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Definition Of Disability And Discrimination

1. What constitutes disability discrimination or harassment?

Discrimination against disabled individuals occurs when they are treated differently in the workplace as a result of their disability, perceived disability, or association with a disabled person. Several examples of disability discrimination include the following:

Discrimination against individuals with a physical or mental disability in all aspects of employment, including recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, layoff, and leave, as well as all other employment-related activities.

Discrimination against an employee based on his or her disability.

Inquiring about job applicants’ past or current medical conditions or requiring job applicants to undergo medical examinations.

Creating or maintaining a workplace that has significant physical barriers that prevent people with physical disabilities from moving freely.

Refusing to provide a reasonable accommodation that would enable employees with a physical or mental disability to work.

If any of these events occurred on the job, you may have been a victim of disability discrimination. If you have a disability and are qualified for a job, federal and state laws protect you from employment discrimination, harassment, and retaliation on the basis of your disability. Additionally, you are protected if you are a victim of discrimination as a result of your association (whether familial, business, social, or other) with a disabled person.

 

2. What are some examples of discrimination against people with disabilities?

Discrimination against disabled people can manifest itself in a variety of ways. Direct discrimination, indirect discrimination, failure to make reasonable accommodations, and harassment are the most common forms of disability discrimination.

Direct Discrimination occurs when you are treated less favorably than another person in a comparable situation due to your disability. For instance, a restaurant may permit a family with a child who has cerebral palsy to dine outside but not in the family room. The disabled child’s family is denied the same choices as other families and almost certainly has a case for direct discrimination.

Indirect Discrimination occurs when a particular policy adversely affects individuals with disabilities. For instance, a local government entity, such as a health department, may create a flyer informing residents about its services. It does not produce an easy-to-read version of the flyer to save money. This makes access to information and services more difficult for someone with a learning disability, which may constitute indirect discrimination. Unless your employer can demonstrate a legitimate reason for the policy, this type of discrimination is illegal.

If your employer is aware of your disability, he or she is required to make reasonable accommodations. For instance, an employee with impaired mobility may require a closer parking space; however, the employer may refuse to provide one despite being aware of the need. If it is determined that making this adjustment would have been reasonable, the employee may have a claim for failure to make reasonable accommodations. What is reasonable is typically determined by the individual or group of individuals who determine the facts in a legal proceeding, such as the judge or jury.

When someone treats, taunts, or antagonizes you in a way that makes you feel humiliated or offended, this is called harassment. For instance, if an employee is consistently teased and called names due to his or her disability, there is a good chance that the employee will file a harassment claim.

 

3. Which federal statute(s) apply to individuals with disabilities?

Amendments to the Americans with Disabilities Act of 2010 (42 U.S.C. 12101 et seq) ( percent 26ldquo;ADA Amendments Act percent 26rdquo; or percent 26ldquo;Act percent 26rdquo;) (2008 Amendment to the Americans with Disabilities Act, Pub. L. No. 110-325, 122 Stat. 3553 (codified as amended at 42 U.S.C. 12101 (1990)))

Private employers, state and local governments, employment agencies, and labor unions are prohibited from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other areas of employment under the ADA. Non-employment-related sections of the ADA address discrimination by governmental agencies and in public accommodations.

To learn more about the ADA in detail, visit the Equal Employment Opportunity Commission’s website on Disability Discrimination in the United States.

The Rehabilitation Act of 1973 (29 United States Code Section 701)29 United States Code Section 791 (1976)

Discrimination on the basis of disability is prohibited under the Rehabilitation Act in Federal programs, programs receiving Federal financial assistance, Federal employment, and the employment practices of Federal contractors. The Rehabilitation Act uses the same standards for determining employment discrimination as the Americans with Disabilities Act.

These are the primary federal laws prohibiting workplace discrimination, although there are numerous additional federal laws prohibiting disability discrimination. For example, the Air Carrier Access Act of 1986 prohibits discrimination in the provision of air transportation, and the Architectural Barriers Act of 1968 requires that buildings and facilities designed, constructed, altered, or leased with certain federal funds after September 1969 be handicapped accessible and usable. The Fair Housing Act prohibits discrimination against disabled people and other minorities in the sale, rental, and financing of housing, and the Individuals with Disabilities Education Act protects students with disabilities and ensures that all children with disabilities have access to a free appropriate public education.

Most states’ laws prohibit discrimination on the basis of disability, and some state laws have different standards for determining who is covered by the state law than the ADA. While the discussion below will concentrate on the ADA Amendments Act, you should check your state’s laws and/or consult with a local attorney to determine whether your state’s law provides additional protection.

 

4. Who is legally defined as disabled?

The ADA Amendments Act defines a person with a disability as a one who:

  • Has a real physical or mental impairment that significantly limits one or more of the individual’s major life activities;

  • Has a history of such a disability; or

  • They may not have a disability but are considered to have one.

Additionally, the ADA prohibits discrimination against a person solely on the basis of his or her association with a person who has a disability. Additionally, if an employee alleges that his or her employer failed to make reasonable accommodations, the employee must have an actual disability or a record of one. The Americans with Disabilities Act Amendments Act modifies how these criteria should be interpreted — see question 5.

 

5. How will the statutory definition of disability be interpreted?

The ADA Amendments Act emphasizes the importance of a broad interpretation of the term “disability.”

The Act directs the EEOC to revise the section of its regulation that defines what constitutes a material restriction. Additionally, the Act broadens the definition of “significant life activities” to include the following:

Previously recognized activities, such as walking and seeing, as well as new ones, such as reading, bending, and communicating, are included in the law.

Significant bodily functions include “immune system functions, normal cell growth, digestive, bowel, and bladder functions, respiratory, neurological, brain, circulatory, endocrine, and reproductive functions.”

When determining whether an individual has a disability, mitigating measures (such as the ability to use medication to overcome the limitations of a medical condition or to successfully use a prosthetic, hearing aid, glasses, or other assistive device) other than “ordinary eyeglasses or contact lenses” will be disregarded. Mitigating measures include an individual’s ability to use medication to overcome the limitations of a medical condition or to use a prosthetic, hearing aid, glasses, or other assistive device successfully.

Even if an impairment is temporary or in remission, it will be classified as a disability if it significantly limits a major life activity when active.

If you are subjected to an ADA-prohibited action, such as non-hiring, as a result of a real or perceived impairment, you will meet the “regarded as” definition of disability, unless your impairment is minor and in transition.