Frequently Asked Questions Around Disability Discrimination
When someone suspects their disability was the reason they were rejected from a job, fired or put on a reduced schedule, there are many questions that arise including:
Am I protected under disability discrimination laws?
Disability Discrimination Attorney: The ADA and Ohio disability discrimination laws covers “qualified individuals with disabilities,” which is defined to mean both job applicants and current employees. You will be covered by disability discrimination laws: (1) you have a physical or mental impairment that substantially limits one or more of your major life activities; (2) you have a record of such a physical or mental impairment; (3) your boss, supervisor, or manager regards you as having a physical or mental impairment; or (4) you have a known association or are related to a person with a disability
But, what does it mean to be “qualified” under disability discrimination laws?
Disability Discrimination Attorney: The term “qualified” means that you meet the legitimate skill, experience, education, or other requirements of the employment position that you are currently in or are applying for. This also means that you are capable of performing the essential job functions of the position with or without reasonable accommodation.
Under the Americans With Disabilities Act, what is “reasonable accommodation”? What does my company have to do to help me do my job if I am disabled?
Disability Discrimination Attorney: Very simply, “reasonable accommodation” means any modification or adjustment to your job or the work environment that will allow you, as a qualified employee with a disability, to do the essential job functions. Reasonable accommodation can include providing or modifying equipment; making structural changes to existing facilities to allow accessibility by disabled workers; altering work schedules; and using qualified readers or interpreters.
How do I know what essential job functions are on my job?
Disability Discrimination Attorney: The first place to look is to see if there is a written job description as part of an employee handbook, training manual, or advertising material. Obviously, if a company or employer does not list the job function in such materials, it cannot be an essential job function. Absent such material, this may become a question of fact based on the testimony of other employees that have performed the job and supervisor in that department. A question of fact always favors the employee because that means the debate should be settled by a jury as opposed to the judge.
Does my company have to make a reasonable accommodation to allow me to do my job with my disability?
Disability Discrimination Attorney: Your boss/employer is only required to provide a reasonable accommodation for a “known” disability. Typically, the requirement to provide a reasonable disability accommodation will be initiated as a result of a request by a disabled worker for the accommodation. If you have not requested an accommodation for your disability then your boss or manager does not have to provide one. Moreover, because your manager or supervisor may lie about it later, it is always best to make your requests in writing and send it to your boss or HR in a way that delivery can be confirmed, such as email or fax.
Does my boss/employer have to give me the disability accommodation that I ask for?
Disability Discrimination Attorney: No. Your job is not required to provide your requested accommodation if that accommodation would cause an “undue hardship” on the company’s business operations. “Undue hardship” is defined as an “action requiring significant difficulty or expense” when considering the nature and cost of the accommodation as compared to the size, resources, nature, and structure of the company that you work for. This analysis must be individually considered on a case by case situation. If your boss or manager believes that the accommodation requested by you creates an undue hardship, the company must work with you to identify different possible accommodation that would not create such a hardship. This is called an interactive process. You should also note that if your boss points to a significant cost as the basis of the undue hardship, you must be given the opportunity to pay for the cost above the point where it becomes an undue hardship.
What if my company/HR will not work with me to identify a compromise workplace accommodation for my disability?
Disability Discrimination Attorney: If an employer refuses to engage in the interactive process, it has violated the law. Many bosses, managers, and supervisors have argued that there was no reason to engage in the interactive process because all accommodations would be unduly burdensome to the employer. This argument will not prevail for the employer as the Americans with Disabilities Act and Ohio law require the employer to at least have some dialog about accommodating your disability.
Can I be fired or denied a position because my disability prevents me from doing smaller parts of the job?
Disability Discrimination Attorney: The requirements under the ADA and Ohio disability discrimination laws that you have the ability to do “essential” job functions means that workers, such as you, with a disability, will not be found unqualified just because of difficulty performing smaller or incidental job functions. If you are qualified to do the essential job functions except for the limitations due to your disability, your boss is required to evaluate if you could do the job with reasonably provided accommodations. If you are otherwise the best candidate for the position, you should get the job.
What types of questions can an interviewer ask a disabled applicant? Can I be asked during an interview about my disability?
Disability Discrimination Attorney: While trying to fill a position, a potential employer is not permitted to ask an applicant or person interviewing anything about a disability or a perceived disability. This means that the interviewer cannot ask questions about the nature or severity of your disability. An interview is permitted to ask disabled applicant questions about the ability to perform specific job functions. This may include questions that require the applicant to describe or even demonstrate how to perform particular essential job functions.
Can a job that I am applying for make me undergo medical examinations and answer questions about my disabilities?
Disability Discrimination Attorney: Companies are not permitted to force or even ask an applicant for the position to undergo even a single medical examination before making a job offer. However, if required of all new employees in the same job category, a company may make a job offer contingent on the applicant passing a post-offer medical examination. Critically, a post-offer required medical exam can only disqualify an applicant if the company can show that continuing through with the offer would pose a significant risk of substantial harm to the health or safety of the applicant or other workers; and that substantial risk cannot be eliminated or reduced to an acceptable level with reasonable accommodation.
As a disabled worker, can my boss make me take medical examinations?
Disability Discrimination Attorney: Assuming that you have already started your job and been working, your company or manager can only conduct medical examinations in certain circumstances that are job-related and consistent with business necessity. Companies may require medical exams for employees where there is: (1) an indication of a job performance or safety problem; (2) federal or state laws requiring medical examinations; (3) standard medical exams given to all employees in a given position in order to evaluate fitness to perform a particular job; (4) an employee health program that provides for voluntary medical examinations; (5) standard, periodic, or cause-driven policies for drug tests. Importantly, all the results and other medical reports from employer required examinations must be kept in a separate file apart from the regular personnel file. The release of confidential medical information can be and adverse action necessary to support a disability discrimination or retaliation claim.
As an alcoholic, am I covered by the ADA? Is my alcoholism or drug addiction a covered disability?
Disability Discrimination Attorney: Recovering alcoholics and drug addicts are considered disabled, but current users of drugs are not protected. Current users of alcohol that are in a recovery program may have some employment law protections available to them. Your boss, manager or supervisor can still discipline or fire you if your use of alcohol negatively affects your ability to perform your job. Obviously, your company is allowed to forbid alcohol and drug use in the workplace and can prohibit employees from being under the influence of alcohol or drugs while at work.
I was fired because I’m disabled; can I sue? Do I have a claim for disability discrimination or wrongful termination?
Disability Discrimination Attorney: Unfortunately, some employers will fire you before or after providing an accommodation. Our employment law attorneys have provided as much information as we possibly can on this website, but an evaluation of your particular chances to prevail on a claim for disability discrimination and wrongful termination cannot be done without a discussion regarding the particular facts relating to your termination and employment situation. Because our employment law attorneys fight for employees’ rights every day, we offer a free initial consultation for Ohio claims. It is not worth guessing about your possible rights and claims when a call or filling out a submission to the right can get you a free answer.
What are the most common disabilities that are discriminated against at work?
Disability Discrimination Attorney: First, your disability does not need to be on this list for you to have a protected disability.
- At 19.1% of all ADA claims, a back and/or spinal injury is the most frequent basis for disability accommodation requests and employment discrimination claims. Typically, accommodations for back and spinal conditions are lifting restrictions and light-duty, but may also include such disability accommodations as the employer providing an ergonomically correct chair, a lowered monitor, and/or a reduced work schedule.
- At 11.7% of ADA claims, psychiatric and/or mental disabilities are the second most common reason for employees to request a disability accommodation or to file a disability discrimination claim. This includes claims and requests for accommodation based on an employee’s depression, anxiety, bipolar disorder\manic depression, post-traumatic stress disorder, and other psychological problems. Accommodations for psychiatric and/or mental disabilities may include a transfer to a different open or vacant position, schedule modification, extra time off, and/or reduction of noise.
- Tied for the second most common disability claims and requests for accommodations are neurological impairments, which include epilepsy, severe migraine headaches, and nervous system disorders. Accommodations for neurological disabilities may include modified or flexible work schedules, extra time off, and/or reduction of noise.
- In fourth place at 8.1% of all disability claims and accommodation requests is the general category of extremity impairments, which obviously includes medical conditions and disabilities associated with employee’s arms, legs, hands and feet.
- Heart conditions and impairments rank as the fifth most frequent disability charges and accommodation requests at 4.4%. Reasonable accommodations for heart conditions may include lifting restrictions and a reduction of strenuous or cardiovascular activities.
- Next, 3.5% of requests for accommodation and disability claims are based on alcohol or drug addiction, for which the most typical accommodation may be time off to attend in or outpatient treatment. For example, allowing a recovering alcoholic flex time twice a week in order to make AA meetings may be a reasonable disability accommodation by an employer.
- Also, diabetes accounts for 3.5% of requests for accommodation and disability claims. The legislative history of the ADA specifically identifies diabetes as a physical impairment constituting a disability. Accommodations for diabetes may include extra breaks or allowing an employee to keep food at his or her workstation.
- Employees with hearing impairments, including deaf workers, account for 3% of disability discrimination claims and requests for accommodations at work. Obvious accommodations for hearing impaired and deaf workers include the employer providing a text telephone system (TTY), a sign language interpreter during meetings, or additional written training materials.
- Employees with vision impairments, including blind workers, tally 2.8% of ADA claims and requests for disability accommodations. For visually impaired employees, reasonable accommodations may include the employer to provide reading assistants, larger monitors, brighter lights or other equipment.
Even if your disability does not fall within the list of the top ten disabilities, you should still discuss your situation with a disability employment discrimination lawyer.
DISCLAIMER: These answers do not constitute legal advice or guidance.