Fighting Disability Discrimination
It is illegal to discriminate against an employee because of his or her medical condition, but there are limits on this protection.
- The law only applies to employers with 20 or more employees. Smaller employers are not covered.
- The medical condition must be
substantially limitingof some
major life activity.
- The medical condition must be lasting - either permanent or at least of six-months likely duration.
- The employee must be able to perform all
essential functionsof the job - perhaps with a
reasonable accommodation(i.e., a little help or adjustment in performing these duties).
The law requires an employer to provide
reasonable accommodation to an employee or job applicant with a covered condition. A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability perform the duties of a job. Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired. Crucial here is the
interactive process: once the employer learns that the employee may need some accommodation, the employer cannot make assumptions about what the employee can or cannot do, or what will or will not be helpful; rather, the employer must meet with and work with the employee to find the accommodation that will work.
The employer is also prohibited from firing, disciplining, or harassing an employee because of the condition.
History or appearance of disability
However, even if not disabled at the moment, it is still unlawful to discriminate against a person based on a past history or disability. In addition, if the employer believes a worker is disabled - even if they are not in fact - discrimination on that basis is also prohibited.
Know your rights from the beginning to stop trouble before it starts
This area of law is extremely complex. In particular, employees have to thread the needle to show that they are disabled enough to be covered by the law, but not so disabled that there is no way they can do their job. There are also hazards in asking for accommodation - is the request reasonable? can I insist on an alternative? The answers to these questions are impossible to summarize, and are contained in a long line of cases where the courts have dealt with countless particular situations and given guidance.
It takes a specialist in the area to give sound advice. Every case I've taken in this area has presented some new and interesting issue. It is much easier to spot these issues at the outset, and fix potential problems before they start, than to try to pick up the pieces after things go wrong.
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