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Employment Discrimination and the Americans with Disability Act

A disability may raise employment law legal issues in certain situations. There are lots of misconceptions about how the law treats disabilities in the workplace. Discrimination based on a disability may be an illegal employment practice. It is important for employees to remember and recognize that they have certain employee rights. Discrimination based on race, color, creed, sex, religion, age, national origin and/or disability status is an illegal employment practice. Meeting with a Minnesota employment attorney to discuss your situation may prove to be a helpful first step in trying to resolve employment related disability issues. It's important to understand that each situation has its own particular issues and that courts in varying jurisdictions have had different interpretations as to the protections afforded and how disability law should be applied. This site does not provide a "one-size-fits-all" explanation of what protections are afforded under prevailing law nor an absolute answer to any one situation, but rather to give general information to be helpful. It is a good idea to contact a Minnesota law firm to consult with a Minnesota licensed attorney. Any search for information regarding disability law should include presenting complete and accurate facts to a licensed lawyer who works with disabilities issues for his or her evaluation.

Discrimination against an employee because of a disability is prohibited by the Americans with Disability Act of 1990and the amendments that took effect in 2009 (ADA). The ADA provides protection from discrimination in the workplace to people with physical or mental impairment that substantially limits one or more major life activities; individuals with a record of such impairment; or individuals regarded as having such impairment.

To evaluate whether the ADA will afford protection from discrimination in the workplace, it is first necessary to first determine whether the employee has a physical or mental impairment. If there is impairment, does it substantially limit a major life activity?

Under the ADA a major life activity includes but is not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Major life activities also include the operation of a major bodily function including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The impairment does not have to limit more than one major life activity. Further, if the impairment is in remission or is episodic, it is still considered a disability under the ADA if the impairment would substantially limit a major life activity when the impairment is active.

An impairment that substantially limits a major life activity may still be considered a disability under the ADA even if it is ameliorated by medication, medical supplies, equipment or appliances, low-vision devices (which do not include ordinary eyeglasses of contact lenses), prosthetics including limbs, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment or supplies; assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

In 2008, Congress enacted amendments to the ADA in order to provide clarification of the Congressional intent behind the original ADA. The amendments, which became effective on January 1, 2009, specifically rejected the holdings of cases that had narrowed the protections Congress originally intended when enacting the ADA. Congress, through the amendments, clarified that it had intended that "[t]he definition of disability ... shall be construed in favor of broad coverage of individuals ... to the maximum extent permitted under this chapter." Because there is existing case law that narrowed the scope of the ADA, it is important to consult with an attorney familiar with the case law, the amendments to the ADA and understands the scope of the protections Congress intended to provide. An experienced and knowledgeable lawyer from a Minnesota law firm can help an employee determine whether he or she is covered under the ADA under the particular circumstances of their situation. Because of the interplay between the medical aspects of a physical and/or mental impairment, how the impairment affects the individual with respect to major life activities including the individual's employment, civil litigation involving the ADA can become quite complex.

The ADA also provides protection to individuals who are regarded as having impairment. If the employee can establish that he or she has been subjected to actions prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity, the employee may be afforded protection under the ADA. The ADA does not, however, apply to impairments that are transitory and minor. An impairment is considered transitory if the actual or expected duration of the impairment is 6 months or less.

Protection under the ADA is also provided if the individual has a record of an impairment or is regarded as having an impairment or is perceived as having a physical or mental impairment regardless of whether or not the actual or perceived impairment limits or is perceived to limit a major life activity. In this respect, the ADA may provide protection to individuals who are believed by others to be impaired, even if he or she is not in fact impaired-for instance if a person is believed by others in the workplace to be mentally impaired and are treated unfairly as a result of that belief, the person may still qualify for protection under the ADA.

Once it is determined an individual's impairment constitutes a disability under the ADA, it is necessary to determine how the impairment impacts the individual's employment. Discrimination in employment based on a real or perceived disability can take many forms, such as:

  • Denial of employment opportunities, including hiring and promotions;
  • Treating the employee less favorably than others with respect to the terms, conditions and privileges of his or her employment including but not limited to wages or salary, disciplinary actions, suspensions, demotions and/or termination of employment;
  • Denial of reasonable accommodations needed to perform the essential functions of his or her job;
  • If reasonable accommodations are needed, but have been denied, would the accommodation have caused the employer significant hardship or significant expense?
  • Did the employer explore with the employee other accommodations?
  • Is reassignment to another position for which the employee is qualified an option? If so, the position available?

An employer is obligated to make a reasonable effort to determine the appropriate accommodation(s). Likewise, the employee must work with the employer in determining what reasonable accommodations are needed and what options are available. Among questions that should be considered when an employee requests reasonable accommodations are the following:

  • The nature of the impairment;
  • The employees qualifications to perform the essential functions of the position;
  • Has the employer restructured the employee's position so that the employee is now unable to meet the employer's expectations? If so, can reasonable accommodations be made that will allow the employee to perform the essential functions of the position?
  • Was the reason an employee was given an increase in his or her job duties and responsibilities an effort to demonstrate that the employee can no longer perform the essential functions of the position?
  • Does the position require certain training, license, education, experience or other job related requirements? If so, does the employee meet the requirements of the position?
  • If reasonable accommodations are available, will the individual be able to perform the essential job functions of the position?
  • What kind reasonable accommodation being sought? Is the requested accommodation reasonable? Would the reasonable accommodation cause the employer an undue hardship such as significant difficulty or expense to the employer?
  • Does the employer treat employees who are not impaired better that it treats the impaired employee under similar circumstances? For example, if a non-impaired employee and an impaired employee both fail to meet performance goals, are they treated the same or is the impaired employee treated more harshly?

Reasonable accommodations might include: acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, restructuring the position, part-time or modified work schedules, reassignment to a vacant position, providing qualified readers or interpreters, providing assistive software such as voice recognition software, and other similar accommodations for individuals with disabilities.

Once an employee has requested a reasonable accommodation, the employer should first analyze the relevant job and the specific limitations imposed by the disability and then in consultation with the individual, identify potential effective accommodations. Both the employer and the employee must engage in an on-going dialog regarding the reasonable accommodation. An employee cannot sit back and refuse to engage in such a dialog and then later claim the employer refused to provide reasonable accommodations. Likewise, if the employee does not like the first accommodation offered, he or she must continue with the dialog in an effort to reach a reasonable accommodation. Similarly, the employer must continue to work with the employee in finding a reasonable accommodation. If either party behaves unreasonably, then that party may ultimately be held responsible for the breakdown in communication.

To set up a confidential meeting with a disability rights lawyer at Neff Law Firm, P.A., call the central scheduling number of (952) 831-6555 or use the box for e-mail on this site.

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Neff Law Firm, P.A. has outstanding lawyers who really know how to handle discrimination related issues. I have personally observed Neff Law Firm P.A. handle numerous different types of discrimination including age, race, national origin, gender, civil rights and sexual orientation cases.