Disability discrimination in the workplace occurs when an employer treats an individual negatively because they have a disability or have a history of disability. Disability discrimination can only occur within employers or at entities that are covered by the Rehabilitation Act or the Americans with Disabilities Act. Otherwise, there may be state protections, but not federal ones.
What Is Considered a Disability?
To be protected by the law, you must have a physical or mental disability that hinders your normal activity. You’re also protected if you have a history of a disability or if your employer believes you have a disability but you actually don’t. You must have documentation supporting that your disability is major and restricts your:
- Seeing
- Hearing
- Speaking
- Breathing
- Walking
- Self-care
- Working
- Performing tasks
- Learning
Your employer is only required to accommodate you based on your known disabilities, so if you don’t inform the company of your impairment and your accommodation needs and it doesn’t make necessary adjustments, it isn’t actually discriminating against you.
In some cases, you may be treated as disabled due to your medical history or your employer’s perceptions of you. An example of this is if you work for a company and are diagnosed with cancer. You stay employed during your battle with cancer and successfully go into remission. Now your employer denies you a promotion because of fear your cancer may come back and cause you to miss work in the future.
Mental health discrimination also isn’t easy to spot. Such health issues are typically kept private out of fear of adverse reactions and attitudes. When an issue is acknowledged or make public, it can be stigmatized and the employee’s fears confirmed.
It’s illegal for employers to ask you medical or mental health questions unless one the following situations arise:
- You request reasonable accommodations.
- You accept an offer but haven’t started yet, and all similar employees are asked the same questions.
- You are asked as part of affirmative action measurements, but can decline to respond.
- You are unable to do your job and there is objective evidence to prove you could post a safety risk.
Mental health discrimination can occur even if your condition is controlled. Some employers assume that individuals with a mental health condition aren’t fit to work. Employers could hesitate to hire someone taking antipsychotic medications or dismiss an employee after finding out about their mental illness.
All of these actions are forms of illegal discrimination, but unfortunately that fact doesn’t prevent it from happening.
The Difference Between Essential and Non-Essential Job Functions
Even though you may have a disability, you must be otherwise qualified to perform the duties of your job with or without accommodations. This applies to essential job functions, and an employer can’t deny you a job because you can’t perform other non-essential duties.
What Are Examples of Disability Discrimination?
Disability discrimination can occur directly or indirectly and can happen at any point from the application process to when you’re actively working a job. It’s important to be able to recognize the types of discrimination and what they may look like to help you realize if it’s happening to you or not. Here are a few different forms of discrimination we’ve run across in our cases.
- Direct Discrimination: An employee with a known disability is treated negatively for no reason other than their disability. For example, an employee with a minor mental health problem is kept away from customers, even though they have great people and conversational skills. This is considered direct discrimination because it was intentional action by the employer in reaction to the employee’s disability. The action was discriminatory based on a stigma and stereotype of mental health issues, and is against the law.
- Indirect Discrimination: An employer unintentionally discriminates against an employee with a disability because they are unaware of the disability. For example, an employer sends a company memo that includes pertinent job information for the week, but doesn’t hold a meeting to discuss it. This makes it difficult for an employee — with an undisclosed learning disability that reduces their reading comprehension — to understand the information.By not holding a meeting, the employer may have prevented the employee from meeting requirements that week. The employer didn’t provide reasonable accommodations for this employee because they were unaware of the disability, so therefore there is no illegal discrimination in this case. The employee has a responsibility to notify their employer of any disabilities so reasonable accommodations may be made.
- Job Interview Questions: An employer may ask you if you can perform the job duties with your disability and can ask for an explanation of why and how you’re capable. However, an employer may not ask you specific medical questions about your disability or ask you if you have a disability.
- Medical or Physical Exam: An employer can’t require you to take a medical or physical exam before giving you a job unless all applicants have to take the same exam.
- Denial of Health Insurance: Your employer may not deny you access to the same health insurance as all other employees just because you have a disability and may have more expensive medical care needs. The same coverage must be offered to all employees.
Reasonable Accommodations Requirements
Your employer is required to provide what’s considered reasonable accommodations to you in order to help you perform your job duties. An accommodation is considered any change in the work environment or the process to help a disabled person perform the job or even apply to one.
Reasonable accommodations will vary from employee to employee and job to job, but some examples include:
- Modifying work schedules, job reassignment or job restructuring
- Modifying existing facilities to make them accessible to employees with disabilities
- Modifying existing or purchasing new equipment, devices, policies, training materials or examinations
- Providing an interpreter or a qualified reader
A few real-world examples include a deaf applicant needing an interpreter for sign language during an interview, a blind employee needing essential job reading material in braille, or an employee who can’t stand for long periods of time due to their disability being offered a chair to rest when needed.
An employer doesn’t have to provide accommodations if doing so would cause a significant expense or difficulty. Everything from the nature of the accommodation to the cost to the nature of the business to past accommodation expenses are considered when determining an undue hardship. Employers can’t simply say an accommodation is too expensive, however, because there are vocational rehabilitation funds and tax deductions/credit that may help offset the cost.
Furthermore, an employer doesn’t have to provide any accommodation unless an employee asks for one. It is the responsibility of the disabled employee or applicant, or their family, to let the employer know of the disability and the need for accommodation.
Reach Out to an EEOC Lawyer to Start Your Disability Discrimination Case
If you feel you’ve been discriminated against due to your disability, you may want to contact the EEOC or hire an EEOC lawyer to help you determine if you have a case or not. In general, you have a limited amount of time to file a discrimination charge, so the sooner the better in most cases. Get in touch with
Weisberg Cummings, P.C., at (855) 716-2367 to request a free consultation.
