Disability Discrimination

The federal Americans with Disabilities Act (ADA) prohibits employers from making employment decisions which diminish the equal rights of employees with disabilities. Employer practices involving promotions, layoff, training, hiring, termination, benefits, and pay, are some of the most important areas where disabled workers have workplace protection.

Employers are required to make reasonable accommodations for their disabled workers to perform every job available to non-disabled workers. Employers are required to make adjustments to the workplace environment that accommodate a disabled worker’s disability so that the worker can perform the job equally to the non-disabled worker. For example, a wheelchair accessible ramp or doorway, as well as special chairs or workstation accommodations are the responsibility of the employer with disabled or handicapped workers. An employer may have to consider changing working hours if necessary.

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.

The legal definition of “disability” was changed by a federal law in 2008. The term now means a physical or mental impairment that produces a substantive limitation in one or more major life activities such as sight, hearing, learning, walking or talking. Temporary disabilities in these categories may also qualify as disabilities if they substantially limit a major life activity when occurring.

During an employment physical or employment interview, employers can only inquire into a disability of the applicant if documentation is required to evaluate the extent of the disability and its impact on the workplace. All such information obtained by an employer must be kept confidential.

So a disabled job applicant cannot be asked about the nature or severity of their disability. An employer may ask an applicant about their ability to perform essential tasks both with or without employer accommodation. A physical may not be required prior to being hired. Of course, an applicant cannot be denied employment because of a disability.

A 2008 federal law called the Genetic Information Non-Discrimination Act (GINA) forbids employer discrimination based on an employee’s genetic information. The law controls employer sharing and acquisition of such information as well. This law refers to genetic tests from medical histories of an employee or family members.

Examples of employer disability discrimination:

• An employee’s doctor has made a diagnosis but concludes the employee can still perform their job perhaps with some help. The employer refuses to provide that help, and eventually terminates, demotes or reassigns the employee.
• An employee with a history of a mental or physical illness or handicap is terminated, reassigned, demoted, or denied a promotion due to their previous disability.
• A job applicant is asked about prior mental disability, prescription drug use or prior workers compensation benefits.
• After being offered a job, the applicant takes a medical test (except a drug test) and then has the job offer withdrawn due to discovery of a physical or mental disability, despite the fact that the applicant can perform the job duties.
• An employee is made to pay for employer accommodations for a disability.

The law firm of Tarshish Cody PLC has experienced disability discrimination attorneys who will schedule a free initial consultation to discuss details of your specific case. Call 952-361-5556 (or fill out the free case evaluation form below).

Attorney Practicing In This Area

Kyle Kosieracki