DISABILITY DISCRIMINATION IN THE WORKPLACE
The Americans With Disabilities Act (ADA) prohibits employers from discriminating against employees or applicants with disabilities in any aspect of employment, including hiring, compensation, promotion, discharge and other terms and conditions of employment. The ADA also protects employees from retaliation for requesting a reasonable accommodation for a disability or good faith opposition to perceived disability discrimination.
The ADA covers private employers with at least 15 employees. The Colorado Civil Rights Act also prohibits disability discrimination in the workplace and applies to any employer with at least 2 employees.
Under the ADA, employers are prohibited from discriminating against a "qualified worker with a disability." In addition, the ADA requires employers to provide a reasonable accommodation for a worker with a disability as long as the accommodation does not impose an undue hardship on the employer.
Covered Employees Under The ADA
The ADA sets forth three (3) categories of individuals with disabilities protected by the law:
- An employee who has a disability -- If an employee has a physical or mental impairment that substantially limits one or more major life activities, he or she will be considered an individual with a disability.
- An employee with a history of impairment – If an employee has a record or history of a substantially limiting impairment, then the employee may be considered an individual with a disability.
- An employee who the employer regards as disabled -- If an employee is perceived by the employer as being substantially limited in one or more major life activities (even if the employer is wrong), then the employee is considered an individual with a disability under the ADA.
The Definition Of "Disability" Under The ADA
As noted above, disability for purposes of the ADA is a physical or mental impairment that substantially limits one or more major life activities. The term major life activity is broadly defined to include basic tasks (such as walking, reading, bending, and communicating), as well as major bodily functions (like functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions). For more information on whether specific ailments are considered disabilities, visit the Equal Employment Opportunity Commission's (EEOC) website at eeoc.gov.
Qualified Individual With A Disability
Only qualified individuals with disabilities are protected by the ADA. A qualified worker with a disability is someone who is able to perform the essential duties of the job, with or without a reasonable accommodation by the employer. The essential duties of the job are those tasks that are fundamental to the position.
Under the ADA, an employer may be required to provide a reasonable accommodation to enable an otherwise qualified disabled employee to perform the essential functions of his or her position. A reasonable accommodation is an adjustment or modification to an employee’s job requirements, responsibilities or working conditions that allows the employee to do the job. The employer's duty to provide a reasonable accommodation is triggered once the employee makes a request for one. Both the employer and employee must engage in an interactive process to explore potential accommodations necessary to accommodate an employee’s disability.
Reasonable accommodation may include, but is not limited to:
- Making existing facilities used by employees readily accessible to, and usable by, persons with disabilities
- Job restructuring
- Modifying work schedules
- Reassignment to a vacant position
- Acquiring or modifying equipment or devices
- Adjusting or modifying examinations, training materials, or policies
- Providing qualified readers or interpreters
Employers are not required under the ADA to provide employees with the exact accommodations they request or with the most expensive or best available accommodation. They are only required to provide accommodations that will allow employees with disabilities to achieve the same level of performance and enjoy the same benefits of employment as other similarly situated, non-disabled workers.
An employer is not required to provide a reasonable accommodation if doing so would create an undue hardship for the employer. An undue hardship means significant difficulty or expense to the business. In evaluating whether a requested accommodation would create an undue hardship, the courts and EEOC consider several factors, including the nature and cost of the accommodation, the financial resources of the employer (a larger, more successful business can usually afford to do more than a smaller one), the nature of the business, including size, composition, and structure, and accommodation costs already incurred in the workplace.
ADA Claims on the Rise
In 2010, there was a drastic increase in the number of claims relating to disability discrimination in the workplace. According to the EEOC, the agency received a record 100,000 complaints of disability discrimination in 2010, a 17% increase over the previous year.
The rise in claims was attributed in part to amendments to the Americans with Disabilities Act (ADA) that went into effect in 2009. Under the ADA Amendments Act of 2008, Congress increased the scope of qualifying disabilities to make it easier for individuals to receive protection under the law. This included overturning a previous U.S. Supreme Court ruling that said available mitigating measures must be considered prior to determining if an individual has a disability.
Baird Quinn LLC’s ADA lawyers have substantial experience prosecuting and defending ADA claims in court and before Federal and state administrative agencies. If you have any issues relating to alleged disability discrimination in the workplace, please contact one of our labor and employment lawyers to discuss the issue. You may go to the following link for contact information and additional information about our Colorado employment lawyers. Contact Us