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 Developments in Disability Discrimination Law Affect Employers, Applicants and
Employees
By Michael C. Fetzer, District Director,
Dallas
U.S. Equal Employment Opportunity
Commission
In my experience as Dallas district director for the U.S. Equal Employment Opportunity Commission, disability discrimination seems to present the most difficult issues for employers and employees alike. According to the Americans with Disabilities Act, as amended, disability discrimination occurs when an employer treats a qualified individual with a disability who is an employee or applicant unfavorably because he/she has a disability or is perceived to have a disability. Disability discrimination also occurs when an employer treats an applicant less favorably because he/she has a history of a disability (such as cancer that is controlled or in remission) or because he/she is believed to have a physical or mental impairment that is other than temporary in duration.
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. This is called “undue hardship,” and it can be a hard standard to meet.
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment.
Harassment such as offensive remarks about a person’s disability can also be illegal. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Generally, it is a good practice for employers to prohibit any type of workplace teasing or comments based on age, race, sex, color, religion, national origin or disability which a reasonable person might find offensive. Its common sense and a basic respect principle that’s good for business.
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
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 apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users, providing a reader or interpreter for someone who is blind or hearing impaired or adjusting work hours for an individual. Reasonable accommodations are assessed on a case-by-case basis. What may or may not be reasonable for one employer in one situation may or may not be reasonable for the same or a different employer in a different situation.
Unfortunately, we don’t have the space here for a full primer on the Americans with Disabilities Act, as amended. But one thing many employers don’t seem to realize is that in late 2008, congress amended the Americans with Disabilities Act to make it easier for employees and job applicants who allege disability discrimination to establish that they have a disability within the meaning of the law or are otherwise protected. The amendments afford greater protections for persons with disabilities and who are regarded as having disabilities, and also present greater potential liability for employers. For example, before the amendments, an individual was considered to have a disability within the meaning of the law if the individual was “substantially limited” or “substantially restricted” in a major life activity. The new amendments reflect congress’ intent that “substantially limited” now be interpreted more broadly. Now, an impairment no longer need “prevent, or significantly or severely restrict” an individual from doing an activity in order to be considered a disability within the meaning of the law. EEOC now is preparing regulations concerning how the law should be interpreted. Also, under the amendments, an individual who uses medications or other mitigating measures and therefore experiences little or no limitations on major life activities would still be considered disabled under the law if the impairment would be substantially limiting without use of the medications or mitigating measures.
Sound complicated and confusing? It can be for first-line supervisors and managers. The wrong action on their part can mean discrimination that harms an individual and presents expensive liability for their employer.
So what is an employer to do? Because the definition of disability has broadened and covers more people in more varying circumstances, traditional approaches to disability issues present new challenges and opportunities. Supervisors and managers need greater awareness and more education about disability issues. Supervisors and managers should be encouraged to contact the employer’s human resource staff for guidance before the supervisor or manager asks an individual questions about a medical condition or impairment at any time, or before the supervisor or manager forms conclusions or makes pronouncements about what tasks the individual with an impairment can or cannot perform and what accommodations an employer can or cannot provide.
Of course, under the new amendments an employer still doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in view of the employer’s size, financial resources and the needs of the business. But an employer may not refuse to provide an accommodation just because it involves some cost, and an employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
In my experience, common pitfalls here involve an employer’s lack of openness to the idea of an accommodation, or an unfamiliarity with the types of simple and/or creative accommodations that can be made at little or no cost. The employer fails to interact with the employee in good faith to explore accommodation options. Also, employers sometimes are too quick to conclude that an applicant’s or employee’s disability will present a risk in the workplace. Again, it’s always a good idea to consult human resource experts before any questions, pronouncements or decisions are made by supervisors or managers on disability issues.
The Job Accommodation Network, www.jan.wvu.edu, is an excellent source for workplace productivity and reasonable accommodation solutions that are often overlooked by employers and individuals. Also, EEOC’s website,
www.eeoc.gov, is a great source for the most recent information about employment rights and responsibilities, including those encompassed by the Americans with Disabilities Act, as amended, and the Genetic Information Nondiscrimination Act of 2008, which became effective Nov. 21.
Most of you know that employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. EEOC’s poster covers all these things and is available in several languages. Again, for more information, visit us at
www.eeoc.gov. Learn more about the EEOC small business liaison available in each district office nationwide to assist small employers in avoiding the pitfalls and to arrange training.
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