Disability Discrimination
Protecting your rights.
Under the Americans with Disabilities Act, Congress requires that employers break down barriers to job performance for individuals who have disabilities. Studies have established that disabled individuals can be just as productive as non-disabled in the workplace so long as reasonable and fair accommodations are made. Thus, employers must make reasonable accommodations for a person’s disability.
Disability Rights
A disability does not need to have a particular name or diagnosis. A disability is defined as a physical or mental impairment that substantially limits major life activities. Major life activities could include standing, speaking, walking, lifting, concentration, organ function, sleep and more. The Amendments Act of the Americans with Disabilities Act expanded the scope of protections with regard to disabled employees.
Employers must act proactively to help individuals with disabilities. This often takes the form of what is called an interactive process. Through an interactive process, employers can identify obstacles to performance and help disabled individuals work productively in the workplace. Hennessy Law has assisted many business clients with ADA compliance and assisted many individuals in enforcing their rights. The ADA is one of the more complicated areas of employment law and if you want experienced counsel in this area, contact Hennessy Law.
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Retaliation
If an employee needs accommodations, such as a leave of absence, an employer is prohibited from retaliating against employees. Retaliation cases filed before the Equal Employment Opportunity Commission are the fastest-growing category of cases and for a reason. If an employee seeks an accommodation and is subject to termination of employment or other adversity in connection thereto, the employee should seek counsel.
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There are numerous accommodations which may be made. The job accommodation network is good resource for identifying particular accommodations. Our firm has identified the following trends in cases where accommodations should have been made but were not:
Examples of Accommodations:
Taking a leave for an impairment is recognized as an accommodation in most courts. If you are on Family Medical Leave or another medical leave, it is often covered by the ADA and an employer must engage in the interactive process without terminating an employee’s employment. This issue often arises when an employer does not want to wait for an employee to come back from leave for a serious illness and terminates deciding that enough time has passed. This is unlawful and such individuals should seek an attorney’s advice.
Work from home is recognized as an accommodation in most courts. Today, after many of us worked from home during the worst of the Covid crises, employers have the ability to grant this leave.
Restructuring a job or a schedule are recognized accommodations. For example, individuals with certain sleep disorders may not be able to work certain shifts and should be accommodated.
While an employer does not have to change performance standards for an employee, an employee may need additional breaks (for medication, rest etc.) and it may be a feasible accommodation.
Examples of Recent Disabilities which may need accommodation:
Mental disabilities such as Anxiety or Depression or ADHD, unfortunately, have a stigma associated with them which gets in the way of accommodation. After the pandemic, many individuals have suffered from Anxiety or Depression. These disabilities are often not difficult to accommodate. Accommodations such as working from home are increasingly possible given the technology available to companies, especially since the pandemic. With therapy and reasonable accommodations, mental illness does not need to be an obstacle to working.
Autoimmune diseases such as Multiple Sclerosis can be disabling but they do not need to be career-ending. Unfortunately, some employers view such illnesses negatively and take preemptive action against employees without sufficiently engaging in the interactive process to look for accommodations. Hennessy Law recently successfully helped an employee with M.S. obtain a significant six-figure settlement after being terminated due to an employer’s perceptions of how an autoimmune disease limited him.
Organ failure is an unfortunate disability but can also be accommodated. The firm recently assisted an executive who had kidney failure get relief after a company failed to accommodate his need for dialysis.
