If You Are Facing Workplace Discrimination Because Of A Disability You Should Take Action Right Away
By Lisa Guerin, J.D.
If you are facing workplace discrimination because of a disability, you should take action right away. The Americans with Disabilities Act protects applicants and employees from disability discrimination in every aspect of employment, from hiring to benefits to termination. Many states and even local governments have similar laws, and some apply to smaller employers. .
This article explains the steps to take if you find you believe you are being discriminated against. If you feel in over your head, or you aren’t sure what to do at any point, consider consulting with an experienced employment lawyer.
How Do I File A Complaint Regarding Employment Discrimination
Employees belonging to a protected class who have been discriminated against at work may pursue legal action against their employer. However, the first step an individual that has been discriminated against should take is to consult with their employer, or the human resources department about the discrimination.
However, if the employer or human resources do not address the concerns surrounding the discrimination, or if they ignore the concerns, an individual may then wish to file a claim against their employer. Filing a workplace discrimination lawsuit against an employer is a very specific process, and an employee generally must first exhaust all available administrative remedies.
For example, under federal law, before an employee is allowed to bring a discrimination or harassment lawsuit against their employer, they are required to first file an administrative charge with the Equal Employment Opportunity Commission .
The EEOC is a federal administrative agency which exists to enforce the laws against job discrimination and harassment. Generally speaking, most claims must be brought before the EEOC before the employee will be allowed to file a lawsuit. This process is known as exhausting your administrative remedies.
You will need to provide evidence to support your claim, whether or not the process ends in a lawsuit. Some examples of such documents and evidence that might be needed could include:
What Are My Damages In An Employment Discrimination Lawsuit In California
The damages available in an employment discrimination lawsuit will depend on the extent of the discrimination and the type of the harm to the employee or job applicant. This may include money damages, punitive damages, and equitable remedies.
Money damages from employment discrimination based on disability may include losses from:
- Pain and suffering
- Emotional distress
A successful lawsuit can also result in equitable remedies. If a disabled employee was not hired based on his or her disability, the court can require the employer to hire the employee. The court can also require the employer to provide a reasonable accommodation to the employee.
Employees who have suffered employment discrimination or harassment based on disability can also seek damages for the cost of attorneys fees and court costs.23
In some cases, an employee may also eligible to receive punitive damages. Punitive damages are a way to punish the behavior of the wrongdoer and act as a way to deter the employer or other employers from engaging in similar wrongful behavior in the future.
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What If I Need An Accommodation To Apply For A Job
Applicants, as well as employees, are entitled to reasonable accommodation. If that were not the law, only those individuals who became disabled after they were already employed would be protected against disability discrimination.
For example, an employer may be required to provide a sign language interpreter during a job interview for an applicant who is deaf or hearing impaired, unless to do so would impose an undue hardship.
If you think you will need a reasonable accommodation in order to participate in the application process, you should inform the employer that an accommodation will be needed, so that the employer is aware of your need for accommodation and so you will be protected by the ADA if you are not accommodated in the application process.
Failure To Promote You Because Of A Disability
Employers cannot withhold a promotion because an employee has a protected disability.
Example of Failure to Promote because of a Disability:
- After working as an assistant store manager for several years, receiving exemplary reviews and an employee-of-the-year award, you apply for a promotion to store manager. Your employer refuses to promote you, saying the position requires you to have a drivers license in order to take receipts to the bank, and you have epilepsy. You suggest some reasonable accommodations, such as taking a taxi to the bank, but the employer still denies you the promotion.
Employers cannot blame discriminatory decisions on the anticipated reaction of other employees or customers.
Your employer cannot refuse to hire or promote you because it believes your disability could make co-workers or customers uncomfortable.
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Can You Sue An Employer For Disability Discrimination
Fighting For Important Causes In State And Federal Courts
Every year, thousands of disabled Americans are discriminated against at their workplace. Ideally, there would be no claims because of this kind of behavior from unscrupulous employers. Sadly, discrimination against disabled people happens more than what many realize in institutions such as universities and colleges. Fortunately, there are ways people with disabilities can fight for their rights and bring their wrongdoers to justice. Depending on your particular situation, you may file a lawsuit against your employer based on discrimination for a disability. Our Penn State College disability discrimination lawyers at The Law Office of Andrew Shubin invite you to keep reading as we discuss this critical matter.
How Do I Apply For Ssi Or Ssdi
You may apply by calling 800.772.1213 and they will make an appointment to take your application by phone or in person at a Social Security office. You can also just go to a Social Security office without an appointment, but you will probably have to wait a long time.
The easiest way is to do as much as possible of the application process online. For SSDI, you can complete both the application and the Adult Disability and Work History Report online at www.socialsecurity.gov. For SSI, you can complete the online Adult Disability and Work History Report online, but then you will have to call 800.772.1213 in order to complete the application process.
Once you fill out the forms, be sure to keep a copy of any paperwork you send to SSA.
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Can I Be Asked About My Disability In A Job Interview
If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. However, an employer can ask if you can perform the duties of the job with or without reasonable accommodation; an example of this is: this job requires you to stand outside for long hours, or, must be able to lift 20 pounds. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation; you will perform the duties of the job.
Federal contractors and subcontractors who are covered by the affirmative action requirements of the Rehabilitation Act may invite individuals with disabilities to identify themselves on a job application form or in some other pre-employment inquiry. Employers requesting this information must follow certain legal requirements regarding the way this information is requested and used. The information must be maintained confidentially and separately from regular personnel records.
A pre-employment inquiry about a disability is also allowed if required by another Federal law or regulation such as those that cover disabled veterans and veterans of the Vietnam era. Pre-employment inquiries about disabilities may be necessary under such laws to identify applicants or clients with disabilities in order to provide them with required special services.
Are There Circumstances Under Which A Person Might Have To Remove A Service Animal Even If It Meets The Definition Of Service Animal
Yes, but its rare. Its all right to ask an individual with a disability to remove a service animal from the premises if either the animal is out of control and the individual does not; take effective action to control it, or the animal is not housebroken.
What the regulations mean by the animal being out of control is that the animal must be under the individuals control. It must have a harness, leash, or other tether, unless the individual is unable to use one of those because of the disability and, if thats the case, then the animal still has to be under some kind of control like voice control or signals.
If an animal is properly excluded because the animal is out of control or is not housebroken, then the entity has to give the; individual with a disability the opportunity to participate in the; service, program, or activity, or enter the place of public accommodation, without having the service animal on the premises.
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Which Federal Law Cover People With Disabilities
The Americans with Disabilities Amendments Act of 2010
The ADA makes it illegal for private employers, state and local governments, employment agencies, and labor unions to discriminate against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other areas of employment. Sections of the ADA not relating to employment address discrimination by governmental agencies and in public accommodations.
For more detailed information about the ADA, visit the U.S. Equal Employment Opportunity Commission’s website on Disability Discrimination.
The Rehabilitation Act of 1973
The Rehabilitation Act makes it illegal to discriminate on the basis of disability in programs conducted by Federal agencies, programs receiving Federal financial assistance, Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in the Americans with Disabilities Act.
The laws of most states also make it illegal to discriminate on the basis of disability, and some state laws have different standards than the ADA for determining who the state law covers. While the discussion below will focus on the ADA Amendments Act, you should check the law in your state and/or consult with a local attorney to see whether your state law provides additional protection.
Potential Damages Under Different Disability Discrimination Laws
Disability discrimination in the workplace violates your rights. An ADA lawyer or disability discrimination lawyer can help if you experience workplace harassment based on your disability, employment disability discrimination, or another form of disability discrimination in the workplace.
Contact Charles Joseph, a New York disability discrimination lawyer lawyer, for a free consultation.
The Americans With Disabilities Act
The ADA provides a general definition that tests each person on a case-by-case basis. Protected disabilities can be physical or mental, and in order to fall under the ADA, the disability must substantially limit a major life activity.
Major life activities include: walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, thinking, concentrating, and interacting with others. It also includes major bodily functions such as digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine, and reproductive functions.
The following is a list of conditions that are nearly always found to be disabilities under the ADA.
- Compulsive gambling, kleptomania, pyromania, exhibitionism, and voyeurism
- Pedophilia and other sexual behavior disorders
- Physical characteristics or height, weight or muscle tone that are within a normal range
- Common personality traits, like poor judgment or a hot temper
- Psychoactive substance use disorders resulting from current illegal use of drugs
Maladies such as broken bones, sprains, concussions, appendicitis and influenza are generally not considered disabilities under the ADA, because they are temporary conditions. However, under New York City law such conditions may be considered disabilities.
What Kinds Of Mobility Aids Are Allowed In The Airplane Cabin
Carriers must permit passengers with a disability to bring the following kinds of items into the aircraft cabin, as long as they can be stowed in designated priority storage areas, in overhead compartments, or under seats:
- Manual wheelchairs, including folding or collapsible wheelchairs;
- Other mobility aids such as canes, crutches, and walkers;
- Canes used by individuals with vision impairments;
- Other assistive devices for stowage or use within the cabin, such as prescription medication and delivery devices like syringes or auto-injectors; vision enhancing devices; an FAA-approved portable oxygen concentrator ; and ventilators and respirators that use nonspillable batteries, as long as they comply with applicable safety, security, and hazardous materials rules.
Assistive devices do not count toward a limit on the number of carry-on items allowed.
Air carriers must ensure that a passenger with a disability who uses a wheelchair and requests preboarding can stow the wheelchair in the priority stowage area and have priority over other items brought onto the aircraft by other passengers or crew. If the passenger with a disability does not preboard, the passenger may still use the area to stow the wheelchair or other assistive device on a first-come, first-served basis along with all other passengers seeking to stow carry-on items.
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What Is A Disability
You have a disability under the ADA if you have a physical or mental impairment that substantially limits a major life activity. Major life activities are things that are essential to daily life, such as caring for oneself, walking, hearing, breathing, learning, seeing, speaking, performing manual tasks, and so on. Major life activities also include major bodily functions, such as the proper working of the immune system, normal cell growth, and healthy reproductive, neurological, respiratory, digestive, and circulatory functions.
The ADA also protects employees from discrimination based on a record or history of disability or your employer’s incorrect perception that you have a disability. If, for example, you have a limp that does not impair your ability to walk, it would be discriminatory for your employer to assume that you’re unable to do a job that requires walking.
As long as you can perform the essential functions of your position, with or without a reasonable accommodation, your employer may not fire you based on your disability. In fact, your employer may not consider your disability in making any job decisions, including assignments, promotions, compensation, benefits, discipline, or other terms and conditions of employment.
The Procedure For Suing Your School District
Immediately upon being discriminated against, file a complaint and determine whether the case can be resolved internally with the school district. If an agreement cannot be reached, proceed to file a lawsuit against your school district. Follow these steps to make it happen:
File a Lawsuit in Court
||In general, you must attend a court hearing 30-60 days after filing a notice of claim, depending on your state laws.|
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What Exactly Is Considered To Be An Alteration Under The Ada
When any business makes an alteration to any facility, it has an obligation to make the alteration accessible to the maximum extent feasible.
Alteration is defined as remodeling, renovating, rehabilitating, reconstructing, changing or rearranging structural parts or elements, changing or rearranging plan configuration of walls and full-height partitions, or making other changes that affect, or could affect, the usability of the facility.
Examples from the U.S. Department of Justice include: restriping a parking lot, moving walls, moving a fixed ATM to another location, installing a new sales counter or display shelves, changing a doorway entrance, and replacing fixtures, flooring or carpeting. Normal maintenance, such as reroofing, painting, or wallpapering, is not considered to be an alteration.
Can The Person I Sue Also Sue Me
Yes. The Defendant can file a small claim against you. This is called the Defendants Claim . If this happens, the court will decide both claims at the same time.
If the Defendants Claim is for more than $10,000, s/he can file a claim in Superior Court. Then, s/he can ask the court to transfer your claim to Superior Court.
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What Does Regarded As Having A Disability Mean
Regarded as means that the person either:
- Has an impairment that does not substantially limit a major life activity;
- Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
- Does not have any impairment, but is treated by an entity as having an impairment.
Important Ways To Prove Disability Discrimination
- May 18, 2015
Disability discrimination claims have been on the rise for the past several years. These claims go beyond the most obvious cases of discrimination to more complex issues involving pregnancy and even workers compensation. A look at the numbers on the awards of successful claims against employers makes it imperative that they remain informed on the top issues concerning disability discrimination in order to prevent liability losses.
For employees, there are significant advantages to knowing the rights and remedies available when disability discrimination becomes an issue. The primary source of disability discrimination law is the Americans with Disabilities Act . Employees should be aware of the details of this federal law as well as the types of remedies available when a violation has occurred.
What Action Can You Take About Discrimination In Education
If you have a child who has special needs, in England, you may be able to complain to the First-tier Tribunal – find out more on GOV.UK.
In Wales, you can complain to the Special Educational Needs Tribunal for Wales. You can find information about discrimination appeals on the tribunal’s website.
In Scotland, if you canât resolve the problem with the school, you should approach your local authority education department.
If you cannot resolve the problem with the education department, you can raise a claim at the Additional Support Needs Tribunal service that deals with disability claims for school pupils. Find out more on the tribunal’s website.
If you think you have suffered discrimination in education because of your disability, you can talk to an adviser at your nearest Citizens Advice.