Understanding disability discrimination
Do you know your rights under federal employment discrimination law?
Most people understand that it is not legal to discriminate against disabled employees and job applicants. This is as true for federal employees as it is for those working in the private sector. However, not everyone understands exactly what disability discrimination is.
This misunderstanding can have the unfortunate result of employers discriminating when they don’t intend to, and disabled workers not asserting their rights when they have been treated unfairly.
What is a “disability?”
Not every medical condition counts as a disability. Legally speaking, a person is considered to be disabled if he or she (1) has a physical or mental condition, and (2) that condition substantially limits a major life activity. Common “life activities” that could be limited include vision, hearing, mobility and learning.
Generally, a temporary condition – or one with a relatively minor impact – is not considered to be a legal disability. However, a person may still be considered to be legally disabled if he or she has a history of disability. A common example is cancer that has since gone into remission.
When can an employer ask about a disability?
It may be hard for an employer to know whether a job applicant has a disability. Employers cannot ask if an applicant is disabled, nor can they ask for details about an obvious disability. Employers are, however, empowered to ask whether an applicant can complete all job duties and how they would be performed.
Job offers can be conditioned on a medical exam or answering health-related questions, but only if all new hires in the same type of job are subject to the same treatment.
After the job starts, employers can ask medical questions or require medical exams in two situations. The first is if documentation is necessary to support a request for accommodation. The second is if the employer believes the employee is not able to safely perform his or her job duties.
What if a disability affects the employee’s ability to do the job?
Federal law requires employers to provide employees with reasonable accommodations that would allow the employee to complete his or job duties. Basically, an accommodation is a change to the working environment that allows the disabled employee to have equal opportunity. Examples include making the workplace wheelchair accessible, offering sign language interpreters, or modifying a work schedule.
Employers are not required to lower performance or output standards to accommodate a disabled employee. They are also not required to make accommodations that would impose an “undue hardship” on the employer. What constitutes an undue hardship varies from employer to employer.
What is disability discrimination?
Disability discrimination exists when an employer takes an adverse action against an employee or job applicant on the basis of his or her disability. Adverse action can relate to any employment-related activity, including pay, assignments, hiring, firing and promotions. In addition, employers may discriminate when a workplace is not accessible to people with physical disabilities or when they refuse to provide reasonable accommodation for physical and mental disabilities.
Discrimination can also exist when an employee is harassed on the basis of his or her disability. The harasser does not need to be a supervisor – it could be a coworker or even a customer. Illegal harassment happens when the conduct is so severe that it creates a hostile work environment.
If you have been the victim of disability discrimination at work, it is a good idea to speak with an employment law attorney. The attorney will assess the situation and walk you through your options for moving forward.