15 Things You Need to Know About Disability Discrimination
If you have an impairment that substantially limits a major life activity, you might be covered under the Americans With Disabilities Act. Many people are confused about their rights and responsibilities if they have a covered disability, and whether or not they are covered.
Here are 15 things you need to know about disability discrimination.
1. Covered impairment
Your impairment can be physical or mental. Homosexuality, pregnancy, weight, and height are not considered disabilities. (Pregnancy is covered as a separate type of discrimination.) The disability doesn't have to be permanent. Temporary impairments that take significantly longer than normal to heal, long-term impairments, or potentially long-term impairments of indefinite duration may be disabilities if they are severe.
2. Covered employer
Your employer is only bound by the Americans With Disabilities Act if it has 15 or more employees. Your state, city or county may have anti-discrimination laws that apply to smaller employers.
3. Major life activities
Your disability must substantially limit a major life activity, such as caring for yourself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, thinking, concentrating, and interacting with others.
4. Substantially limiting
In order to be covered, the disability must prohibit or significantly restrict your ability to perform a major life activity compared with average people. Courts will weigh the nature and severity, the duration or expected duration, and the permanent or long-term impact of the impairment.
5. Ability to work
The impairment substantially limits the ability to work if it prevents or significantly restricts you from performing a class of jobs or a broad range of jobs in various classes (as opposed to your specific job).
6. Record of disability
Even if you aren't disabled currently, you might be protected if you have a record of disability. That means you either have a history of a substantially limiting impairment or have been misclassified as having a substantially limiting impairment.
7. Regarded as disabled
If your employer regards you as disabled, then you're also protected against discrimination. You're covered if you: have an impairment that doesn't substantially limit major life activities, but your employer treats you as if you do; have an impairment that substantially limits major life activities only as a result of the attitudes of others toward your impairment; or have no impairment, but your employer treats you as if you do. A good example of this is if your supervisor suddenly assumes that you have AIDS because you lost weight.
8. Drug addiction
You're not covered if you're currently using illegal drugs. If you have kicked the habit or the company only assumes you're an addict, you're protected.
If you need an accommodation in order to perform all the duties of your job, you need to request it from your employer. They can't deny a reasonable accommodation unless it's an undue hardship.
How do you prove discrimination based on disability? Biased comments by supervisors could be evidence that their decision was because of your disability. Referring to you as the "gimp," saying they don't want your image to represent the company, making fun of your disability, commenting that you're causing the company's insurance rates to go up, or similar statements could be direct evidence of disability discrimination.
Most supervisors aren't that obvious. You can look at others treated differently under the same circumstances. If non-disabled people were kept on in a layoff and disabled employees are targeted, disability discrimination might be involved. If you become ill and are suddenly targeted for negative performance reviews and write-for stuff other employees do, too, then you might have a disability discrimination claim.
Anything that doesn't affect you in the wallet is in the category of harassment. Your employer can't make you miserable due to your disability, to try to get you to quit. You can't be called names and made fun of due to your disability either.
12 What to do?
If it's harassment, you have to report it first under the company's policy for reporting harassment and give them a chance to fix the situation. Only if they don't fix it or if the harassment continues can you file a charge of discrimination with the EEOC or your state agency.
If it's an adverse employment action, like a denial of a promotion, a demotion, a suspension without pay, or a termination/layoff, you must file a charge of discrimination with the EEOC or your state agency before you can sue.
13. Light duty
Be careful if your company encourages you to apply for light duty. In order to be protected against disability discrimination, you have to be able to perform ALL the essential duties of your job (even if you need an accommodation to do so). Once you fill out papers saying that you can't do something essential, you may no longer have a covered disability under the law.
14. Medical leave
If you need occasional appointments for medical treatment, you might also qualify for intermittent Family and Medical Leave. If you take FMLA leave for a disability-related illness and need more time, then you might be entitled to a longer leave under the Americans With Disabilities Act as a reasonable accommodation.
If you're presented with a severance agreement and think you're targeted for layoff due to your disability, you might be able to negotiate a better severance package.
When in doubt, read your handbook carefully. Follow all your company policies for requesting accommodations or medical leave. If you need help or feel you've been discriminated against due to your disability, contact an employment lawyer in your state to get advice.
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Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase.Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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