What Laws Address Protections Against Disability Discrimination?
As outlined by attorney Lisa B. Golan in her article titled “ADA Basics: When Does An Employee Have a Disability Discrimination Claim?,” protections against disability discrimination are governed by the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., (ADA). The Americans with Disabilities Act (ADA) was amended by Congress in 2008 to widen the scope of protections against disability discrimination. As a result, many employees who may not have regarded themselves as disabled may now be eligible for discrimination claims under the amended ADA.
How is Disability Discrimination Defined?
Disability discrimination as defined by the amended ADA includes discrimination:
- Under the basis of a current disability;
- Based on a record of a disability;
- As the failure to reasonably accommodate an individual with a known disability or record of disability, known as discrimination due to a need for accommodation;
- Due to an employee’s relationship or association with someone with a disability;
- By failure to maintain the confidentiality of medical inquiries, or by impermissible medical examination or inquiry;
- Based on regarding as someone having a disability.
What Does a “Regarded As” Disability Mean?
A “regarded as” disability was redefined in 2008 to include individuals are “regarded as” having a disability if an employer takes any adverse action against them because of an actual or perceived physical or mental impairment, which is not necessarily substantially limiting. This means that individuals can make claims based on adverse action against them even if it is not directly a result of a disability.
For example, an individual fired due to a permanent limp that does not affect their job function, or ability is likely a victim of “regarded as” disability discrimination. Perhaps the individual’s employer viewed or “regarded” them as having a worse physical state or ability than they actually have.
What Accommodations Must an Employer Provide?
An employer is subject to the ADA if it has 15 or more employees for 20 weeks of the current or preceding calendar year. Employers under the ADA must reasonably accommodate employees who have a known disability or record of a disability and are otherwise qualified. A record of disability under the ADA is defined as having a history of disability.
Discrimination based on a current or actual disability is defined as taking adverse action against employees who have a physical or mental impairment that substantially limits them in a significant life activity or major bodily function when compared to most people in the general population. The 2008 amendments to the ADA broadened the scope of the law, with substantially limited not necessarily being a demanding standard.
Employers should provide reasonable accommodations which may include:
- Eliminating or replacing the non-essential functions of a job;
- Providing alternative methods or assistance (such as devices) to perform essential functions;
- Providing qualified readers or interpreters; and
- Allowing time for treatment.
There are many nuances to the ADA including laws governing disclosure of medical information, medical examinations, medical inquiries, among other issues. Generally, an employer violates the ADA by failing to accommodate a disability or record of disability reasonably. An employer also may violate the ADA by taking adverse action against an employee due to an actual or suspected need for reasonable accommodation.
If you or your loved ones have experienced disability discrimination or you would like to learn more about the ADA, the disability discrimination process, or how to file a claim, please schedule a free consultation by calling us today.