Workplace Discrimination – Know Your Workplace Rights

When you live with a chronic illness or disability, it can sometimes be difficult to function in the workplace. However, many workers who are struggling may be reluctant to speak to their employers for fear of how their employer may react. If this situation sounds familiar, it is important to remember that you have rights in the workplace.

What does the ADA provide?

The Americans with Disabilities Act of 1990 (known as the ADA for short) makes it illegal for employers to discriminate or retaliate against qualified individuals because of their disability. The law applies to private employers with 15 or more employees, state and local governments, employment agencies, labor organizations (such as unions), and labor-management committees. (If you work somewhere with fewer than 15 employees, there may be state laws available to protect you from discrimination). The ADA covers all employment-related activities, including (but not limited to) recruitment, hiring, firing, promotions, trainings, job assignments, benefits, and pay.

What counts as a disability?

While some of us may feel a bit uncomfortable being labeled as having a “disability,” it’s important to remember that this term can provide you with certain legal rights in the workplace. Under the ADA, you are considered to have a disability if you have “a physical or mental impairment that substantially limits one or more major life activities” on a long-term basis. 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, and working.” Keep in mind that the impairment you face only needs to limit one of these activities for you to qualify. Also, if you use tools or techniques to help you overcome the limitations you face – such as medications, mobility devices, or other assistive technology – that won’t be taken into account in determining whether or not you are limited. ADA protections also prohibit discrimination against individuals with a history of disability or whose employer incorrectly believes they have a disability. The law even protects people who live or care for a person with a disability if they are discriminated against for that reason.

What is a qualified employee?

In addition to having a legal disability, you must be a qualified employee to be protected by the ADA. This means that you must fulfill the requirements of the job, including the education, experience, and skills. You must also be able to perform the essential functions of the position, even if you require a reasonable accommodation to do so. Your employer may not discriminate against you if your disability limits you from performing tasks that are considered non-essential or ancillary to your job. Also, keep in mind that anyone who is using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use.

What is a reasonable accommodation?

The ADA gives qualified employees with disabilities the right to have “reasonable accommodations” in the workplace. This means your employer is legally obligated to provide you with the tools and environment necessary for you to perform your job. However, if you believe you need a reasonable accommodation, the ADA places the initial burden on you to inform your employer and initiate the request. Your employer is required to keep any information you disclose about your disability confidential.

What counts as discrimination in hiring?

When you are applying for a job, it is illegal for a potential employer to ask whether you are disabled or to inquire about the nature of any apparent disability. They may, however, ask if you are able to perform the essential duties of the job and whether you would need reasonable accommodations to do so. The ADA prohibits potential employers from asking you to take a medical examination prior to offering you a job. A job offer may be conditional on your passing a medical examination, but only if all employees in the same job category are also required to pass a medical examination. Also, the results of any such exam can only count against you if they are specifically related to your ability to perform the essential functions of the job.

What counts as discrimination in the workplace?

For those who have already been hired and started work, any additional medical examinations or questions about your disability may only be job-related. This includes asking about your disability to determine if you would require additional assistance in the event of an emergency. Your employer is required to keep any information you disclose confidential. Discrimination or harassment on the basis of your disability are both illegal, whether the acts are direct or indirect. Your employer is also required to provide you with equal access to whatever health insurance coverage is offered to other employees. Additionally, if you choose to exercise your rights under the ADA, your employer is also prohibited from retaliating against you.

What should you do if you experience discrimination in the workplace?

If you experience discrimination in the workplace on the basis of a real or perceived disability, you should contact the U.S. Equal Employment Opportunity Commission (EEOC). (If you work for a state or local government, you will need to contact the U.S. Department of Justice). If you aren’t sure whether the incident counts as discrimination, you can call (1-800-669-4000) and the EEOC staff can help you decide. To file an official charge, it is important to keep in mind that you need to make your claim within 180 days of the discriminatory act. (If you live in an area where there is a state or local fair employment law, it is possible you may have as many as 300 days). One way to file a charge is to visit your local EEOC office. If you choose this route, it is best to call first as the intake process can take up to 2 hours and each office has different appointment and walk-in systems. Another way to file a charge is to send your local EEOC office a letter or fax that includes the following information:

• Your name, address, and telephone number
• The name, address, and telephone number of the employer or employment agency or union you want to file your charge against
• The number of employees employed by the company or union members (if known)
• A short description of the events you believe were discriminatory (for example, you were fired, demoted, harassed)
• When the events took place
• That you believe you were discriminated against on the basis of your disability (though you can also file a claim for discrimination based on race, color, national origin, sex, religion, or age)
• Your signature (make certain you sign it – the EEOC cannot proceed unless you do)

What happens if there was discrimination?

If the EEOC concludes that discrimination on the basis of your disability did occur, you will be entitled to a remedy that will “make you whole.” This may include getting hired, promoted, reinstated, paid back wages, or being provided with a reasonable accommodation. The employer may also be required to take corrective or preventive actions with regard to the source of the discrimination in order to minimize the chance of it happening again. If the issue goes to court, your remedy could potentially include compensatory damages (for your emotional pain and suffering), punitive damages (to punish the employer), and the repayment of attorneys’ fees, expert witness fees, or court costs.