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Disability Discrimination

Protecting the Rights of People with Disabilities and Their Families

Having a physical or mental disability should not limit a person’s right to be a productive member of society. It is an unfortunate reality, however, that many individuals with a disability have historically been excluded from employment and other opportunities in society because of the discriminatory attitudes of others.

If you have been discriminated against, harassed, or mistreated at work because of a disability, contact the experienced employment law attorneys at Bolek Besser Glesius LLC in Cleveland for help.

To combat the history of exclusion and discrimination against individuals with disabilities, in 1990, Congress passed the Americans with Disabilities Act, or “ADA.” 42 U.S.C. § 12101, et seq. The purpose of the ADA is to ensure equal employment opportunity for individuals with disabilities by eliminating employment discrimination against them. Ohio has a similar ban on disability discrimination, which is found in section 4112.02 of the Ohio Revised Code.

As a general rule, it is unlawful for employers to discriminate against a “qualified individual on the basis of disability” with respect to any aspect of employment, including hiring, promotion, discipline, firing, pay, training, and any other term, condition, or privilege of employment. Although this rule seems clear enough, its application can be very technical and complex, and can require the assistance of an employment discrimination attorney.

In the years after the ADA was passed, courts adopted a narrow definition of what it means to have a “disability” under the ADA, which prevented many employees from proving they were entitled to protection. In 2008, Congress amended the ADA to clarify that the definition of “disability” is intended to be construed broadly. Congress therefore instructed courts to focus more attention on whether discrimination has occurred rather than on whether an individual meets the definition of disability. Nevertheless, a plaintiff must still prove he or she has a “disability” to be entitled to protection under the ADA.

Under the ADA, a “disability” is defined in several ways, the first of which is a “physical or mental impairment that substantially limits one or more major life activities.” In turn, each of the terms in this definition has its own specific definition.

The term “physical or mental impairment” has a broad and commonsense definition, and is fairly easy to apply. It includes most physical disorders, diseases, and conditions that affect the body. Some obvious examples include cancer, lupus, human immunodeficiency virus (HIV), multiple sclerosis, traumatic brain injury, loss of a limb, and many others. Significantly, an impairment also includes mental health and psychological conditions such as depression, post-traumatic stress disorder (PTSD), bipolar disorder, panic disorder, and learning disabilities, just to name a few.

The term “substantially limited” is somewhat more difficult to define. Whether an employee’s impairment substantially limits a major life activity depends on an individualized analysis of how the impairment affects the employee when compared to the general population. An impairment need not totally prevent, or even significantly restrict, a major life activity to be substantially limiting. Nor must an impairment limit more than one major life activity to qualify under the ADA. Although it is not intended to be a demanding standard, not every impairment will satisfy the statutory definition.

“Major life activities” include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. The operation of an organ or major bodily function is also considered a major life activity. For example, the functioning of the brain, immune system, sense organs, digestive system, cardiovascular system, musculoskeletal system, endocrine system, and normal cell growth among others are all major life activities.

Aside from having an actual disability, there are two other situations in which an individual qualifies as having a “disability” within the meaning of the ADA. The first is if the employee does not currently have an actual disability, but had one in the past. This is known as having a “record of” a disability. For example, an employee with cancer in remission would be protected as an individual with a record of a disability. The second situation is if the employee does not have a disabling impairment, but is erroneously “regarded as” having one by their employer. By way of example, an employee who is fired because of the employer’s mistaken belief she has AIDS has been illegally discriminated against because she was regarded as disabled.

In addition to the ban on discriminating against employees who meet the statutory definition of “disability,” employers are also prohibited from conducting medical examinations or inquiries in order to determine whether an employee or job applicant has a disability, unless the examination or inquiry is job-related and consistent with business necessity.

Preserving the Rights of Employees to Reasonable Accommodation

Sometimes disability discrimination includes more than just hiring and firing. A critical protection from disability discrimination makes it illegal for employers to fail or refuse to grant reasonable accommodations for the known disabilities of employees, unless doing so would pose an undue burden.

A reasonable accommodation is some modification of the work environment or a workplace policy that would help an individual with a disability perform the essential functions of the job or enjoy the benefits of the job enjoyed by co-workers. A reasonable accommodation might include making existing facilities readily accessible by putting in wheelchair ramps or making restrooms accessible to wheelchairs. Reasonable accommodations are not limited to physical modifications, however. Job restructuring, part-time or modified work schedules, reassignment to an open position, or provision of additional training are some other examples of reasonable accommodations. In some instances, a medical leave of absence can be a reasonable accommodation, even if it extends beyond the 12 weeks of leave provided under the Family and Medical Leave Act.

As noted above, employers do not have to provide a reasonable accommodation if doing so would be an undue hardship. To make that determination, courts look at a variety of factors including the nature and cost of the accommodation, the employer’s financial resources, the size of the business, and how the accommodation would affect the workplace, among others.

While an employer might not need to make a reasonable accommodation in every case, it cannot retaliate against an employee for requesting one, regardless of whether the accommodation is granted.

Contact an Employment Law Attorney for a Free Consultation

Individuals with disabilities have the right to be afforded the same respect, dignity, and job opportunities given to their co-workers. Yet despite the ADA, individuals with disabilities continue to encounter discrimination in the workplace.

Our Cleveland disability discrimination attorneys have been proud to help many employees with disabilities protect their rights, their financial security, and their dignity. If you believe your rights have been violated, contact us today for help.