What Is Disability Discrimination?
Disability discrimination is the unfavorable treatment of employees or applicants based on any disabilities they may have. This includes disabilities that may be intermittent or in remission. It also applies to treatment on the basis that a person is perceived or regarded, perhaps incorrectly, as disabled.
The Americans With Disabilities Act
The Americans with Disabilities Act protects qualified individuals against disability discrimination in any aspect of employment by any employer with 15 or more employees. A person is considered qualified if they meet all skill, experience and education requirements and can perform the essential functions of the position.
The law considers a person to be disabled if they have any physical or mental impairments that substantially limit major life activities, including seeing, walking, learning and communicating. Any person with a history of such a disability, even if it is intermittent or in recession, is also classified as disabled.
Whether a disability can be mitigated, such as by medication or assistive devices, is not taken into consideration. For example, although insulin may ameliorate the condition of a person with diabetes, the effect of such medication must not factor into determining whether the person has a disability. The only mitigating measure that may be considered is the use of ordinary corrective lenses, in which case the user’s vision is assessed in its corrected state when determining whether he or she has a disability.
The ADA requires that employers provide reasonable accommodation to qualified employees or applicants with disabilities. Reasonable accommodation may include any modifications made to the work process or environment in order to allow such persons with disabilities equal access to employment opportunities. For example, a person with a wheelchair may be qualified to perform all essential functions of a computer programming position, but his or her disability would incidentally bar access to certain areas. In this case, a reasonable accommodation could be installing ramps or purchasing easily accessible desks or work stations to make the workplace more accessible to this employee.
It is the employee’s responsibility to disclose a disability if seeking reasonable accommodation. An employer may not be held accountable for failing to provide reasonable accommodation for a disability it was not made aware of. The requirement for reasonable accommodation does not cover individuals who are only regarded as disabled but are not actually so.
For an accommodation to qualify as reasonable, it must not place undue hardship on the employer. If it can be proven that implementing an accommodation would be so difficult or expensive as to significantly compromise business, then the employer may be relieved of the requirement to provide this specific accommodation. In such cases, an employer’s financial resources and the nature of its business would need to be taken into consideration. Expense alone would not likely absolve an employer of the responsibility to provide any accommodation whatsoever. In many cases, costs for accommodations can be offset by taking advantage of tax credits or vocational rehabilitation grants. If an employer can offer an effective accommodation different from the one requested by the employee, then the method of resolution is left at the employer’s discretion.
Medical Exam Requirements
The law prohibits employers from asking medical questions or requiring medical exams during the job application process. An employer may not directly inquire about any disability even if it is obvious, although it may ask an applicant to demonstrate how he or she would perform a job with or without reasonable accommodation. After a job offer has been made, an employer may require applicants to pass medical exams only if such a policy is consistently applied to all applicants in this job category. If a disability is disclosed as the result of a medical exam, this information may not be used to disqualify an employee unless the disability can be proven to prevent the individual from being able to safely perform essential job functions. After an employee has been hired, the employer may not ask medical questions or require medical exams unless they are related to the job.
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