Areas of Practice

Disability / Handicap Discrimination

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., prohibits employers from taking adverse action (for example refusal to hire, termination, or failing to promote) against an individual because he or she has a disability. However, not all physical ailments qualify as a disability.

To establish a claim under the ADA, you will be required to demonstrate the elements as follows:

1. you suffer from a disability;
2. you are qualified for the job with or without “reasonable accommodations";
3. you suffered an adverse employment decision based solely on your disability;
4. your employer knew or had reason to know of your disability; and
5. the position remained open while your employer sought other applications, you were replaced with another individual, or your employer failed to provide reasonable accommodations.

If your employer offers a legitimate, non discriminatory reason for the adverse employment decision, you will be required to demonstrate that that reason is pretextual and the real reason for the adverse decision was based solely on your disability.

What qualifies as a disability under the ADA?

To establish a disability under the ADA you are required to show as follows:

1. a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working;
2. a record of a physical or mental impairment; or
3. that you are regarded as having a physical or mental impairment.

Courts have been hesitant to classify a particular physical or mental impairment as a disability. The focus is not on what kind of physical or mental impairment you have, instead, the focus is on how that disability affects your ability to perform tasks. Each case is different and will require an individualized inquiry to determine if you are disabled for the purposes of the ADA.

What are “reasonable accommodations?"

Employers can violate the ADA by refusing to make reasonable accommodations for the known physical and mental limitations of an otherwise qualified individual with a disability. Reasonable accommodations include:

1. making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
2. restructuring a job, modifying a work schedule, or, making other similar accommodations for individuals with disabilities; or
3. a transfer to an available position that you can perform the essential function with your disability.

However, employers are not required to make accommodations that are unreasonable or would impose an undue burden on them. You should speak with an attorney that specializes in employment law to determine if the accommodations that you seek or need are reasonable.

Is my employer required to follow the ADA?

Not all employers are required to adhere to the ADA. The ADA only applies to employers that have 15 or more employees working each day at least 20 weeks in the previous year.

Timing

If you feel that you are being discriminated against, on the basis of a disability, it is important to take immediate action to preserve your rights. You are required to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days after the alleged wrongful employment practice. If after the EEOC investigates and decides that they will not pursue your matter, they will notify you of their decision and within 90 days of that notice, you can file a civil suit against your employer in court.

If you feel that your employer has discriminated against you because of your disability, you should contact an attorney that is experienced in employment law to protect your rights. You may contact us by completing a confidential case analysis form or by calling us directly at (330) 258-8000.

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