Disability Discrimination: Everything You Need to Know

Disability Discrimination occurs when a business discriminates against an employee based on his or her disability. It is important for employees to know their rights under the Americans with Disabilities Act (“ADA”) as well as the Equal Employment Opportunity Commission (“EEOC”), as discrimination against anyone based on his or her disability is illegal under the law.

What is Disability Discrimination?

Discriminating against someone based on his or her disability is illegal, both in the workplace and outside of the workplace. Therefore, an employer cannot overlook hiring those otherwise qualified employees simply because they have a disability. Further, an employer cannot create a working environment that has considerable physical obstructions to the development of individuals with physical inabilities.

Remember that employers cannot discriminate against hiring you or even promoting you to a higher position simply because you suffer from a disability. This also holds true in the event that you become handicapped while working. For example, if you suddenly suffer an unfortunate event that leaves you handicapped, your employer cannot terminate you simply for becoming disabled. While this would seem obvious, some employers have in fact engaged in this type of behavior.

You can also not be discriminated against by colleagues in the workplace. Therefore, if you feel as though you are being treated with hostility or if you are the victim of embarrassing jokes due to your disability, you should immediately notify management.

Other types of characteristics and background protected by the EEOC include sex, race, ethnicity, sexual orientation, age, or religion. Generally, pregnancy is oftentimes viewed as a protected characteristic.

The ADA also protects disability discrimination both inside and outside of the workplace. Therefore, someone being discriminated against in a restaurant due to his or her disability is illegal under the ADA.

Examples of Disability Discrimination

Disability discrimination can be self-evident, or subtle. It can occur once or over a prolonged period of time.

  • An eatery hires a young gentleman with autism as a dishwasher, even though he has sufficient  skills to be a waiter and has applied for a server position.
  • A restaurant fails to provide service to a child with down syndrome
  • An employer fails to hire a qualified person due to her disability
  • A retail store clerk ignores someone with a disability in a wheelchair because she believes as though the individual in the wheelchair will not purchase any clothing and wants to avoid the work of helping that person in the wheelchair in the fitting room.

The ADA

The ADA makes it illegal for private businesses, state and neighborhood governments, work offices, and the like from discriminating against people with a disability for any reason. Further, the Rehabilitation Act of 1973 (the “Rehabilitation Act”) makes it unlawful to discriminate on the premise of disability in programs led by federal organizations and programs earning federal funds.

There are numerous other government laws that make it unlawful to discriminate against those with disabilities, including the following:

  • The Air Carrier Access Act of 1986 makes it illegal to discriminate via air transportation against those with disabilities
  • The Architectural Barriers Act of 1968 requires that structures and offices developed after September 1969 must be accessible to those with disabilities
  •  The Fair Housing Act forbids discrimination with regard to renting and financing or lodging for those with disabilities
  • The Individuals with Disabilities Education Act guarantees that students with disabilities are protected

Who is Considered Disabled Under the Law?

As per the ADA, someone is disabled if he or she suffers from a physical or mental impairment that prohibits the person from carrying out certain activities. Under the ADA Amendments Act, the idea of "inability" is implied, as the person suffering the disability is the one who makes that decision. 

Interpretation Under the Law

The ADA Amendments Act specifies that the meaning of handicap "ought to be deciphered comprehensively." The ADA Amendments Act parallels the provisions within the EEOC to update the verbiage to include “significantly contrains.” Therefore, if the handicap significantly constrains the person from carrying out a ‘real life exercise’, then that person is disabled. The ADA Amendments Act enhances the meaning of ‘real life exercises’ to incorporate most exercises, i.e., walking, running, and other physical activities, as well as thinking, writing, reading, and the like – what we would view as mental abilities.

In deciding if one has an inability, the individual can look to the following to determine if the condition is a true disability:

  • Does the person take medication for the disability?
  • Does the person have to use a wheelchair or some sort of device to help him or her walk and get around?
  • Can he or she participate in all physical activities as anyone else does?
  • Is he or she restricted in terms of what type of work can be accomplished in a professional environment?

Can I Be Asked About My Disability in a Job Interview?

If you are applying for a job, a business can't inquire as to whether you are handicapped or ask such information from a prior or current employer of yours. However, an employer can, in fact, ask you if you can successfully carry out the duties required of you. For example, if you are in a wheelchair and are applying to stock shelves in a warehouse, the employer may likely not consider you because you may have trouble successfully carrying out the duties required of you in that job position. However, with that being said, most people who are disabled are well aware of what they can and cannot do and wouldn’t apply for a position if they didn’t think they could successfully carry out the duties of that job.

Under federal law, a business can request that you prove that you can successfully carry out such duties of that particular occupation. While you may think this is not acceptable, it’s actually a positive outlook on the part of the employer because the business is potentially considering you for the role. So long as you can prove that you can do the job, you may have earned yourself a new position!

Can I Be Forced to Take a Physical or Medical Exam?

You can't be required by a business to take a physical or medical examination before the company offers you the position. Furthermore, if you suffer a disability while already in your position, the employer cannot terminate you or ask for an examination, unless you have a workers' compensation case against the employer. More importantly, your manager cannot ask you about your disability or how it happened, and certainly cannot require you to share such information.

What is an "Essential Job Function?"

An essential job function is the primary obligation of the job itself. Therefore, if your basic job function is to do administrative work, then it is likely that a good majority of your days will include answering phones, making copies, printing out documents, and taking care of senior management’s calendars and travel plans.  Therefore, a business will need to know if you can carry out the essential job function required of the job. However, if you suddenly become disabled while already in your position, you may need to speak to your employer to have your position altered in a way in which you can still successfully carry out the essential job function(s). For example, if you work at the checkout line of a grocery store, but, after being disabled, you are in a wheelchair, your employer may need to find another essential job function for you. However, keep in mind that, at times, your essential job function just cannot change. Therefore, if you work as a truck driver but can no longer drive, then you will no longer be employed in that position. It is important to know your rights and responsibilities if this type of event arises.

If you need assistance with disability discrimination, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.