Disability Discrimination

Under the Americans with Disabilities Act of 1990 (ADA), it is unlawful for an employer to treat an employee or applicant unfavorably because he or she has a disability.

Disability discrimination also occurs when an employer treats an employee or applicant less favorably because he or she has a history of a disability (such as cancer that is controlled or in remission), because he or she is believed to have a disability, or because he or she is related to a person with a disability (even if the employee herself does not have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.

It is also illegal for an employer to harass an employee or applicant because he or she has a disability, had a disability in the past, or is believed to have a disability. Harassment includes, among other things, offensive remarks about a person’s disability.

Harassment can come from just about anyone. The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, or when it results in an adverse employment decision (such as the victim being fired or demoted).

In addition to prohibiting discrimination and harassment, the law requires an employer to provide a reasonable accommodation to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer, also known as an “undue hardship.”

Definition of a Disability:

Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.

An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities (such as walking, talking, seeing, hearing, or learning), a person who has a history of such an impairment, or a person who is perceived by others as having such an impairment.

Disability Discrimination and Reasonable Accommodation:

As noted above, the law requires an employer to provide a reasonable accommodation to an employee with a disability, unless doing so would cause significant difficulty or expense for the employer.

A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

A reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.

While the ADA does not require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps.

Disability Discrimination and “Undue Hardship”:

An employer does not have to provide an accommodation if doing so would cause “undue hardship” to the employer.

Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. However, an employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

Examples of disability discrimination:

A disabled employee’s coworker makes jokes about his or her disability.
An employer asks job applicants questions about their past or current medical conditions, or requires job applicants to take medical exams.
An employer maintains a workplace that includes substantial physical barriers to the movement of people with physical disabilities.
An employer refuses to construct a wheelchair ramp so that an employee in a wheelchair can access the building.

It is unlawful for an employer to treat an employee or applicant unfavorably because he or she is from a particular country or part of the world, because of his

or her ethnicity or accent, or because he or she appears to be of a certain ethnic background (even if he or she is not). For example, an employer may not base an employment decision on an employee’s foreign accent, unless the accent seriously interferes with the employee’s job performance.

National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin.

Notably, discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin.

Further, the law makes it illegal for an employer to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the operation of the business.

In addition, an employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An “English-only rule,” which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.

It is also unlawful for an employer to harass a person because of his or her national origin. Harassment can include, among other things, offensive or derogatory remarks about a person’s national origin, accent or ethnicity.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Examples of National Origin Discrimination:

An applicant is not hired because he or she has a dark complexion and an accent believed to be African.An employee is harassed because he or she is Arab or practices Islam, or is paid less than other workers because he or she is Mexican.
A Chinese woman is not hired because the employer believes she is from Vietnam.
An employee is harassed by coworkers for wearing a hijab.
An employee is harassed because her husband is originally from Afghanistan, or is not promoted because she attends a mosque.