Protections Under ADA – What Are Some Ins and Outs?

May 20, 2016

One of the more common adverse actions experienced by employees are violations of the Americans with Disabilities Act of 1990. Because of the broad and inclusive nature of this act, a necessary step in protecting the vast range of disabilities an employee may have, it can sometimes be hard to fully interpret and know when one has become the victim of discrimination as outlined in the Act itself. Many times, people may have their rights infringed upon without even realizing it. This is a terrible situation as the individual is attempting to live their life and contribute to society, only to have health or physical impairments cause them to be treated unfairly or even terminated from their place of employment. As with any other right, it is important to know what you, as an employee, are entitled to as provisioned by federal law to assure that you can take all necessary steps to protect yourself and successfully overcome any discrimination that you may encounter (because this Act is federal, this article will not address state laws and affiliated organizations. Depending on your state, you may be entitled to further protections and remedies. It is necessary to consult with an attorney regarding your state’s disability laws). To help navigate the often confusing and hard to interpret laws protecting those with disabilities, I would like to highlight and discuss some key points. As always, it is important to reiterate that this is a complex Act which applies to complex situations. The following is presented merely as a guide and discourse on the subject, but of course the best thing to do if you feel that you have experienced discrimination because of disability is to contact an attorney specializing in this area of law for a consultation.

First, let us establish what criteria the Act uses to classify an employee as disabled. Ultimately, it reduces down to three things; 1) an employee who has a physical or mental impairment that substantially limits one or more major life activities; 2) has a record of such impairment; and/or 3) is regarded as having such an impairment. The second designation is a bit less straight forward than the other two but essentially means that even if an individual is not currently suffering from a mental or physical impairment, having a “record of” the ailment, meaning a history or even a previous misclassification of the ailment, will still allow them to be classified as disabled. Also, it must be noted that a requirement of accommodations is not necessary to qualify as disabled; however, employers are required to accommodate a disabled employee if necessary. It is important to remember that psychological conditions also qualify as disabilities including depression, anxiety, and PTSD to name a few. The mental and psychological aspect of the Act was expanded and clarified in 2008 and will be explained in great detail in a future article.

Now that we have established the qualifying criteria as set forth in the Act, we must next examine how a disabled worker fits into the workforce, from applying for the job through long term employment. A qualified applicant, who is disabled, is one who can perform the job they are applying for with or without reasonable accommodation from the employer. This means that an applicant cannot be rejected simply on the grounds that they are disabled. For example, as long as someone who suffers from diabetes is able to perform the necessary functions of their job, it is required of the employer that they allow the employee periodic breaks to eat properly and monitor insulin levels in care of their diabetes. The idea is that the employer is expected to provide an equal workplace where all employees can thrive and succeed, inclusive of those employees requiring extra care to reach their potential. This does not mean that an employer is expected to suffer “undue hardship” when accommodating a disabled employee. Defining “undue hardship” varies from employer to employer based on their size, financial resources, and nature of operation. In conjunction with this, an employer is not expected to compromise their quality or output levels. It is necessary that an individual with disabilities alert their employer to what accommodations they will need to be successful; the employer is not expected to preemptively provide what it feels the employee may need. It is critical that, if you have any type of ailment or condition that may impact your performance or prohibit you from success under normal workplace conditions, you alert your employer and make sure that they not only acknowledge the situation, but proactively seek to help you succeed.

To protect employees’ rights to privacy, an employer is expected to maintain confidentiality with any protected health information or records they receive regarding an employee. This extends even to any requests for accommodations an employee makes. An employer is strictly prohibited from disclosing any information related to the employee including related information that doesn’t contain a diagnosis, or that wasn’t generated by a doctor. This encourages the applicant/employee to disclose the disability and seek accommodations without fear of being ridiculed, discriminated against, or even ostracized within the workplace. It is important here to note that, although illicit drug and alcohol abuse may be considered mental and physical impairments, employers can still hold drug and alcohol users to the same standards as other employees. If an employee or applicant tests positive for either one in violation of company policy or state and federal law, an employer may terminate them at will.

With the framework set forth, let us now turn to how this Act applies to you. If you feel that you have been discriminated against as a result of any disability, you may have legal recourse. Being denied a job, denied reasonable accommodations, passed over for promotion, or suffering other adverse actions is in direct violation of this law and may subject your employer to administrative fines, and/or legal recourse. Should this happen to you, it is important that you report violations to your human resources department, or its equivalent, within your organization so that the violation can be dealt with internally. Should the response to your complaint be insufficient, or worse, outright ignored, the next step may be to file a complaint with the Equal Employment Opportunities Commission (EEOC). This federal commission investigates violation charges and sanctions employers when necessary. It is also the organization that issues an employee the right to sue their employer for alleged violations. Though it is illegal, should you experience further adverse actions in response to a levied charge, these actions may constitute retaliation. This is in further violation of the law, and may open an employer to punitive damages in complement to compensatory damages as well as further sanctions. It is vehemently illegal for an employer to infringe upon an employee’s right to call forth illegal discriminatory actions and retaliation is many times dealt with harshly.

If you feel that you have suffered adverse actions and discrimination in your workplace due to disability, it is important that you do not hesitate to contact an attorney for a consultation. There can be time limits and other restrictions on recourse and you shouldn’t miss an opportunity for justice by being barred by technicalities. We here at Fears Nachawati specialize in handling these types of claims and will do everything in our power to obtain justice and compensation on your behalf. Please give us a call at (214) 890-0711 today to discuss your situation and see if we can help you!

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