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Employment Law: Disability Discrimination

Image from Scott Akerman.

Image from Scott Akerman.

The Americans with Disabilities Act prevents employers from discriminating against their employees because they have a disability.  Sounds simple right? Well, there’s a little more to it than that. This article outlines the basics of the law of disability discrimination.

Who is Disabled?

Someone is disabled if they have a physical or mental impairment that substantially limits one or more major life activities, someone who has a record of having such an impairment, or someone who is regarded as having one. Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. An impairment to a major bodily function also counts as an impairment to a major life activity.

In addition, in working out whether a condition substantially affects a major life activity, courts lean in favor of finding that a person is disabled.  For example, if a condition comes and goes, it is a disability if it substantially limits a major life activity when it is active. Further, whether a condition is a disability is measured without considering the effects of medication, prosthetics, or other mitigating measures.

What are the Rules?

Like most other things, the rules seem simple: employers can’t discriminate against an employee on the basis of a disability. The definition of discrimination is also pretty straight forward. Discrimination includes treating employees differently in the job application process; in the the hiring, advancement, or discharge of employees; in employee compensation; in job training; and in other terms, conditions, and privileges of employment. Now, like most legal issues, everything gets more complicated from here on.

Part of the anti-discrimination part of the ADA requires employers to give disabled employees reasonable accommodations for their disabilities. A reasonable accommodation is something that makes it easier for the employee to cope with working with a disability. Now, that doesn’t mean an employer has to allow someone to not do their job, but if there’s a change in working conditions that allows a disabled employee to perform their job despite their disability, the employer must allow that change.

Further, employers can’t ask about medical conditions or make applicants take medical tests before being offered a job. They can, however, ask applicants whether they can fulfill the functions of the job and make them take a medical test before the start work. If employers use this kind of medical test, they must make every potential employee take the test and make sure all information is kept separate and confidential.

Employers aren’t liable under the ADA for discriminating against a disabled employer because of his or her disability if it can show that the discrimination was necessary to the operation of the business. For example, and employee is allowed to reassign an employee who has to lift heavy objects if that person is in a car wreck and can’t lift heavy objects any more.

What about Retaliation?

Employers may not retaliate against an employee for making a claim or requesting an accommodation under the ADA. Keep you eyes out for a future blog post about retaliation.  It’s in the works.