Disability Discrimination Attorney
Protecting the rights of people with disabilities.
Having a physical or mental disability should not limit a person’s right to be a productive member of society. 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 LLC 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 a disability discrimination attorney.
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.
Disability discrimination based on medical history
Aside from having an actual disability, there are two other ways someone can qualify 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 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.
Besides the ban on discriminating against employees have a “disability,” employers are also prohibited from seeking medical information to determine whether an employee or job applicant has a disability, unless the examination or inquiry is job-related and consistent with business necessity.
What is a reasonable accommodation and am I entitled to one?
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 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.
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.
To make this determination, courts look at several 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. Although 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 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.
Our Cleveland ADA lawyers 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, contact us today for help.