Suppose you need certain accommodations to your job because of a disability, and your employer is giving you a hard time about making those changes. Sometimes, a reminder to your employer of its legal obligations is enough to get your company to reconsider. However, disability discrimination issues can get tricky, especially if your employer is denying that you have a disability or claiming that your requested accommodation isn’t reasonable.
In these situations, it’s in your best interest to talk to an employment lawyer about how your employer is responding to your needs as a disabled employee as soon as possible. For general information about the rights of disabled workers under federal law, see Disability Discrimination in the Workplace: An Overview of the ADA.
When an employer treats you less favorably than other employees because of your disability, the employer is discriminating against you in violation of the law. The Americans with Disabilities Act (ADA) is the federal law that prohibits employers from discriminating against people with disabilities. It also imposes an affirmative obligation on employers to provide reasonable accommodation to employees with disabilities.
Not every physical or mental ailment or limitation is a “disability” for purposes of the ADA. And, even if you are “disabled” under the law, you still may not be “qualified” for protection under disability discrimination law if you don’t have the requisite skills or experience to perform the job or if you can’t perform the essential duties of the job even with reasonable accommodation. Another complication is that not all employers are covered by disability discrimination laws. An experienced employment lawyer can assess whether you and your employer are subject to state and federal disability discrimination laws.
Under the ADA, physical or mental impairments that limit a major life activity (such as walking, sitting, seeing, hearing, and many others) are considered disabilities. The list of major life activities and the conditions that may impair or interfere with them is long and continues to grow. With the help of an employment lawyer, you can determine whether you have a condition that limits a major life activity and places you within the protection of the law.
Even if you are not presently disabled, you may be protected if you have a history of a disability or if your employer thinks (even incorrectly) that you are disabled. These situations raise additional complications that a lawyer can help you sort out.
To be a “qualified” individual with a disability, you must meet the skills, experience, education or other requirements for the position. You also must be able to perform the essential duties of the position, with or without reasonable accommodation.
If you are totally disabled and cannot work for the foreseeable future, your employer does not have to continue to employ and pay you. But, if you can perform the essential functions of your job, with some changes or assistance from your employer (called “accommodations”), you are a qualified worker for purposes of disability discrimination law.
An employer must provide reasonable accommodations that allow you, as a qualified worker with a disability, to perform your job. For example, an employee with visual impairment may need voice-activated computer software to do his or her job. Or a diabetic employee may need several breaks in the workday to administer insulin shots.
One of the key aspects of an accommodation is that it must be reasonable; that is, it must not impose an undue hardship on the employer. If a disabled employee needs an accommodation that is so costly it would put the employer out of business, this would not be a reasonable accommodation. Your lawyer can help you examine what you need to do your job and come up with reasonable measures to request of your employer.
Employers under a certain size are not covered by state and federal disability discrimination laws. Employers with fewer than 15 employees are not covered by the ADA. However, the minimum employer size for state disability discrimination laws differs from state to state. An employment lawyer with experience in the laws of your state will know whether or not your employer is covered by state and federal law.
When you need accommodation from your employer, you have to engage in what is called the “interactive process.” This process requires you to present a request to your employer for the type of workplace change you need or other reasonable measures that would enable you to work. Your employer is required to respond to your request and work with you to come up with an accommodation that works.
Getting the advice of an employment lawyer during this process can help you frame your request in the best way to meet your needs. A well-thought-out proposal also increases the likelihood that your employer will respond in a reasonable manner and either grant your request or propose a different, but equally viable, accommodation.
If the interactive process fails, your employer refuses to grant even reasonable accommodation, or disciplines or fires you because of your disability, you should speak to a lawyer right away. You’ll want to get your lawyer’s opinion on whether or not you have a disability discrimination case and, if so, what steps to take to enforce your rights. Your lawyer will discuss different strategies with you and help you decide on the best course of action to take. Below are some possible steps that your lawyer might recommend.
The first step to launching a formal challenge to disability discrimination is filing a complaint with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the antidiscrimination laws. You may also want (or need) to file a complaint with the agency that enforces similar laws in your state. Filing a complaint with the EEOC is a prerequisite to filing a lawsuit in court, and there are specific deadlines you’ll need to meet to protect your rights. An employment lawyer can tell you where (which agency) and when to file.
The state or federal agency handling your complaint may offer mediation, or your lawyer (or your employer’s lawyer) may suggest mediation in an effort to settle your claims before trial. Mediation can be a very effective tool for resolving disputes, but only if both sides are well prepared. Your lawyer will spend time gathering evidence and presenting your case in the most persuasive way possible. It’s crucial for you to have legal representation at this stage—you can bet that your employer will have an attorney and, if you don’t, you will be at a disadvantage.
Anyone bringing a lawsuit is in a much stronger position if they’re represented by an attorney. An experienced employment lawyer can provide valuable insight into what can sometimes be a very complex legal process. Your attorney can also discuss the pros and cons of various decisions you must make as you proceed from drafting the initial complaint all the way to trial.