DISABILITY

Disability Discrimination

Discrimination on the basis of disability is prohibited under the Americans with Disabilities Act (ADA). This law applies to employers of 15 or more employees.

What is a Disability?

  • an actual physical or mental impairment that limits a major life activity;
  • a record of a physical or mental impairment that limits a major life activity; or
  • a condition regarded as being a disability by the employer

What is a Major Life Activity?

Performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and interacting with others.

Disability Discrimination

Under the ADA, disability discrimination occurs when an employer treats an employee or applicant unfavorably because of a disability with regard to any aspect of employment, including hiring, firing, compensation, job assignments, promotions, layoffs, training, fringe benefits and other terms, conditions or privileges of employment. The ADA also requires employers to make reasonable accommodations for disabled employees so they can do their jobs.

The ADA protects those with disabilities, even when a disability does not affect them all the time, such as epilepsy, multiple sclerosis, bipolar disorder, schizophrenia or post-traumatic stress disorder (PTSD). Also, people who have had disabilities in the past may be entitled to reasonable accommodations if needed.

Examples of Disability Discrimination:

  • Unfavorable treatment due to a past disability
  • Giving negative job references due to a disability
  • Withdrawal of a job offer upon receiving notice of a disability
  • Failing to reasonably accommodate a disability
  • Failing to promote due to caring for a disabled family member
  • Requesting a medical exam before a job offer is made
  • Harassing an employee due to a disability
  • Failure to hire because of a disability
  • Using a company policy to put disabled employees at a disadvantage
  • · Issuing an unfair performance evaluation due to a disability

Disability Harassment

Disability harassment is a form of disability discrimination. It occurs when a supervisor, co-worker or a non-employee (such as a client, outside vendor or agent) subjects an individual to unwelcome conduct because of the individual’s physical or mental disability which is severe or frequent enough to create intimidating or offensive work conditions or result in an employment action such as a firing, demotion or disciplinary action. Harassment may include demeaning comments, offensive jokes, name calling, threats, displaying offensive objects or pictures, tampering with an employee’s equipment or workspace, interfering with an employee’s job performance, humiliation and intimidation.

Reasonable Accommodation

A reasonable accommodation is a modification or adjustment to a job or work environment to help a disabled employee to successfully perform their job. Accommodations vary depending upon the needs of the disabled individual and the requirements of the business operation.

When a disabled employee requests an accommodation, the employer and the employee should discuss the request to determine whether or not a reasonable accommodation exists. Requests do not have to be in writing or include specific terms such as “reasonable accommodation,” “Americans with Disabilities Act,” or “disability.”

The employer is required to reasonably accommodate the disability unless it would impose an undue hardship on the business operation. Whether or not a requested accommodation would cause an undue hardship depends on the employer’s size, financial resources and the needs of the business. An employer is not required to lower quality or performance standards, incur a significant expense, change the fundamental duties of a job, or tolerate misconduct to make an accommodation.

Also, employers are not required to provide the same accommodation that was requested. If more than one accommodation will work, the employer may choose one that is less costly or least difficult.

Examples of Accommodations:

  • Making a workstation accessible to an employee confined to a wheelchair
  • Providing a handicapped-accessible bathroom or entrance ramp
  • Modifying a work schedule or job task
  • Reassigning a disabled employee to a vacant position
  • Acquiring or modifying equipment or devices
  • Providing scheduled breaks for an employee with diabetes to eat properly and monitor blood sugar levels
  • Permitting an employee with cancer to leave work for treatments

Employers do not have to accommodate employees without disabilities based on their association or relationship with a person with a disability, but they cannot make employment decisions based on an expectation that the employee may need to care for that person.

Retaliation

The ADA also prohibits employers from punishing disabled employees for filing a discrimination charge, testifying, or participating in any way in an investigation about disability discrimination, assisting or participating in an EEOC proceeding, or lawsuit under the ADA; or opposing employment practices that employees reasonably believe discriminate against individuals, in violation of the law.

Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. However, an employer is not allowed to do anything in response to an employee asserting rights under the ADA that would discourage the employee from resisting or complaining about future discrimination.

Examples of Retaliation:

  • Termination from employment
  • Demotion or transfer to a less desirable position
  • Disciplinary action
  • Reduction of authority or responsibilities
  • Unwarranted or increased scrutiny of job performance
  • Giving a performance review rating that is lower than it should be
  • Denial of promotional opportunities
  • Denial of training opportunities
  • Worsening working conditions or work schedule
  • Spreading false rumors about an employee
  • Interfering with job performance or making work more difficult
  • Loss of a pay raise or bonus
  • Verbal or physical abuse
  • Reduction in pay
  • Isolation
  • Intimidation

Under ADA, private sector employees must file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of a discriminatory action. You will forfeit important legal rights if you do not file a timely charge with the EEOC. If you’ve already missed a deadline, call to discuss your options.

If you’ve been subjected to disability discrimination, contact Rich Daugherty. He will fight to protect your rights.

Whether your employment has been wrongfully terminated, you’re in fear of losing your job unlawfully, or you’re stuck in an untenable situation, contact Rich. He will be by your side every step of the way to reach a fair resolution of your case. In addition to litigating cases, Rich has negotiated confidential severance agreements favorable to his clients.

Rich offers a one-on-one relationship with his clients. When you contact his office, you will speak directly with him.

You can arrange for an initial phone conference at no charge.

Rich represents clients from across North Carolina, including Raleigh, Durham, Wilmington, Greensboro, Winston-Salem, Charlotte, and more. He is available to meet with prospective clients outside of Chapel Hill when circumstances permit. Evening appointments are also available.

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