limits a major life activity. Examples of this include walking, and feeding or dressing oneself. Disabilities may be physical, or mental. In some cases, an employee’s condition may require an evaluation in order to determine whether they meet this legal standard. It is important to note that there are numerous conditions that are generally accepted as disabilities. These include cancer, cerebral palsy, autism, and the like.
How Can Employers Stay in Compliance With the ADA?
A claim of disability discrimination brought against an employer by an employee, or former employee, is a serious matter. Employers are prohibited by the ADA from discriminating against any employee who is disabled. In general, asking pointed questions about a person’s health, condition, or disability is not permissible; this includes any perceived disabilities. As previously mentioned, employers may only ask about their abilities to perform essential job functions.
If an employer is aware of an employee’s disability, the employer is required to make reasonable accommodations so that the employee can do their job. Such accommodations are those that an employer can make without undue hardship, and can include changes to an employee’s job or work environment.
Compliance may become more complicated if the employee has not made their disability known. However, it is still discriminatory to ask about any perceived disabilities. Some examples of such questioning include but are not limited to:
- History of hospitalizations;
- Working days missed at previous employment due to illness;
- Filling out a checklist of conditions or diseases; and
- Asking whether the employee or candidate has ever received treatment for alcoholism or drug addiction.
Are There Any Defenses to Disability Discrimination?
If you are an employer being accused of disability discrimination, there are some defenses available to you based on the specifics of your case. The first defense could be that you had a legitimate and non-discriminatory reason for your actions. Proving this defense would require sufficient personnel notes that prove that there was some other reason for your actions.
Alternatively, if you are in an at-will employment state, you may be able to argue that you have not acted discriminatorily. This is due to the fact that in at-will employment states, an employer may terminate an employee for any legal reason, or no reason at all.
You may argue that no reasonable accommodations exist for that employee’s disability. This would mean that making an accommodation would cause the company undue hardship. Reasonable accommodations include:
- 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 work schedules so that disabled employees have ample time to rest, attend to their health, etc;
- Internal reassignment to an equal but more suitable position; and
- Providing remote positions.
Any accommodation that would cause undue hardship does not need to be considered or fulfilled. Examples of undue hardship include excessively expensive or difficult to implement accommodations.
A third defense is that the employee posed a direct threat, and that threat justified any action you took in regards to the employee’s employment status. To prove that an employee was a direct threat, an employer will need to prove the following:
- There is a substantial probability that the disabled employee’s condition will lead to considerable harm, either to themselves, the property, or others;
- That it is likely that harm will actually occur, or proof that harm actually did occur;
- Medical or other objective evidence supporting the claim that the disabled employee poses a threat; and
- That no reasonable accommodations may be implemented in order to relieve the risk posed by the disabled employee.
Do I Need an Attorney for Assistance Disability Discrimination Defenses?
If you are an employer facing a claim of disability discrimination, you should immediately consult with a well qualified and knowledgeable employment law attorney. An experienced employment law attorney can determine whether any legal defenses are available to you. Additionally, an attorney can also help you gather evidence supporting your case. Finally, an attorney can represent you in court as needed.