Discrimination & Harassment

Disability & Reasonable Accommodation

The Americans with Disabilities Act (“ADA”)

The Americans With Disabilities Act (ADA) prohibits employers with fifteen or more employees from discriminating against qualified individuals with disabilities and requires covered employers to provide reasonable accommodation to disabled employees, unless doing so would be an undue hardship to the employer (explained further below). A “qualified individual” with a disability is someone who is capable of performing the essential functions of the job, either with or without reasonable accommodation. The ADA and the ADA guidelines recognize two forms of discrimination: disparate treatment (based on actual or perceived disability) and failure to accommodate.

Disparate Treatment

Disparate treatment occurs when an employer limits, segregates, or classifies a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee, and does so because of an actual or perceived disability. Such adverse treatment can take many forms, including:

  • refusing to hire an individual because of an actual or perceived disability;
  • taking disciplinary action against an employee for taking time off because of a mental or physical disability;
  • being denied the same opportunities or access to promotion as non-disabled employees;
  • being terminated after disclosing a disability to the employer; or
  • being terminated for requesting an accommodation for a disability.

Perceived Disability Discrimination

Perceived or “regarded as” disability discrimination involves adverse treatment that occurs because the employer perceives or regards an employee to be disabled because of a belief (mistaken or true) that the employee is disabled, or has an unfair bias against people with a particular physical or mental health condition. Perceived disability, generally, involves a prejudice or stereotype about a particular disabling condition and/or a fear that a disability or medical condition may get worse at some point in the future.

Reasonable Accommodations

The ADA and the ADA guidelines also require employers to make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual, if the accommodations are necessary to enable the individual to do the essential functions of his or her job. The employee must show that the employer was aware of the disability and still failed to reasonably accommodate it. Employers are required to engage in an “interactive process,” which is a dialogue, with disabled employees to determine if a reasonable accommodation is possible. However, employers are not required to make accommodations that will cause them “undue hardship.” Under the ADA “undue hardship” means significant difficulty or expense, based on the facts and circumstances of a particular workplace and employer.

The Equal Employment Opportunity Commission (EEOC), which is the federal agency that enforces the ADA and the ADA guidelines, recognizes three main categories of accommodations that it deems reasonable:

  • changes to the job application process that allow qualified disabled candidates to be considered for a position;
  • changes to the manner in which a job is usually performed or modifications to the work environment that will allow the employee to perform the essential job functions; or
  • changes that allow the disabled employee to enjoy the same privileges or benefits of employment as non-disabled employees.

The ADA Guidelines provide the following non-exhaustive list of examples of job accommodations that are considered reasonable:

  • training materials or policies regarding a certain condition or disability;
  • adjustment or modification of examinations;
  • job restructuring;
  • providing qualified interpreters or readers;
  • adjustment or modification of equipment or devices;
  • modification of facilities used by employees to make them accessible and usable for disabled employees;
  • modified or part-time work schedules; or
  • reassignment or transfer to a vacant position.

New York City Human Rights Law

The New York City Human Rights Law also protects against discrimination on the basis of disability and applies to employers with 4 or more employees. With more expansive definitions of disability and reasonable accommodation, the New York City Human Rights Law provides greater protections for employees than the ADA. Outten & Golden is experienced with both laws and can apply them to help individuals who have suffered employment discrimination based on their actual or perceived disabilities.

Illinois Human Rights Act

The Illinois Human Rights Act (IHRA) also prohibits discrimination on the basis of disability and applies to employers with 15 or more employees. The definition of who is a qualified individual with a disability is more expansive under the IHRA. Outten & Golden is experienced with the ADA and IHRA, and can apply them to help individuals who have suffered employment discrimination based on their actual or perceived disabilities.

California Disability Discrimination Law

The California Fair Employment and Housing Act (FEHA) prohibits discrimination against an applicant or employee on the basis of an actual or perceived physical or mental disability or medical condition, unless the condition prevents the employee from performing the essential job functions or affects the health and safety of the individual or fellow employees. FEHA also prohibits discrimination based on an individual's genetic information and harassment based on an actual or perceived protected characteristic. FEHA covers private employers with 5 or more employees and all public employers, and the prohibitions against disability harassment apply to all public and private employers, regardless of size. Effective January 1, 2016, FEHA also expressly prohibits employers from retaliating against an individual/employee who requested an accommodation for a disability, even if the accommodation was granted.

District of Columbia Human Rights Law

District of Columbia Human Rights Law (DCHRA) prohibits discrimination against an applicant or employee on the basis of an actual or perceived physical or mental disability or medical condition. While the federal laws against employment discrimination apply to employers that employ 15 or more employees, the DCHRA covers all employers in the District regardless of size. Under the DCHRA there are no caps on emotional and punitive damages. In addition, the DCHRA provides for broader family leave act protections. Employees who qualify for Family Medical Leave under the Federal FMLA are entitled to 12 weeks of unpaid leave and must have worked for the employer for 1250 hours in the preceding 12-month period. The District of Columbia FMLA; however, allows qualifying employees to 16 weeks of unpaid Medical Leave and 16 weeks of unpaid Family Leave. In addition, the minimum hour requirement is reduced to 1,000 for employees who worked the preceding calendar year. Outten & Golden is experienced with the ADA and DCHRA and can apply them to help individuals who have suffered employment discrimination based on their actual or perceived disabilities.

Contact Disability & Reasonable Accommodation Lawyers

Outten & Golden attorneys are committed to preserving the rights of disabled individuals to work and receive the same treatment as other employees. We represent employees who have lost their jobs, been demoted, or suffered other adverse employment actions because they had a disability, because their employers believed they had a disability, or because the employer unreasonably refused to accommodate their disability.

If you believe you have been subjected to disability discrimination and/or have been denied a reasonable accommodation of your medical condition, please contact the firm through the ”Contact Us" form or by calling us in the New York, San Francisco or Washington, DC office (see bottom of page for phone numbers) to begin the Outten & Golden intake process.

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