Introduction
While discrimination in the workplace based on race, color, religion, national origin, and gender has been outlawed since 1964, discrimination based on an individual’s disability wasn’t addressed until 1990. That year, Congress passed the Americans with Disabilities Act (ADA), and finally extended federal protection to employees and job-seekers with disabilities.
Workers’ Rights under the Americans with Disabilities Act of 1990
Title I of the ADA prohibits employers from discriminating against employees and job-applicants who have a qualified disability and can adequately perform the essential job functions, with or without reasonable accommodations. The ADA is a federal law, and as such it extends to private companies, and federal, state, and local governments. An employer cannot consider a qualified applicant or employee’s disability when determining hiring, termination, promotions, assignments, benefits, compensation, or other employment-related activities. The ADA also guarantees disabled individuals have the right to file a complaint against an employer in violation of the law without fear of reprisal or retaliation from the employer.
What Qualifies as a Disability?
According to the ADA, a qualified disability consists of a physical or mental impairment that substantially limits a major life activity such as breathing, speaking, hearing, seeing, walking, and other manual activities. Note that the disability must be considered substantial—a minor or otherwise trivial impairment would not qualify. Under the ADA, you are protected from discrimination in the workplace If you currently have a qualifying disability, if you have a history of qualifying disabilities, and even if you are only perceived to have a qualifying disability.
What Does it Mean to “Adequately Perform Essential Job Functions”?
The ADA employment-protection right is only applicable if you can carry out the necessary functions for the job in question, with or without reasonable accommodations. That means an applicant with the required education, experience, and skills, cannot be disqualified based on their disability as long as they can perform the job’s essential activities. As long as you can handle the primary functions, you are protected from discrimination—even if your disability limits you from fulfilling some of the job’s unnecessary, secondary activities. For example, an applicant who is in a wheelchair shouldn’t be disqualified for a position as a cashier, as their disability doesn’t infringe on their ability to scan items and process payments. Such an employee may have a difficult time bagging and loading groceries, but that shouldn’t preclude them from working as the cashier.
However, if a disability prevents someone from performing the position’s essential activities, an employer can disqualify an applicant based on their inability to carry out the job’s core functions. For example, an applicant who is blind and cannot drive would probably not be hired as a driver for a delivery company. In that situation, there are no reasonable accommodations that could allow the applicant to perform the essential job function of driving the delivery vehicle.
What are Considered Reasonable Accommodations?
Reasonable accommodations include any measure to level the playing field for disabled employees that doesn’t place an undue burden on the employer. Undue hardship could be financial, such as an accommodation that would be too costly, or it could be something physical that significantly disrupts the employer’s business process. For example, it would be reasonable to provide a blind employee with a braille keyboard, or to allow a physically disabled employee to take extra breaks throughout the day. In contrast, having to install an elevator for a disabled employee would place an undue financial burden on the employer.
When considering reasonable accommodations for disabled employees, an employer is required to speak with the employee and get their input on what accommodations would be best. The employer is not required to accept the employee’s recommendations if there is another viable option, but they are required to determine the employee’s preferences.
Following is a list of common reasonable accommodations:
- A modified or flexible work schedule
- Adjusting employee policies and adapting employee training
- Modifying existing equipment
- Purchasing new adaptive equipment
- Making small adjustments to the workplace layout for greater accessibility
- Restructuring the job’s key responsibilities
- Transferring a disabled employee to another job within the company (with the same compensation and benefits as their original job)
- Providing interpreters
Can Employers Require Medical Examinations?
Employers cannot ask a disabled job-applicant to complete a medical exam before making them a job offer, but an employer can issue a job offer that is contingent on passing a medical exam if all employees are required to complete the exam. After completing a medical examination, the employer cannot use the results to disqualify an applicant for the position unless the results indicate that the applicant will not be able to perform the essential job functions, with or without reasonable accommodations.
Note that employees applying for unpaid time off through the Family and Medical Leave Act (FMLA) may be required to provide a doctor’s note confirming there is a qualifying medical condition or disability. Also, employees who apply for worker’s compensation due to an injury in the workplace may be required to complete a medical examination.
Who Enforces the ADA?
The US Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces against all forms of discrimination in the workplace, including disability discrimination. The only limitation is that the EEOC only has jurisdiction over companies with 15 or more employees, so some small businesses may be exempt. Public, state, and local employment is regulated by the US Department of Justice (DOJ).
Whistleblower Protection
Employees who are subject to discrimination in the workplace have the right to file a complaint with the EEOC or the DOJ. An employer cannot take retaliatory action (such as termination or demotion) against an employee who files a claim, or who is called as a witness in the course of a discrimination investigation or lawsuit. Protection against employer retaliation is commonly known as whistleblower protection.
How to Submit a Claim
To submit a claim against a private employer, you can submit a complaint on the EEOC’s website (click here). Once your complaint has been reviewed, you’ll be called in for an interview with an agent at the nearest EEOC office. If the interviewer determines your complaint is valid, you’ll sign a formal charge of discrimination against the employer, and the EEOC will launch an investigation. If the EEOC finds evidence of wrongdoing during the investigation, they can either reach a settlement with the employer, or they can pursue litigation in court.
For state, federal, and local government employees, you can file a complaint with the DOJ’s Civil Rights Division here.
Need Help With An Employment Law Issue?
The state of Arizona is a great place to live and work, but knowing the employment laws will help you a lot. Whether you are a newcomer to the state or a lifelong resident, understanding your workplace protections is good for your career, and the more you know, the better.
Call our Employment Law team at (480) 464-1111 to discuss your case today.