With the upcoming pressure on the mentally impaired and physically disabled, the law enforcing bodies firmly established some laws to protect the rights of the disabled in terms of equal employment opportunities. Federal Laws like the ADA, FMLA, Rehab Act, and California state employee rights, in some way or the other, offer protection of the rights of workers with disabilities.

Impaired or not, every individual deserves equal rights to compete for a job or continue his or her position in the organization. But what happens if you’ve been treated unfairly, or have been wrongfully terminated? Here is what you should do:

1. Inform Employer of Breach of Right

Even though the ADA was established in 1990, there are a surprising number of disability discrimination cases being taken up in court. The reason? Your employer may simply not be aware of the accommodation that you are entitled to. Don’t be too hasty about taking any legal actions just yet. Take some time out to provide your employer with detailed information so that he or she is given a chance to remedy their actions.

2. Assert Your Rights

Once you’ve done your part informing the employer, your next step should be to recommend ways that you would receive “reasonable accommodation”. For instance, let’s say you’ve been turned down for promotion because it requires long hours of driving; and your disability doesn’t allow you such a liberty. Therefore, one suggestion could be to install some equipment that could facilitate your driving ability; this is your disability right. Since you are able to perform the job to the full capacity, fair consideration should be given to you for the position.

3. File Formal Complaint; Internally

When the above steps fail, it’s time to make a formal complaint to the upper managers. The reason why this is significant is because, if you decide to take matter to the court, you will have formal documentation that proves:

1. The entire management was aware of the issue and discrimination; it is documented
2. The company was provided with the chance to make amends

iii. You have had your rights violated

4. Obtain a Right-To-Sue Letter

Before you file an official lawsuit, you must get a right-to-sue letter from the Equal Employment Opportunity Commission. Once you file your charge of discrimination, stating the details of the violation, your case will be processed. It is important to note that if you forego this step and file a lawsuit, the judge will immediately discard your case.

5. Hire a Disability Lawyer to File Your Lawsuit

On obtaining your letter to sue, it’s time to get in touch with an experienced firm of lawyers who have the expertise and resources to fight for your disability rights. Once you have the best source in hand, the rest of the paperwork will be handled by them!

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Due to the expanded definition of the term “disability” under the Americans with Disabilities Act Amendments Act of 2008, employers have been receiving an increasing number of requests for reasonable accommodations under the ADA. Most common of these requests are leaves of absence or changes to the employee’s schedule. The Equal Employment Opportunity Commission (“EEOC”) and courts recognize that use of accrued paid leave or additional, unpaid time off from work may be a reasonable accommodation under the ADA.

Employers have several ways to accommodate employee requests for time away from work. For example, they can allow the employee to use accrued paid-time-off benefits like paid vacation or sick time. The employee can use the unpaidFamily and Medical Leave Act during leave while also using accrued paid-time-off benefits, or receive payments from a disability or workers’ compensation benefits plan at the same time. The employer can also provide paid or unpaid leave according to company policy. All of these efforts are usually viewed as a form of reasonable accommodation under the ADA.

Often, employers mistakenly believe that their accommodation obligation ends once these efforts have been exhausted. Recently, this mistaken belief has been challenged by the EEOC, and at a very high cost to employers.

In 2009 a retailer settled for $6.2 million after the EEOC challenged the company policy to terminate all employees that had not returned to work after 12 months of being out on disability due to workers compensation claims.

A national communications company also settled for $20million after the EEOC alleged they had violated the ADA by holding the employees accountable for all their absences due to their disabilities. The company would fire the employees for excessive absences even though those absences were directly related to their disability.

Recently a Grocery Store Chain also settled at $3.2million after the EEOC disputed the employer’s policy of terminating employees at the end of a fixed medical leave period instead of allowing the employees to return to work with reasonable accommodations.

Lastly, the EEOC Challenged a national airline company regarding its company policy to not issue reduced work schedules for any of the employees. Instead, the company required employees to either take a leave of absence or to take early retirement. The company eventually settled as well.

In short, regardless of what your company policy is you may be entitled to further accommodation of your disability. If you have been terminated or are being asked to resign due to your disability, you should contact an experienced labor law attorney to examine your case.
If you have any questions about this article or our blog, feel free to call us at:

San Diego – (619) 342-1242

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The meaning of the term Disability discrimination or Disability harassment.

In general terms, disability discrimination relates to the prospect of treating people in an entirely different manner because of their perceived disability, disability, or their association with a person with a disability. Examples of such discrimination include:

• Mistreating a worker due to her/his disability.
• Asking employment seekers questions relating to their current or past medical conditions, or ordering job applicants to go through medical examinations.
• Designing or maintaining a workplace that has substantial barriers that are physical, to the movement of individuals with physical disabilities.
• Discriminating on the basis of either mental or physical disability, in different aspects of job, including; firing, hiring, recruitment, job assignments, training, benefits, promotions, pay, layoff, plus all other job-related activities.
• Declining to provide a decent accommodation to workers with a mental or physical disability that would allow them to perform their duties.

If you have experienced either of these things while working, just know that you may have suffered disability discrimination. If you are qualified for a job and have a disability, there are state and federal laws that protect you against discrimination, harassment, and retaliation due to your disability. Additionally, you are also protected if you happen to be a victim of discrimination due to your association (business, social, family or any other relationship) with a person with a disability.

The examples of disability discrimination.

It is important to note that discrimination due to disability can happen in a number of ways. It can be direct, and obvious, or indirect, and not obvious. The examples are explained below.

Direct disability discrimination: A restaurant allows a couple with a child who is disabled to take meals in their outdoor seating place but not in their family room. In this case, this family has not been given the same choices given to other families.

Indirect: A local authority, for example, a Department of Health, produces a leaflet with information concerning its services for the people. In an attempt to reduce the costs, it fails to produce a version of the leaflet that is easy to read. This practice makes it quite tough for someone with a learning disability to get the information and the services, and this could lead to indirect discrimination.

The federal laws that cover people with disability.

The Americans with Disabilities Amendments Act of 2010;

This particular law prohibits state and local governments, private employers, labor unions and employment agencies from discriminating against individuals with disabilities who are qualified in their employment application procedures, firing, hiring, compensation, job training, advancement, and other conditions, terms and privileges of employment. Parts of the ADA not relating to employment look into discrimination by governmental agencies and in public accommodations.

For additional detailed information concerning the ADA, visit the U.S. Equal Employment Opportunity Commission’s Website on Disability Discrimination.

The 1973 Act of Rehabilitation.

This particular act states that it is illegal to discriminate by disability in Federal employment, in programs conducted by Federal agencies, in programs receiving Federal financial assistance, and in the employment practices of federal contractors.

The procedure for determining discrimination related to employment under the Rehabilitation Act are no different to those used in the Americans with Disabilities Act.

The laws explained above are the primary federal laws that apply to discrimination in the workplace. However, it is crucial to note that there are numerous other federal laws, which make it illegal to discriminate on the concept of disability and includes:

The 1968 Architectural Barries Act, which demands that facilities and buildings, constructed, altered, designed, or leased with given federal funds after September 1969 must be accessed and used by physically challenged people.

The 1986 Air Carrier Access Act, which prevents discrimination in the provision of air transportation.

The Housing Fair Act, which prohibits discrimination in the rental, sale and financing of housing based on disability.

And the Individuals with Disabilities Education Act which ensures that learners with disabilities are protected and that children with disabilities have access to free appropriate public education.

Individuals considered disabled under the law.

According to the ADA Amendment Act, disability refers to, with respect to a person, one who:

Has a mental or physical impairment that substantially limits one or more main activities of life of such a person;

Has a record of such an impairment,
Is regarded as having such an impairment,

The ADA Amendments Act alters the manner in which these criteria should be interpreted.

How the disability definition is interpreted under the law.
The ADA Amendment Act stresses that the definition of disability should be interpreted in a broader approach.

The Act orders the EEOC to revise the part of its regulation that defines the term Substantially limits. It also expands the definition of main life activities to incorporate:

Events previously recognized by the law, such as seeing and walking, together with the new one such as communicating, reading and bending.

The primary functions of the body such as functions of the normal cell growth, digestive, bladder, immune system, brain, respiratory, circulatory, reproductive and endocrine functions.

In the process of finding out whether an individual has a disability or not, mitigation measures, (if you can use medication to eliminate the limitations of your medical state, or successfully use a hearing aid, a prosthetic, glasses or other helping device) other than ordinary contact lenses will not be considered.

Though a particular impairment might be in remission or intermittent, it will be considered a disability if, it would substantially hinder a major activity of life.

If you are a person subjected to an action prohibited by the ADA such as failure to hire, due to impairment, which is either perceived or actual, you will meet the regarded as the definition of disability, unless the impairment is in transition or a minor.

The employees covered by the law.

Employment discrimination against individuals with disabilities is prohibited if practiced by:

Employment agencies.
Private employers.

Local and state governments.

Organizations of labor or

Committees of labor management.

The ADA applies to all companies, including local and state government employers, with fifteen or more workers. Most states also have laws that prohibit discrimination by disability.

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