DISABILITY DISCRIMINATION ATTORNEYS: SACRAMENTO, CALIFORNIA
Disability Discrimination FAQs
Disabled persons face many barriers finding employment. With an unemployment rate that is double the rate of other groups, it can be reasonably inferred that disabled persons face pervasive discrimination in the hiring sector.
The myth that disabled individuals are unable to work or be productive members of society is continuously debunked by disabled American workers themselves. In fact, in 2018, over 19% of people in the American workforce had a disability, according to the Bureau of Labor Statistics. Today, many people who have disabilities are leading full lives with satisfying careers and we are committed to protecting their legal rights to do so.
People with disabilities are members of a protected class. This means that employers cannot deny employment to potential employees, nor can they fire current employees, based solely on the fact that the employee or potential employee is disabled. Under the Americans with Disabilities Act (ADA), employers must make reasonable accommodations for employees with disabilities. Failure to do so can lead to legal consequences under both state and federal laws.
We believe that individuals with disabilities are an integral part of our community and have just as much right to earn a living as everybody else. Our attorneys are dedicated to enforcing the employment rights of disabled workers.
We handle discrimination claims involving all aspects of employment, whether the discrimination claim is focused on an employer’s hiring practices, conditions of employment, or wrongful termination.
At our firm, you can benefit from the 30-plus years of combined experience our employment attorneys bring to the table.
What is considered a disability?
According to the ADA, a person with a disability is “a person who has a physical or mental impairment that substantially limits one or more major life activity.” There are a variety of conditions protected under the ADA, such as:
- Bipolar disorder
- Cerebral palsy
- Intellectual disabilities
- Major depressive disorder
- Mobility impairments requiring the use of a wheelchair
- Multiple sclerosis
- Muscular dystrophy
- Partial or completely missing limbs
- Post-traumatic stress disorder
- Obsessive-compulsive disorder
This list is not exhaustive and there are countless other conditions that may qualify an individual for protection under the ADA.
Your Rights In The Workplace
As a disabled individual, it is important to know that you have rights in the workplace and a physical or mental disability should not cost you your employment. As long as you are still able to perform the essential duties of your job with reasonable accommodations, those accommodations will not cause undue hardship for your employer, and your employer is subject to the provisions of the ADA, your employer must provide you with reasonable accommodations in the workplace.
Unfortunately, employers do not always honor employees’ rights. Whether that disregard of employees’ rights is intentional or not, employers may be held legally responsible. Disability discrimination can take many forms, such as an employer’s failure to accommodate or outright retaliation based on an employee’s disability.
Employers may face legal consequences for:
- Failure to accommodate an employee in accordance with the guidelines set forth by the Americans with Disabilities Act.
Has your employer denied your request for an accommodation without legally sufficient grounds for doing so? Has your employer discounted your disability? These actions may constitute violations of the ADA.
- Failure to engage in the interactive process of providing disabled employees reasonable accommodations, allowing the employee to adequately perform his or her job responsibilities.
Employers must make a good-faith attempt to determine whether reasonable accommodations are available for an employee with disabilities. They cannot simply refuse to consider your request.
- Retaliation through adverse employment actions against an employee for reporting discrimination, requesting a reasonable accommodation, filing a workers’ compensation claim, or pursuing disability benefits.
If I ask for a workplace accommodation for my disability, will I have to provide all my medical information?
Your employer has the right to ask for your medical information regarding your disability and workplace accommodation. When your disability is not apparent, an employer may request specific documents to understand your limitations.
However, an employer does not have a right to a blank medical release statement. Employers are limited in the types of medically supportive documents they are legally allowed to obtain.
An employer may only ask for medical documents that are “reasonable” to the requested workplace accommodation. “Reasonable” documentation is defined as:
- Limited medical information to establish the employee has a disability
- Evidence that the disability creates the needed accommodation
When an employer asks for adequate information regarding your disability, the evidence can be just enough to show that you have an impairment and that it substantially limits at least one major function or life activity.
Showing why you need the workplace accommodation typically involves more detailed medical information. While any disabled person has a right to a workplace accommodation, your disability may not meet the Americans with Disabilities (ADA) criteria.
A workplace accommodation is only granted if it is necessary because of the limitations of your disability. The medical evidence will need to verify the limitations specific to the requested accommodation.
For example, suppose an employee requires special medical treatment and requests a flexible work schedule with the freedom to leave as needed. An employer may ask for medical evidence showing the type of illness and requiring frequent treatments. Cancer patients may need chemotherapy treatments every 2-4 weeks, depending on their treatment plan.
What accommodations can be made for people with disabilities?
With significant strides in technology, there are numerous accommodations that can be made for people with disabilities. Reasonable accommodations are categorized as follows:
- No-tech: Typically, a no-tech accommodation is simple and requires very little money
- Low-tech: Low-tech included accommodations that are basic and straightforward:
- High-tech: High-tech involves the latest devices and technology
Common accommodations made in the workplace include:
- Job restructuring: When the duties of a workplace position can be rearranged, often by pulling minimal functions from the occupation to simplify the responsibilities of the job down to the essential functions:
- For example, suppose an accountant uses a wheelchair and has a feeding tube that needs frequent attention. While the employee would generally work in the office for long hours six days a week during tax season, the occupation can be modified to allow the accountant to work from home.
- Flexible or modified work schedules: When the traditional hours of the occupation are changed
- Suppose an employee has a condition that requires medication at certain times of the day. The drug causes grogginess and dizziness. The employee can be accommodated by allowing a later start time and a more extended break.
- Equipment, devices, or modifications: Technological accommodations can be a tremendous asset to disabled employees if it does not present an undue hardship on the employer
- For instance, if an employee has a hearing impairment, a teletypewriter can enhance communication.
- Training: The importance of supportive training directly affects an employee’s performance and can be accommodated in a variety of ways
- Suppose a new hire in a restaurant is colorblind. The restaurant uses an older color-coded point-of-sale system (POS) for training that the new hire has difficulty using. A training accommodation would allow the new hire to practice one of the main POS systems with high contrast and bold lettering, negating the need to distinguish colors.
- Adjusting company policies: Creating an exemption to a specific policy or group of policies
- Most organizations have a set of procedures and policies meant to regulate the behavior of the workplace. If an employee prone to seizures needs a service animal to detect oncoming attacks and the policy is “no pets,” an adjustment can be made.
- Altering the workplace: When the physical building or facility is modified for accommodation.
- For example, an employee who uses a wheelchair may need handrails in the facilities
The above accommodations should be made available to the disabled employee unless it will cause an undue hardship on the company.
What is “undue hardship,” and how can it affect employment?
An undue hardship is an exception to the accommodation rule. The ADA requires employers to provide accommodations necessary for disabled people to effectively perform their job tasks unless they cause an undue burden. For example:
- When the accommodation is considerably difficult or expensive, it may qualify as an undue burden.
- Once the adverse effects on the business eclipse the benefit of the accommodation, it may be considered an undue hardship.
To qualify for an undue hardship exemption, an employer would need to show that the accommodation is disruptive in the workplace, extensive, or too costly.
Generally, an unreasonable accommodation:
- Adversely affects other areas of the organization
- Breaks another state or federal law
- Negatively affects workplace safety
- Potentially hurts employee benefits
According to a report by the Office of Disability Employment Policy, the benefits of providing accommodations for disabled employees outweigh the costs.
In the last reporting year:
- 56% of accommodations did not cost the employer anything, while the remaining 44% of modifications averaged around $500.
- 82% of employers actively look for accommodation solutions for their disabled employees
- 75% of employers reported that the modifications they have made for disabled employees have been very effective
Employers should be aware of the many direct and indirect benefits of making accommodations for disabled employees. In addition to the above information, the report detailed how making modifications for disabled employees greatly benefits the company as a whole.
Business gains include:
- An increase in overall employee morale when disabled employees are better able to perform the functions of their occupation
- Disabled employees become more efficient, increasing productivity
- Increased employee retainment
I believe I was turned down for a job because of my disability; what should I do?
If you believe you have been turned down for a job because of your disability, there are important steps to take to protect yourself. According to the Bureau of Labor Statistics, in the last reporting year:
- The unemployment rate among the disabled was 9%
- The previous year was only 4.4%
- The National Employment rate was 3.9%
These percentages reflect that people who have disabilities are disproportionately unemployed compared to those who are not disabled. Despite apparent systemic disability discrimination in the hiring process, the ADA affords disabled persons actionable protections.
Under the ADA requirements for employers, people with disabilities:
- Should have an equal opportunity to apply to positions, jobs, and internships when they meet the qualifications
- Should have an equal opportunity to hold a job when they meet the qualifications
- Have a right to be considered for promotion alongside other potential candidates who possess similar qualifications
- Have an equal right to the same benefits and privileges enjoyed by others in similar employment
- Have a right to be free of harassment due to their disability
Establishing that you were turned down for a position that you are qualified for due to your disability is often challenging. Direct evidence is rare. Most disability discrimination cases are built on circumstantial evidence or a pattern of behavior.
Four criteria must be met to show discriminatory hiring practices:
- The potential candidate is disabled
- The potential candidate applied and was qualified for the job
- The potential candidate was passed over for the open position despite meeting the qualifications
- The position was filled by a person who was not disabled, or the position remained open for an unreasonable amount of time
What is “perceived disability discrimination?”
Perceived disability discrimination, or “regarded as” discrimination, is a challenging concept. Even though victims are not disabled, they suffer workplace discrimination because they are regarded as disabled.
Examples of perceived disability discrimination include:
- Perceived sickness:
- Suppose an employee was recently diagnosed with Stage 1 cancer and does not have symptoms. The employer assumes the employee will be too tired to handle more significant workplace projects and immediately stops assigning them. Instead, the employee is given minor projects with loose deadlines.
The employee never requested any accommodations. The employee feels discriminated against because they have been taken off important projects that could lead to a promotion. In addition, the employee suffers a reduction in pay because they are only given minor work.
- Assumed limitations:
- An example of assumed limitations frequently happens when employees return from medical leave. After a serious workplace accident, an employee took four months to recover. The physician cleared the employee to return to work without restrictions. However, the employee was promptly fired after returning to work. The employer assumed that the employee was physically limited and posed a liability to the company.
When a company makes assumptions about an employee’s abilities, disregards medical evidence to the contrary, and takes action against the employee for perceived disabilities, they have engaged in perceived discrimination.
Perceived disability discrimination claims must meet two specific conditions:
- If an employee has a temporary impairment, they do not qualify as “perceived as disabled.”
- The employee must not have requested accommodations or implied that they possessed a disability.
Not all reasons for termination are wrongful, no matter how the employee may feel about it, but there are, of course, some instances in which an employee is fired due to retaliation. The laws protecting against retaliatory employment actions are substantial and the typical employee should not be expected to fully understand the nuances of the law governing wrongful termination. An employment law attorney can help to inform you of your rights and legal options, as well as the best course of action in your case.
If you are facing or have faced disability discrimination in the workplace, do not suffer alone or in silence. Our team of knowledgeable and experienced employment attorneys at Perkins Asbill have a combined 30+ years of experience and are passionate about defending the rights of employees who have been discriminated against on the basis of a disability.