Disability Discrimination

Attorney D. Scott Gordon > Law Service > Disability Discrimination

Disability Discrimination in the Workplace

The Americans with Disabilities Act (“the ADA”) protects qualified individuals with disabilities from discrimination in the workplace. A “qualified individual” is a person who, with or without reasonable accommodation, is capable of performing the essential functions of the job.  The Americans with Disabilities Act generally covers employers with 15 or more employees.  A similar statute, The Rehabilitation Act, also provides protection for certain Federal Sector and other government employees based on receipt of Federal funds.

What is a Disability Under the ADA?

An individual with a disability is a person who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such an impairment; or
  • Is regarded as having such an impairment

An employee is “substantially impaired” if his or her impairment significantly limits or restricts a major life activity, such as hearing, seeing, speaking, walking, breathing,  learning or working.

What is Reasonable Accommodation?

A qualified individual with a disability is entitled to reasonable accommodations that would allow them to perform the essential functions of their position.

A reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment. It does not typically require the elimination of an essential function of a job, displacement of other employees, or the creation of a new light-duty job.

With regard to reasonable accommodation, EEOC’s Guidelines require an “Interactive Process,” whereby the employer and employee actively discuss reasonable accommodations for a qualified disability. Generally, the employee bears the burden of first requesting accommodation. Once the employee requests accommodation, the employer is obliged to engage in a dialogue to pursue effective accommodation. If the employer needs medical evidence from the employee’s physician to document the disability or to assist in the accommodation process, then it has a right to request such information.

What are Exceptions to Reasonable Accommodation?

1. Undue Hardship Defense

Employers also can assert undue hardship as an affirmative defense. In such case, it is the high burden of the employer to prove that an otherwise reasonable accommodation would pose an undue hardship on the business of the employer, typically meaning that the proposed accommodation would result in an unsustainable expense.

2. Direct Threat Defense

An employer also may consider an employee’s disability if the individual poses a direct threat to the health or safety of other individuals in the workplace. The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” “Significant risk” must be based on objective evidence about the individual involved, applying reasonable medical judgment, and not based on stereotypes or fear.   Factors to consider in determining if an employee presents a direct threat are:

1) the duration of the risk;

2) the nature and severity of the potential harm;

3) the likelihood that the potential harm will occur; and

4) the imminence of the potential harm.