Disability

Discrimination occurs in all shapes and forms. Fortunately, there are laws and protections that make it unlawful to harass an applicant or employee because s/he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less). Each case has its own unique set of facts and circumstances.

While the Americans with Disabilities Act of 1990 (the "ADA") provides relief and recourse for many individuals, it can be very difficult to navigate. Thus, your first step in determining whether or not you have a valid case is to contact an experienced employment attorney. If you believe that you are the victim of discrimination, harassment or retaliation, based upon your disability, contact one of our employment attorneys today.

What Is Disability Discrimination In The Workplace?

While each case is unique, disability discrimination most commonly occurs under the following categories:

  1. Discrimination
    1. Disparate treatment v. disparate impact

The ADA prohibits discrimination based on disparate treatment that occurs when an employer treats a disabled employee or applicant differently than it treats nondisabled individuals because of the employee's or applicant's disability such as firing, not hiring, or not promoting the employee because of his or her disability. The ADA also prohibits discrimination based on disparate impact. Disparate impact occurs when an employer uses employment tests, standards or other selection criteria that intentionally or unintentionally exclude qualified individuals with a disability in a disproportionate manner.

  1. Harassment
    1. While EEOC protections do not extend to mere joking in the workplace, harassment can include offensive remarks about a person's disability. Harassment is unlawful when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
  2. Retaliation
  3. Failure to accommodate

Employers with 15 or more employees are covered under Title I of the ADA. Title V contains miscellaneous provisions, which relate to the EEOC's enforcement requirements and procedures.

Do I Have A Qualified Disability Under The ADA?

The ADA does not contain a list of certain conditions, injuries or illnesses that constitute a disability. Rather, the ADA provides a "technical" definition of "disability." According to the ADA, a "disability" is defined as:

(A) A physical or mental impairment that substantially limits one or more major life activities of such individuals;

(B) A record of such an impairment; or

(C) Being regarded as having such an impairment.

A qualified individual with a disability is a person who meets legitimate skill, experience, education or other requirements of an employment position that he or she holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation.

I Have Requested An Accommodation At Work, But My Employer Refuses To Comply. What Next?

An employer has a duty to provide a reasonable accommodation to a qualified individual. Generally, however, the individual must request the accommodation. This can be done verbally or in writing. The individual/employee has the duty of providing the employer with enough information for the employer to determine what a "reasonable accommodation" may be.

Once an accommodation has been requested or the need for an accommodation is obvious, the employer should initiate an interactive process with the individual. This generally means that employers should analyze job functions, identify relevant barriers to job performance by talking or consulting with the employee to learn his/her exact barriers, and explore what kinds of accommodation(s) would be most effective to the specific request.

An employer's duty to actively engage in an interactive process and provide an employee with a reasonable accommodation is considered one of the most important statutory requirements of the Americans with Disabilities Act of 1990. However, because each case is so specific and contingent on certain facts, it is important to contact an experienced disability attorney as soon as practicable.

Providing Free Consultations

Foote, Mielke, Chavez & O'Neil, LLC, employment litigation attorneys in Geneva, Illinois, provide aggressive legal representation for workers who have been unlawfully terminated or have suffered the harmful effects of disability discrimination, retaliation, harassment, or other unfair and unlawful employment practices. Call us at 630-232-7450 or contact the office by email or fax to schedule a free case evaluation with one of our experienced employment law lawyers.