Practice Areas

Employee Rights

Disability Discrimination

The Americans with Disabilities Act (ADA), as well as some similar state laws, prohibits employers from discriminating against otherwise qualified employees on the basis of disability. The law forbids disability discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and other conditions of employment. The law also requires employers to provide reasonable accommodations to employees with disabilities, who are otherwise qualified to perform the necessary job functions.

The ADA also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.

It is illegal to harass an applicant or employee because of his or her disability. Although, simple teasing or off-hand comments may not constitute disability harassment, it may become harassment when it is so frequent or severe that it creates a hostile or intolerable work environment.

Matthew H. Morgan

Employment Law Attorney
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The ADA not only protects against unlawful discrimination by employers but also by certain “public entities,” such as schools and “private entities,” such as restaurants.

What Is a Reasonable Accommodation and When Is It Appropriate?

“Reasonable accommodations” include those adjustments that assist employees in the performance of the essential job functions, without creating an undue hardship on the employer. A reasonable accommodation is a change in the work conditions or environments to help a person with a disability apply for the job, perform their duties, or enjoy the benefits or privileges of employment.

Some examples of a reasonable accommodation may include, making the workplace wheelchair accessible, providing a special chair for the employee, providing special computer equipment to help an employee perform their job, modifying equipment or devices, or modifying the work schedule or hours. Determination of whether an accommodation is reasonable or whether it creates an undue hardship on the employer is determined on a case-by-case basis.

An employee with a disability who needs an accommodation to assist in the performance of necessary job duties should first discuss the need with the employer.

What Qualifies as a Disability Under the Act?

On September 25, 2008, Congress signed into law the ADA Amendments Act (ADAAA), which clarified the definition of “disability” under the ADA. These amendments apply to potential ADA violations occurring after January 1, 2009.

“Disability” is defined as a physical or mental impairment that substantially limits one or more major life activities (for example, walking, talking, seeing, hearing, or learning). Impairments that are episodic in nature, or in remission, may qualify as disabilities for the purposes of the ADA if they substantially limit a major life activity when active.

Persons with “disabilities” also include those with records of such impairments and those who are regarded as having such impairments. This means that an employer cannot unlawfully discriminate against an employee who the employer erroneously believes to be disabled. However, those “regarded as” having a disability are not entitled to reasonable accommodation under the ADAAA.

When Can an Employer Ask Medical Questions or Require a Medical Exam Related to a Disability or to My Genetic Information?

An employer can generally only ask medical questions or require a medical exam if the employer needs medical documentation to support the employee’s request for an accommodation or if the employer is concerned that the employee may be not able to perform their job safely or successfully due to a medical condition. The law requires that this medical information be kept confidential by the employer.

An employer cannot ask a job applicant if he or she is disabled or ask about the nature or severity of that person’s disability. The employer can, however, ask the applicant about their ability to perform the essential duties of the job with or without a reasonable accommodation. An employer cannot ask a job applicant to take a medical examination prior to offering them the job. An employer cannot refuse to hire an individual due to their disability, if that individual can perform the essential functions of the job with an accommodation.

Similarly, the Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits discrimination on the basis of genetic information. GINA also restricts an employer’s deliberate acquisition, and disclosure, of genetic information. “Genetic information” may include information about genetic tests, the medical history of an employee’s family member, or an employee’s receipt of genetic services. “Genetic information” does not include information about an employee’s current disease or disorder which may be instead protected against disability discrimination by the ADA.

Examples of Potential Disability Discrimination:

  • Your doctor has diagnosed you with a medical problem but says you can still perform your job with a little help. Your employer refuses to provide you with that help, and instead, reassigns, demotes, or fires you.
  • You used to have a mental or physical illness or handicap, and you are denied a job, denied a promotion, reassigned, or fired because of your record of this prior disability.
  • You are at a job interview, and the potential employer asks you any question related to physical or mental disabilities, including questions about your prescription drug use and workers compensation history.
  • A potential employer makes you a job offer, requires you to submit to a medical test (other than a drug test), and then denies you the job because of some mental or physical disability, even though you are capable of performing the duties of the job.
  • An employer makes you pay for a reasonable accommodation for your disability.

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