Legal Issues and Recent Developments, Published by the Lurie Law Firm LLC

Disability Discrimination in the Workplace

The Americans With Disabilities Act (ADA) prohibits employers from discriminating against employees or applicants with disabilities in all aspects of employment including hiring, pay, promotion, firing, and more. It also protects employees from retaliation when they enforce their rights under the law.

The ADA applies to private employers with 15 or more employees, as well as local governments. Many states have similar laws, which may apply to smaller employers too.

Employers subject to the ADA cannot discriminate against a “qualified worker with a disability.” Furthermore, the employer must provide a reasonable accommodation for a worker with a disability as long as the accommodation won’t cause the employer undue hardship. The ADA specifies what counts as a disability, which workers are protected by the law, when accommodations are required, and what constitutes an undue hardship.

Covered Employees

The ADA protects the following employees:

  • An employee who has a disability. If an employee has a physical or mental impairment that substantially limits a major life activity, he or she is protected.
  • An employee with a history of impairment. An employer can’t discriminate against an employee based on his or her previous disability.
  • An employee who the employer regards as disabled. This is true even if the employer is wrong, and the employee is not actually disabled. If the employer discriminates against an employee based on its incorrect belief that the employee has a disability, the employee is protected by the ADA

Defining “Disability”

A disability for purposes of the ADA is a physical or mental impairment that substantially limits a major life activity. What constitutes a major life activity is broadly defined to include basic tasks (like walking, reading, bending, and communicating), as well as major bodily functions (such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).

If an impairment doesn’t significantly limit a person’s ability to perform a major life activity, it isn’t a disability protected by the ADA. Temporary ailments also don’t count as disabilities. For more information on whether specific ailments are considered disabilities, visit the Equal Employment Opportunity Commission’s (EEOC) website at www.eeoc.gov.

Who is a Qualified Worker With a Disability?

Only qualified workers with disabilities are protected by the ADA. A qualified worker with a disability is someone capable of performing 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. Ancillary duties don’;t count. For example, a call center’s customer service representatives may answer phones, draft correspondence to dissatisfied customers, and resolve customer complaints. If business is slow, the employees may also file or restock office supplies. The customer service tasks are probably essential duties of the job, while the “filler” tasks probably aren’t.

Reasonable Accommodation

If needed, an employer must provide a reasonable accommodation — an adjustment or modification that allows the employee to do the job — to a qualified employee with a disability. The employer isn’t required to guess whether a reasonable accommodation is needed, though once an employer knows of the need for an accommodation, it must meet that need. Also, the employer isn’t required to provide the particular accommodation an employee requests if another accommodation will do. But the employer must engage in the “interactive process,” a dialogue with the employee about accommodations that will meet that person’s needs.

Undue Hardship

The employer doesn’t have to provide a reasonable accommodation if doing so would create an undue hardship. An undue hardship means significant difficulty or expense to the business.

These factors determine whether an accommodation creates an undue hardship:

  • 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.

If the cost of an accommodation threatens the financial viability of the organization –whether because the company is so small or the cost is so large — it’s probably an undue hardship, and not required. However, according to the EEOC, the majority of accommodations cost less than $500. For most employers, that makes them reasonable and easy to implement.

©2010 Nolo. Reprinted with permission from the publisher, Nolo, Copyright 2009, http://www.nolo.com

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