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Disability Discrimination

The Americans with Disabilities Act (ADA), signed into law in 1990, provides broad-based protection to disabled employees and job applicants. It prohibits employers, employment agencies, and labor unions from discriminating against an employee because of that employee’s disability.

A. Who Does The Act Protect?

The ADA protects employees or job applicants who have a disability, those who are “regarded as” disabled, and those who have a past record of a disability. Under the ADA, an individual has a disability if he or she has or is perceived to have a physical or mental impairment that:

  1. substantially limits one or more major life activities, such as walking, hearing, seeing, sitting, standing, sleeping, breathing, caring for oneself, lifting, bending, speaking, learning, reading, concentrating, thinking, communicating, working, or the performance of manual tasks; or
  2. substantially limits a major bodily function, such as functions of the immune system, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, or reproductive functions.

42 U.S.C. § 12102. The ADA protects “qualified individuals,” that is, employees who can perform the essential functions of a job with or without a reasonable accommodation (described below). 42 U.S.C. §§ 12111(a), 12112.

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act of 2008 (“ADA Amendments Act”) which went into effect on January 1, 2009. The Act significantly strengthened the protection of the ADA: it emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require the extensive analysis courts had previously required. The ADA Amendments Act rejects the holdings in several Supreme Court decisions and portions of the ADA regulations adopted by the U.S. Equal Employment Opportunity Commission (EEOC). The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

Previous to the ADA Amendments Act, the courts EEOC had interpreted the phrase “substantially limits” to mean “significantly restricted”. The ADA Amendments Act overturned the relevant Supreme Court cases, declared that “significantly limited” is too strict a standard, and directed the EEOC to revise that portion of its regulations. In determining whether an individual’s impairment substantially limits a major life activity, the ADA Amendments Act also changed the law by stating that mitigating measures (such as the use of medications or assistive equipment) are not to be used in the determination, except for normal eyeglasses. Though the statute still lacks significant interpretation from the courts, this may mean, for example, that a diabetic worker whose otherwise-debilitating symptoms are controlled by insulin –- a mitigating measure -– would still be considered to have a disability.

The ADA Amendments Act also clarifies that an impairment that is episodic or in remission is a disability under the ADA if it limits a major life activity when the impairment is active. 42 U.S.C. § 12102(4)(d). For example, epilepsy is an incapacitating impairment when a seizure strikes, but otherwise may be hidden. Pursuant to the ADA Amendments Act, most forms of epilepsy would be considered a disability under the ADA. Finally, the ADA Amendments Act changed the definition of “regarded as” disabled, so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity. Instead, the Act now provides that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (such as termination or failure to hire) based on an impairment that is neither minor nor transitory. 42 U.S.C. § 12102(3).

Though the ADA Amendments Act has been in effect only for a few months, the attorneys at Katz, Marshall & Banks, LLP are confident that the ADA Amendments Act has significantly enhanced the protection of the ADA and are enthusiastic about its potential to help a much larger group of employees who have suffered discrimination due to their disabilities than the ADA previously covered.

B. Who Is A Covered Employer Under The ADA?

The ADA applies to private, state, and local employers with 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. 42 U.S.C. § 12111. The ADA’s nondiscrimination standards also apply to federal sector employees, under section 501 of the Rehabilitation Act.

Employers with fewer than 15 employees may still be subject to the standards of the ADA through state or local laws that prohibit disability discrimination. For example, the District of Columbia Human Rights Act, which prohibits disability discrimination (as well as other forms of discrimination), applies to employers in the District of Columbia regardless of the number of employees.

C. What Practices Does The Act Prohibit?

  1. Discrimination:
    The ADA prohibits employers from discriminating against any individual with a disability because of that individual’s disability, perceived disability, or past record of disability, with regard to job applications, hiring, promotion, or discharge of employees, employee compensation, job training, and all other terms, conditions, and privileges of employment. 42 U.S.C. § 12111(a).This includes both discrimination based on disparate treatment and disparate impact. Discrimination based on disparate treatment occurs when an employer treats a disabled employee or applicant differently than it treats non-disabled individuals because of the employee’s or applicant’s disability, such as firing, not hiring, or not promoting the employee because of his or her disability. The ADA also prohibits disparate treatment in the form of “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of [his or her] disability.” 42 U.S.C. § 12112(b)(1). This means an employer cannot make assumptions that pigeonhole a person with a disability, or regarded as having a disability: for example, an employer cannot reject an applicant in a wheelchair for a position that requires travel if the rejection is based on the mistaken assumption that the applicant will not wish to travel or will be unable to do so. EEOC regulations also require employment activities to take place in an integrated manner, so that employees with disabilities are not segregated into separate work areas. 29 C.F.R. § 1630.5 app.The ADA also prohibits discrimination based on disparate impact. Disparate impact discrimination occurs when an employer uses employment tests, standards, or other selection criteria that intentionally or unintentionally exclude qualified individuals with a disability in a disproportionate manner. 42 U.S.C. § 12112(b)(6). These tests, standards, or other criteria may only be used if the employer shows it to be job-related for the position in question and consistent with a business necessity. For example, in one case, the court ruled that a rule prohibiting applicants with only one arm from becoming a security guard violated the ADA. Stillwell v. Kansas City Bd. of Police Comm’rs, 872 F. Supp. 682, 686-88 (W.D. Mo. 1995). In other cases, courts have found that the employer did show the standard was job related and consistent with a business necessity: for example, in Shannon v. N.Y. City Transit Auth., the court ruled that a transit authority rule requiring bus operators to be able to recognize and distinguish among the colors of traffic signals was valid. 189 F. Supp. 2d 55, 62, 64-65 (S.D.N.Y. 2002), aff’d, 332 F.3d 95 (2d Cir. 2003).
  2. Harassment:
    Disability-based harassment in the workplace is also prohibited. See, e.g., Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005) (recognizing hostile environment claims for federal employees pursuant to the Rehabilitation Act and applying Title VII standards); Lanman v. Johnson County, 393 F.3d 1151, 1155 (10th Cir. 2004) (recognizing hostile work environment claims under the ADA). An employee shows disability-based harassment by showing he or she has been subjected to hostile, offensive, or intimidating comments or conduct because of his or her disability. The harassment must be sufficiently severe or pervasive (i.e. frequent) to alter the conditions of the person’s employment and create a hostile working environment. See, e.g., Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 (4th Cir. 2004) (discussing prima facie case in ADA hostile work environment claims).
  3. Retaliation:
    Finally, the ADA prohibits retaliation against an employee for reporting, opposing, or complaining about treatment which he or she reasonably believes represents disability discrimination or harassment, e.g. reporting possible disability discrimination to one’s supervisor or human resources department, or providing information during an internal investigation into another employee’s disability complaint. An employee is covered by the anti-discrimination provision of the ADA regardless of whether he or she is opposing discrimination against him or herself, or discrimination against a coworker. The ADA also prohibits retaliation against an employee for participating in a proceeding asserting ADA rights, e.g. filing an EEOC charge, filing a lawsuit, or testifying in a deposition. Retaliation may come in the form of termination, demotion, denial of a promotion, denial of a bonus or other job benefit, poor performance review, being placed on a performance improvement plan, intimidation or threats, or even adverse treatment outside of the workplace. In order to prove that the adverse action was retaliatory, the employee must ultimately demonstrate that it was his or her reporting of possible disability discrimination, rather than some other reason –- such as poor performance, reorganization, layoffs, personality clashes, or violation of company policies –- that caused the adverse action.

D. Reasonable Accommodation For A Disability

The ADA allows a qualified individual with a disability to request a “reasonable accommodation,” that is, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 42 U.S.C. § 12112(b)(5); 29 C.F.R. § 1630.2(o) app. For example, an accommodation request may seek a physical modification to an employee’s equipment or work space, such as modified furniture or lighting; purchase of software or other assistive device, such as Braille readers or lifting or carrying devices; flexibility in one’s work schedule or work location; medical leave during a period of incapacity from work; specialized training or application process; modifying or granting exceptions to neutral policies (such as those regarding leaves of absence, part-time work, or eating on the job); transfer to an open equivalent position; or other request which helps the individual perform their duties or enjoy equal benefits and privileges of employment as enjoyed by other employees.

An individual need not use “magic words” when requesting a reasonable accommodation, or even mention the ADA, but must give the employer sufficient information to enable the employer to potentially identify the request as a request to accommodate a physical or mental impairment. The employer then has an obligation to engage in an interactive process with the employee, to determine if the individual is in fact covered by the ADA and, if so, what types of accommodation would satisfy the individual’s needs. The employer may generally request that the employee or his or her doctor provide relevant medical information to support their claim of disability.

An employer may fulfill its obligation by providing the disabled individual with an alternative accommodation to the one requested, so long as the alternative accommodation is reasonable and effective in meeting the individual’s needs. An employer need not provide a request for accommodation if the accommodation would cause it an undue hardship, e.g. a significant financial burden or interruption of its business operations, considering the size and nature of the employer. An employer’s failure to give a disabled individual a reasonable accommodation -– where such failure was the fault of the employer, and where there was no legitimate undue hardship –represents a form of disability discrimination under the ADA.

The employers’ obligation to provide accommodation is a continuing obligation. What is required may change over time as circumstances change.

E. Enforcement And Remedies

  1. Private, State, and Local Employees:
    An individual who has experienced a violation of the ADA may file a lawsuit in federal court. Before doing so, the individual must generally first file a charge with the EEOC as a prerequisite. Certain filing deadlines, generally ranging from 180 days to 300 days depending on the location and circumstances, apply to the filing of an EEOC charge. Other filing deadlines, filing procedures, and remedies may apply to disability discrimination, harassment, or retaliation claims brought under other statutes, such as the District of Columbia Human Rights Act or other state or local anti-discrimination laws.Remedies for private, state, and local government employees may include reimbursement for financial losses; compensatory (emotional pain and suffering) damages; punitive damages, if the employer acted with malice or reckless indifference to the employee’s federally protected rights; injunctive relief; and reimbursement for the employee’s attorneys’ fees and other legal costs. 42 U.S.C. § 1981a(a)(2). Certain limitations on compensatory and punitive damages may exist depending on the size and nature of the employer.
  2. Federal Employees:
    Many federal employees subjected to disability discrimination, harassment, or retaliation will file suit under the Rehabilitation Act, rather than the ADA, although the standards are generally the same as under the ADA. Federal employees must either make a complaint to an agency EEO counselor within 45 days of the alleged violation, or, if there is also a personnel action that would be subject to review by the Merit Systems Protection Board (MSPB), they may appeal the employment decision directly to the MSPB within 30 days of receipt of a final agency decision. Federal employees employed by Congress or related agencies may have up to 180 days to make a complaint to the congressional Office of Compliance.Federal employees successful in their disability claim may also be eligible to receive financial damages, compensatory damages, injunctive relief, and reimbursement for attorneys’ fees and costs, although punitive damages are generally not available against the federal government.

If you are experiencing – or have already experienced – disability discrimination that you are thinking about reporting, or if you have already reported such discrimination and are facing retaliation, contact the experienced lawyers at Katz, Marshall & Banks for an evaluation of your case with no further obligation.