Ohio Disability Discrimination Attorney
Having a disability should not limit a person’s right to equal treatment and inclusion at work. Unfortunately, people with disabilities have historically been excluded from employment and other opportunities in society because of the discriminatory attitudes of others. If you have faced workplace disability discrimination, call an experienced Cleveland disability discrimination attorney at Bolek Besser Glesius for help.
To combat the history of exclusion and discrimination against people with disabilities, in 1990, Congress passed the Americans with Disabilities Act, or “ADA.” 42 U.S.C. § 12101, et seq. The ADA’s purpose is to ensure equal employment opportunity for individuals with disabilities. Ohio has a similar ban on disability discrimination, in section 4112.02 of the Ohio Revised Code.
Generally, it is illegal 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, it can be confusing to apply in practice and requires help from an ADA lawyer.
In the years after Congress passed the ADA, courts adopted a narrow definition of what it means to have a “disability.” That excluded many employees from protection. In 2008, Congress amended the ADA so that courts would view the definition of “disability” broadly. Congress told courts to focus more on whether the employer discriminated rather than on whether an individual meets the definition of disability. Even so, plaintiffs must still prove they have a “disability” before the ADA will protect them.
What is the definition of “disability” 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 has its own specific definition.
“Physical or mental impairment” has a broad and commonsense definition. 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), anxiety disorders, bipolar disorder, panic disorder, and learning disabilities, just to name a few.
The term “substantially limited” is more difficult to define. Whether an employee’s impairment substantially limits a major life activity depends on an individual analysis of how the impairment affects the employee 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 it limit more than one major life activity. Although it is not intended to be a demanding standard, not every impairment will qualify for protection.
“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 function 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.
Because the definitions in the ADA are so technical, employees should talk to a disability discrimination attorney for help navigating its statutory requirements.
Disability discrimination based on medical history
Aside from having an actual disability, there are two other ways someone can qualify as having a “disability” under 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 is if the employee does not have a disabling impairment, but is mistakenly “regarded as” having one by their employer. By way of example, an employer illegally regards an employee as disabled by firing her because of an incorrect belief she has AIDS.
Employers are also prohibited from asking for medical information to determine whether an employee or job applicant has a disability. Employers can make these inquiries only if the examination or inquiry is job-related and consistent with business necessity.
How do I ask for a reasonable accommodation of my disability?
Sometimes disability discrimination includes more than just hiring and firing. Critically, the ADA makes it illegal for employers to fail or refuse to grant reasonable accommodations for the 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. That might include making existing facilities readily accessible by putting in wheelchair ramps or making restrooms accessible. Reasonable accommodations are not limited to physical modifications though. Job restructuring, part-time or modified work schedules, exceptions from ordinary attendance policies, reassignment to an open position, or provision of additional training are some other examples of reasonable accommodations.
Employees don’t need to use magic words to request an ADA accommodation. All they have to do is let the employer know they are asking for a change to their job duties or the workplace because of a medical condition. The request doesn’t need to be in writing, but it may be a good idea for the employee to ask in writing so there is proof. From there, the employer and employee should start what’s called the “interactive process”–an informal back-and-forth to figure out what an appropriate accommodation might be. In some cases, employees might need to get documentation from their doctor. But employers can’t ask for documentation if the employee’s disability and need for an accommodation are obvious.
One common reasonable accommodation deserves special mention. Employers often believe that if the Family and Medical Leave Act does not apply, the employee has no right to medical leave. That is not always the case. Employees might be entitled to medical leave as a reasonable accommodation, even if the FMLA does not apply.
Contact a disability discrimination attorney for a free consultation
People 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 face discrimination in the workplace.
We are proud to have helped many employees with disabilities protect their rights, their financial security, and their dignity. If you believe your rights have been violated, talk to a Cleveland ADA lawyer at Bolek Besser Glesius today for help.
