The Americans with Disabilities Act (ADA) prohibits covered employers of 15 or more employees from discriminating against employees or applicants because of disability with regard to any aspect of employment such as hiring, firing, compensation, job assignments, promotions, layoffs, training, benefits and any other term or condition of employment.  The ADA protects these individuals, 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).

Discrimination may also occur when the victim and the perpetrator both have a disability.  It is important that disabled individuals notify the employer of their disability to help protect their rights against discrimination and retaliation under the ADA.

What is a Disability?

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

What is a Major Life Activity?

Major life activities include, but are not limited to, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and interacting with others.

Examples of Discrimination

• Unfavorable treatment due to a current or prior disability
• Failing to promote due to caring for a disabled family member
• Harassment due to a disability
• Giving negative job references due to a disability
• Withdrawing a job offer upon receiving notice of a disability
• Failing to reasonably accommodate a disability
• Requesting a medical exam (unrelated to job) before making job offer
• Failing to hire because of a disability
• Using a company policy to put a disabled individual at a disadvantage
• Issuing an unfair performance evaluation due to a disability

Hostile Work Environment (Harassment)

The ADA also prohibits the harassment of an employee due to disability.  Harassment is the unwelcome treatment of an employee due to a disability that is frequent or severe enough to alter working conditions and create a demeaning or abusive atmosphere (hostile work environment).  It is critical that you notify management of the harassment.  If possible, do so in writing and save a copy for documentation.  Once an employer knows about the harassment, it is obligated to take effective action to stop it.

This unlawful conduct may include the use of slurs or name-calling, workplace graffiti, threats, inappropriate jokes or gestures, isolation, exclusion, work interference, undermining of authority, humiliation, or other mistreatment.  The harasser may be a supervisor, co-worker, contractor, or client.  The harasser may also have a disability.

Retaliation

It is also unlawful to punish an employee for complaining to the employer about being discriminated against due to a disability or opposing disability discrimination against another employee.  The ADA further prohibits employers from retaliating against employees for filing an EEOC discrimination charge, testifying or participating in an investigation about discrimination, assisting in an EEOC proceeding or lawsuit, or opposing employment practices that an employee reasonably believes discriminate against another individual in violation of the law.

Retaliation includes adverse actions such as demotions, disciplinary actions, terminations, and other forms of punishment that tend to dissuade employees from complaining about discrimination.  For more information about legally protected activities and examples of unlawful retaliation, see Retaliation page.

Disability Accommodation

A qualified individual with a disability is a person who meets the legitimate requirements of their job and can perform the essential functions of that job with or without reasonable accommodation.  The ADA may require an employer to make a reasonable adjustment to a job or work environment to permit a disabled employee to perform the essential functions of the job.  To request an accommodation, an employee must show there's an "actual" disability or have a "record" of a disability that substantially limits a major life activity.

When an accommodation request is made, the employer and the employee must communicate with each other to determine if a reasonable accommodation exists.   Accommodations are only available to those with an actual disability or a record of a disability, not those who are only regarded as having a disability by the employer.

For an accommodation to be reasonable, it cannot impose an undue hardship on the business.  Whether or not a hardship exists depends on the employer’s size, financial resources, and the needs of the business. Employers are 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.

Employers are not necessarily required to provide the accommodation that was requested. For example, if more than one accommodation would work, the employer may choose one that is less costly or difficult.  Accommodations may also be required for employees with a prior disability.

Examples of Accommodation

• Modifying a work schedule or job task
• Permitting an employee to leave work for medical treatment
• Breaks for a diabetic employee to monitor and maintain blood sugar levels
• Making a workstation accessible to an employee confined to a wheelchair
• Providing a handicapped-accessible bathroom or entrance ramp
• Reassigning a disabled employee to a vacant position
• Acquiring or modifying equipment or devices

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

Under the Americans with Disabilities Act, 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.

In addition to federal law, the Wrongful Discharge Against Public Policy (WDPP) law of North Carolina prohibits covered employers from firing employees due to a disability or perceived disability.  Because the deadline for filing a WDPP claim has fluctuated in recent years, it is recommended that claims be filed without delay.  (See Wrongful Termination page)

If you’ve been subjected to disability discrimination, contact Rich Daugherty.  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.

In addition to litigating cases, Rich negotiates confidential severance agreements and executive exit agreements favorable to his clients.