Disability Discrimination

Discrimination on the basis of disability is prohibited under the Americans with Disabilities Act (ADA).  This law applies to employers of 15 or more employees.

Under the ADA, disability discrimination occurs when an employer treats a qualified employee or applicant unfavorably because of a disability with regard to any aspect of employment, including hiring, firing, compensation, job assignments, promotions, layoffs, training, fringe benefits and other terms, conditions or privileges of employment.   The ADA also requires employers to make reasonable accommodations for disabled employees so they can do their jobs.

What is a Disability?

  • an actual physical or mental impairment that limits major life activities
  • a record of a physical or mental impairment that limits major life activities
  • a condition regarded as being a disability by the employer

Major Life Activities

Performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and interacting with others.

What is Disability Harassment?

Disability harassment occurs when a supervisor, co-worker or a non-employee (such as a client, outside vendor or agent) subjects an individual to unwelcome conduct because of the individual’s physical or mental disability. This is unlawful when the individual (1) is disabled or regarded as being disabled; (2) is subjected to unwelcome conduct because of the disability which affects a term, condition or privilege of employment; and (3) the employer knew or should have known about the harassment and failed to take prompt action to stop it.  Conduct is unwelcome when an individual has to put up with it to remain employed, or when the conduct is so severe or pervasive (common) enough to create a work environment that a reasonable person would find hostile, intimidating or abusive.

The harasser doesn’t have to be someone from the victim’s same department. It can be a supervisor or other employee from another department.  The victim can be anyone affected by the offensive conduct. Harassment may happen without the loss of wages, benefits or a job.

Examples of Disability Harassment

  • Demeaning comments
  • Offensive jokes
  • Name calling
  • Intimidation
  • Humiliation
  • Threats
  • Displaying offensive objects or pictures
  • Interfering with the performance of one’s job
  • Tampering with an employee’s equipment or workspace

Reasonable Accommodation

A reasonable accommodation is a modification of a job by an employer to enable a disabled individual to perform the job. Accommodations vary depending upon the needs of the disabled individual and the requirements of the business operation.

To be eligible for a reasonable accommodation, a qualified applicant or employee must show that he or she has an “actual” disability or a “record” of disability. After the individual requests an accommodation, the employer and the individual should discuss the individual's accommodation needs.

The employer is required to reasonably accommodate the disability unless it would impose an undue hardship on the employer’s business operation. Whether or not a requested accommodation would cause an undue hardship depends on the employer’s size, financial resources and the needs of the business. An employer is not required to lower quality or production standards to make an accommodation.

Also, an employer is not required to provide the same accommodation that was requested. If more than one accommodation will work, the employer may choose which one to use. If more than one accommodation would work, the employer may choose the one that is less costly or least difficult.

Examples of Accommodations:

  • Making a workstation accessible to an employee confined to a wheelchair
  • Providing a handicapped-accessible bathroom or entrance ramp
  • Modifying a work schedule or job task
  • Reassigning a disabled employee to a vacant position
  • Acquiring or modifying equipment or devices
  • Providing scheduled breaks for an employee with diabetes to eat properly and monitor blood sugar and levels
  • Permitting an employee with cancer to leave work for treatments

Disability Retaliation

The ADA also prohibits employers from harassing individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation about disability discrimination, assisting or participating in an EEOC proceeding, or lawsuit under the ADA; or opposing employment practices that employees reasonably believe discriminate against individuals, in violation of the law.

Examples of Disability Retaliation:

  • Termination from employment
  • Demotion or transfer to a less desirable position
  • Disciplinary action
  • Reduction of authority or responsibilities
  • Unwarranted or increased scrutiny of job performance
  • Giving performance review ratings that are lower than they should be
  • Denial of promotional opportunities
  • Denial of training opportunities
  • Worsening working conditions or work schedule
  • Spreading false rumors about employee
  • Interfering with job performance or making work more difficult
  • Loss of a pay raise or bonus
  • Reduction in Pay
  • Isolation
  • Intimidation

Rich Daugherty is experienced in dealing with cases such as this and is dedicated to helping you find the best resolution to your case.

You can arrange for an initial phone conference with Rich at no charge.  He represents clients throughout North Carolina and is available to meet with prospective clients outside of Chapel Hill when circumstances permit.  Evening appointments are also available.

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