Virtually every employer knows that they cannot discriminate against their employees—especially those that are part of a protected class. Title VII of the Civil Rights Act prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. The U.S. Equal Employment Opportunity Commission (EEOC) extends this list further to include, for example, age, disability, and pregnancy. (For more information regarding the complete list of these classes, see www.eeoc.gov/laws/types/index.cfm).
Of these, perhaps the most ambiguous is the “disability” class, which is sometimes difficult to identify and protect. This may be because not all employers know what actually constitutes a disability, or it simply may be because they do not have the proper policies in place. However, once an employee adequately advises the employer of a qualifying disability, the employer must avoid discriminating against the employee—whether intentionally or inadvertently—because of it.
What qualifies as a disability?
Under Title I of the Americans with Disabilities Act (ADA), a person has a disability if he or she has, or has a record of having, a mental or physical impairment that substantially limits a major life activity. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.
An employee with a disability must be qualified to perform the essential functions of his or her job in order to be protected by the ADA. According to the EEOC, this means that the applicant or employee must satisfy the job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related, and be able to perform those tasks with or without reasonable accommodation. (See www.eeoc.gov/facts/ada17.html for more information).
How is it possible for an employer to unintentionally discriminate against an employee based on disability?
Unfortunately, there are various ways a company may unintentionally discriminate against an employee due to his or her disability. For example, take an employee who is not visibly disabled and does not appear to be a member of any protected class. This employee appropriately then informs his HR Department that he suffers from a hidden disability, such as a mental disorder, that causes him to miss work on occasion. Despite the company having knowledge of this disability, the employee’s manager is unaware of the condition and abruptly terminates the employee for occasionally missing work because of the disorder. This would be a potential violation of the ADA because the employer had requisite knowledge of the disability, and the manager terminated the employee because of it.
The same would be true for a person that had any type of non-visible signs of a disability and appears to have it regularly under control, such a person who has diabetes but takes insulin to control it. The employee would still be covered by the ADA because the determination as to whether a person has a disability is made without regard to mitigating measures, such as medications, reasonable accommodations, or aids. If an employee has a qualifying impairment, he or she is protected under the ADA regardless of the fact that the disease or condition or its effects may be corrected or controlled.
In addition, it is possible for the employer to discriminate against a person who does not even have the disability. For example, it is unlawful to discriminate against an applicant or employee, even if they themselves are not disabled, because of their family, business, social or other relationship with an individual with a disability.
How can my organization avoid violating the ADA?
First, determine if your organization is covered by the ADA. Discrimination against people with disabilities is illegal if practiced by private employers, employment agencies, state and local governments, labor organizations and labor-management committees. The part of the ADA enforced by the EEOC outlaws job discrimination by all employers, including state and local government employers with 15 or more employees. Note that another part of the ADA, enforced by the U.S. Department of Justice (DOJ), prohibits discrimination in any state and local government programs and activities, regardless of the number of employees.
If you determine that your organization falls under the umbrella of the ADA, you must gain an understanding of what actually constitutes a “disability” under the ADA. If unclear, guidance can be obtained from the EEOC, which even helps employers understand their responsibilities by conducting active technical assistance programs to promote voluntary compliance with the ADA. Assistance can also be obtained from other organizations, such as the DOJ, and/or from an attorney who has knowledge of employment law.
Next, develop a plan to ensure that your organization properly accommodates applicants or employees who have qualifying disabilities. An employer's obligation to provide reasonable accommodation applies only to known physical or mental limitations. But once that limitation is known by the proper person at the company, they may be required to make an adjustment to a job or work environment that permits a person with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Notably, however, it is not necessary to provide a reasonable accommodation if doing so would cause an undue hardship to the employer.
Next, make sure to address any violations as soon as they appear. It is a violation for the employer to be aware of such discrimination, but fail to take adequate measures to correct it. To that end, ensure that your organization is thoroughly documenting the measures it is taking to adhere to the ADA— even those that may seem insignificant. Documenting such efforts not only helps ensure ADA compliance, but is also useful in the event an employee takes action against your organization for an alleged violation.
Lastly, avoid unintentional discrimination by creating a policy to ensure that all covered practices are run past the person or Department within the organization that would have knowledge of any disability. Such covered practices include recruitment, pay, hiring, firing, job assignments, training, promotions, leave, lay-offs, benefits and all other employment related activities. This may sound burdensome to employer, but compliance with the ADA is required to ensure that all employees are given a fair opportunity, and failing to do so may also leave your organization open to legal liability.
This article is meant to be utilized as a general guideline for avoiding discrimination of employees based on disability. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
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