THE HIGH COST OF WORKPLACE DISABILITY DISCRIMINATION
February 18th, 2019 | Richard M. Goldberg
After trending upward for years, charge filings for job discrimination related to disability reached an all-time high two years ago. Which means an increasing number of employers can be facing substantial financial consequences for non-compliance. So how does an employer avoid running afoul of anti-discrimination laws? It’s essential to be familiar with the pertinent laws.
Americans with Disabilities Act (ADA)
Enacted in 1990 and amended in 2008, the Americans with Disabilities Act prohibits discrimination on the basis of disability in employment, State and local government, public accommodations, commercial facilities, transportation and telecommunications. Workplace discrimination is covered by ADA’s Title 1, which requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. Title 1 applies to discrimination in recruitment, hiring, promotions, training, pay, social activities and other privileges of employment, as well as termination.
HKQ Law Attorney Richard M. Goldberg notes that it’s important for employers to know that “while the Americans with Disabilities Act does not cover independent contractors, the Pennsylvania Human Relations Act (PHRA) does.” PHRA also applies to employers with as few as four employees.
The ADA protects individuals who: (1) have a physical or mental impairment that substantially limits one or more major life activities, (2) have a record of such an impairment, or (3) are regarded as having such an impairment.
A non-exhaustive list of major life activities includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others and working. Major life activities also include the operation of major bodily functions. Covered impairments include but are not limited to deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia. Pregnancy is not a disability under the ADA. However, certain impairments resulting from pregnancy ( e.g., gestational diabetes), may be considered a disability if they substantially limit a major life activity.
The ADA does not specifically name all of the impairments that are covered. Other mental or physical conditions also may be considered disabilities depending on what the individual's symptoms would be without mitigating measures such as medication, prosthetic limbs, mobility devices, oxygen therapy, physical therapy, psychotherapy and behavioral therapy. An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.
In addition to protecting qualified applicants and employees with disabilities from employment discrimination, one ADA provision protects applicants and employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability. The “association provision” was included in the ADA to prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities. For example, under the provision, it would be unlawful to refuse to hire an individual who has a child with a disability based on an assumption that the applicant may be away from work excessively.
Qualified applicants and employees with disabilities are entitled to “reasonable accommodations.” A reasonable accommodation is any work-related modification that will permit an employee or prospective employee with a disability to participate in the job application process, to perform the essential functions of a job, or to partake in the same benefits and privileges of employment enjoyed by employees without disabilities. Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or modifying examinations, training, or other programs. Some accommodations may not be considered reasonable as they would cause an undue hardship on the business by posing significant difficulty or expense.
Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Those only meeting the “regarded as” definition are not entitled to receive reasonable accommodation. Nor are people covered by the “association provision”.
Complexity and the cost of non-compliance
As you can see, the ADA is a complicated law. Its complexity is illustrated in workplace issues involving drugs and alcohol. An employer has the absolute right to fire an employee for using either substance on the job. However, the ADA does provide protection for drug addicts and alcoholics provided these individuals meet certain conditions.
It’s not just intentional disregard of the ADA that can create serious problems for employers. Misinterpretation of the law can be a costly mistake. Violating the ADA (and the PHRC) can result in time spent defending claims, bad publicity, the expense of litigation, and substantial damages. In 2006, the U.S. Equal Employment Opportunity Commission (EEOC) charged FedEx with failure to provide a reasonable accommodation to a deaf employee. A federal jury found FedEx liable for punitive damages in the amount of $100,000.00 for failure to accommodate the employee as well as compensatory damages of $8,000 for the loss of the accommodation.
Fortunately, HKQ Law can assist you with compliance for all facets of ADA Title I and PHRA, from interview (and questions to avoid) to legal terminations. To speak with an Employment Law Attorney, call (800) 760-1529.