Friday, December 2, 2022

Is It Illegal To Ask Someone What Their Disability Is

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Q Does The Ada Permit An Individual With A Disability To Sue A Business When That Individual Believes That Discrimination Is About To Occur Or Must The Individual Wait For The Discrimination To Occur

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A. The ADA public accommodation provisions permit an individual to allege discrimination based on a reasonable belief that discrimination is about to occur. This provision, for example, allows a person who uses a wheelchair to challenge the planned construction of a new place of public accommodation, such as a shopping mall, that would not be accessible to individuals who use wheelchairs. The resolution of such challenges prior to the construction of an inaccessible facility would enable any necessary remedial measures to be incorporated in the building at the planning stage, when such changes would be relatively inexpensive.

Q What Standards Must Places Of Public Accommodation And Commercial Facilities Follow

A. Places of public accommodation must follow the 2010 ADA Standards for Accessible Design for barrier removal, new construction and alterations. Commercial facilities must follow the 2010 ADA Standards for Accessible Design for new construction and alterations. The 2010 ADA Standards for Accessible Design set minimum requirements both scoping and technical — for newly designed and constructed or altered public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities. Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall the professional office of a health care provider a terminal, depot, or other public transit station or an airport passenger terminal.

What Religion Do You Practice

Inquiries about religious beliefs are a sensitive issue. An interviewer might be curious to know, for scheduling reasons, whether an employee might need any religious holidays off, or if the candidate will be unavailable to work on weekends because of religious obligations. It is illegal to intentionally discriminate against an employee or harass them based on their religious beliefs.

Employers are required to accommodate an employee’s religious beliefs or practices with regard to dress and grooming or flexible scheduling.

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What Is The Equality Duty

The Equality Duty means that public bodies have to do certain things for service users.

A public body is an organisation that carries out a public service but is not a government department. An example is the Advisory, Conciliation and Arbitration Service .

They are included in the Useful Contacts section at the bottom of this page.

The Equality Duty asks public bodies to:

  • stop discrimination, harassment and victimisation,
  • promote equality between people with a protected characteristic and those without, and
  • promote good relations between people with a protected characteristic and those without.

Private organisations that are doing work for public bodies also have to do this. An example would be if a private company were running a day care centre for the local council.

Public organisations must make sure that they treat disabled people and non-disabled people the same. To do this they must:

  • remove or minimise disadvantages that disabled people face,
  • take steps to meet the needs of people with disabilities, and
  • encourage people with disabilities to take part in activities that they are not normally able to take part in.

The public organisation must try to tackle prejudice and increase understanding of disability.

Q Does The Ada Have Any Effect On The Eligibility Criteria Used By Public Accommodations To Determine Who May Receive Services

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A. Yes. If a criterion screens out or tends to screen out individuals with disabilities, it may only be used if necessary for the provision of the services. For instance, it would be a violation for a retail store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to exclude all individuals with cerebral palsy. More subtle forms of discrimination are also prohibited. For example, requiring presentation of a driver’s license as the sole acceptable means of identification for purposes of paying by check could constitute discrimination against individuals who are blind or have low vision. This would be true if such individuals are ineligible to receive licenses and the use of an alternative means of identification is feasible.

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What Is An Impairment Substantially Limiting A Major Life Activity

An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Major life activities generally consist of but are not limited to: caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Under the ADAAA, “major life activities” was expanded to include “major bodily functions”. This list includes, but is not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, and reproductive functions.

Dont Say You Dont Look Disabled

Frequently a follow-up to Why do you get special treatment? this phrase is usually directed at people with invisible disabilities. Just because someone doesnt look disabled to you doesnt mean they dont need accommodations based on disability.

Many disabilities cannot be judged based on appearance alone and still deserve technical and social support. Basing deservedness for accommodations on someones appearance is not only inaccurate, but it can also lead to a contentious and hostile work environment for that disabled employee well into the future. And, if youre not the boss or in HR, its really none of your business.

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Q What Is Reasonable Accommodation

A. Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that an individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

Who Enforces The Law

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The Equal Employment Opportunity Commission is the agency of the federal government responsible for investigating charges of job discrimination related to disability discrimination in workplaces of 15 or more employees. Most states have their own agencies that enforce state laws against discrimination .

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Can My Employer Refuse To Pay Medical Insurance Coverage For My Disability

The ADA requires that an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees. Your employer cannot deny you coverage that is made available to other employees or impose additional costs or restrictions on you because you are disabled. Depending on the level of coverage, however, the offered coverage may or may not fully cover the medical needs you have as a result of your disability.

The ADA also does not affect clauses contained in health insurance policies about pre-existing condition even though such clauses may adversely affect employees with disabilities more than other employees.

Q What Are The Ada Requirements For Altering Facilities

A. All alterations that could affect the usability of a facility must be made in an accessible manner to the maximum extent feasible. For example, if during renovations a doorway is being relocated, the new doorway must be wide enough to meet the new construction standard for accessibility. When alterations are made to a primary function area, such as the lobby of a bank or the dining area of a cafeteria, an accessible path of travel to the altered area must also be provided.

The bathrooms, telephones, and drinking fountains serving that area must also be made accessible. These additional accessibility alterations are only required to the extent that the added accessibility costs do not exceed 20% of the cost of the original alteration. Elevators are generally not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center or mall the professional office of a health care provider a terminal, depot, or other public transit station or an airport passenger terminal.

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Access To Public Transport

If youâre disabled, providers of public transport must not treat you less favourably than they would treat a person who isn’t disabled . They have the same duties as other providers of services.

These rules apply to the transport service itself as well as to other related services, for example, at a railway station.

Taxi drivers can lose their licence and face a fine of £1,000 if they fail to transport wheelchair users. Taxi drivers must provide passengers in wheelchairs with assistance and charge wheelchair users the same as non-wheelchair users.

Bus companies must give people in wheelchairs priority in using the wheelchair space. The driver can, for example, ask someone to leave the bus if they refuse to leave the wheelchair space.

The bus driver can only leave the wheelchair user behind if it’s reasonable – for example, if the bus is full and passengers in the wheelchair space can’t move.

When you travel by air, airport operators must provide services which allow you to board, disembark and transfer to another flight. They must not charge for these services.

There are also special rules protecting disabled passengers when they travel by air in Europe. Airlines and travel companies are not allowed to refuse to accept bookings from disabled passengers. This applies to all flights leaving an airport in the European Union and to any flight arriving in an EU country on an EU airline.

Can An Employer Ask Me Health Questions Once They Have Offered Me A Job

Illegal Interview Questions

Once an employer offers you a job, they can ask you health-related questions.

You may be given a conditional offer of a job. This means that getting the job depends on certain things. For example, an employer might say your job offer is conditional on satisfactory references.

Sometimes a job offer is conditional on health or disability checks. An employer can then ask questions about your health. If your job offer is then withdrawn, and you feel you were discriminated against, you could make a claim.

When you start a job, you do not have to share that you have a mental illness.

But if your mental health condition is affecting how you work, it is important to tell your employer so that they can support you.

Your employer has a duty of care to you. This means that they must do as much as reasonably possible to support your health and wellbeing.

You may choose not to tell your employer about your mental illness. If you struggle to do your job because of a mental illness, and your employer doesnt know this, they cannot offer you any support or adjustments. They may assume that you are unable to do your job and take disciplinary action against you.

If you want advice on how to manage your mental illness at work, you should speak to the relevant professional body for your job.

You can find more information about Work and mental illness by clicking here.

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What Makes A Service Dog A Service Animal

For access to public accommodations, only service dogs and miniature horses are covered. For housing, this limit does not apply other types of animals may be covered. The ADA defines a service animal as a dog that is individually trained to perform tasks or do work for the benefit of a person with a disability.

Only specific dogs can be labeled as service animals. The Americans with Disabilities Act defines a service dog as follows: A dog that has been individually trained to do work or perform tasks for an individual with a disability. The task performed by the dog must be directly related to the persons disability.

Q Does The Ada Allow Public Accommodations To Take Safety Factors Into Consideration In Providing Services To Individuals With Disabilities

A. The ADA expressly provides that a public accommodation may exclude an individual if that individual poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation’s policies or procedures or by the provision of auxiliary aids. A public accommodation will be permitted to establish objective safety criteria for the operation of its business however, any safety standard must be based on objective requirements rather than stereotypes or generalizations about the ability of persons with disabilities to participate in an activity.

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Its So Good To See You Out And About

Many people assume that it is a mammoth struggle for people with a disability to even leave the house, or that they are not capable of leading an active, social, interesting life.

For most people with a disability, this couldnt be further from the truth!

The other problem here is the view that people with a disability are out of place in certain spaces, like clubs. But why shouldnt someone with a disability be on the dance floor or out having a drink with friends? Absolutely no reason that we can think of!

What If Im Not Able To Do The Tasks That Make Up The Job

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It is not against the law to refuse someone a job if, because of their disability, they cant perform the inherent requirements of the position.

In other words, you must be able to carry out the essential duties of the job.

For example, a person with low vision may not be able to meet the inherent requirements of a job as a delivery driver.

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Is It A Breach Of The Law On Disability Discrimination To Ask About Health During Recruitment

Section 60 of the Equality Act 2010 states that an employer “must not ask about the health of the applicant”. However, under s.60, asking health-related questions does not contravene the law on disability discrimination it is the employer’s reliance on the answers provided that may be a contravention.

The way the provisions in the Act are drafted means that an employer that asks health-related questions prior to making a decision about whom to appoint, and that fails to appoint a disabled candidate, will, in the event of a subsequent disability discrimination claim, have to prove that there were other reasons for its failure to appoint the candidate to the role that were not related to their disability. In other words, there will be a presumption of disability discrimination if the employer asks health-related questions prior to making a job offer, which the employer will have to rebut if an unsuccessful candidate brings a claim of disability discrimination. Defending a claim is likely to be difficult and time consuming. Therefore, it is advisable for employers not to ask health-related questions in most cases.

In addition, the Equality and Human Rights Commission can take direct enforcement action against employers that ask pre-employment health questions, although in practice this is likely to be rare.

Q Is Testing For The Illegal Use Of Drugs Permissible Under The Ada

A. Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.

If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.

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What Is Your Race

There is no situation in which questions about an employee’s race or skin color should be used to determine their eligibility for a job. This protection is granted under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Employers are permitted to ask an employee to reveal their race voluntarily for affirmative action purposes.

Q How Are The Employment Provisions Enforced

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A. The employment provisions of the ADA are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints may be filed with the Equal Employment Opportunity Commission or designated state human rights agencies. Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys’ fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation. A charge must be filed within 180 calendar days from the date the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. A states designated human rights agency should be consulted to determine if the extended filing deadline applies.

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What Is Classed As A Disability

In the Equality Act a disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.

You are covered by the Equality Act if you have a progressive condition like HIV, cancer or multiple sclerosis, even if you are currently able to carry out normal day to day activities. You are protected as soon as you are diagnosed with a progressive condition.

You are also covered by the Equality Act if you had a disability in the past. For example, if you had a mental health condition in the past which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.

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