Under The ADA

The Americans with Disabilities Act (ADA) is a federal law which protects employment discrimination against people with disabilities by private employers, state and local governments, labor organizations, and labor management committees. The ADA protects people with disabilities from job discrimination based on disability. To qualify under the ADA, you must have record of or be recognized as having a substantial impairment that severely impacts your life such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working. In addition to proving disability, you must also satisfy the requirements necessary for the job which include education, experience, skills, and accreditation. Furthermore, you must be able to perform the necessary functions of that job with or without reasonable accommodation. If a function is not essential, an employer cannot refuse to hire or fire you from a job. It is also illegal for an employer to retaliate against an employee for expressing your legal rights under the ADA.

What Employers Are Covered By The ADA?

Job discrimination against people with disabilities is illegal if practiced by:

• Private employers,
• State and local governments,
• Employment agencies,
• Labor organizations,
• And labor-management committees.

The part of the ADA enforced by the Equal Employment Opportunity Commission (EEOC), a federal agency, outlaws job discrimination by all employers, including State and local government employers, with 25 or more employees after July 26, 1992, and all employers, including State and local government employers, with 15 or more employees after July 26, 1994. Another part of the ADA, enforced by the U.S. Department of Justice (DOJ), prohibits discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, after January 26, 1992.

Because the ADA establishes overlapping responsibilities in both the EEOC and DOJ for employment by State and local governments, the Federal enforcement effort is coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities. In addition, since some private and governmental employers are already covered by nondiscrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ, and the Department of Labor similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act.

The Act also protects you if you are a victim of discrimination because of your family, business, social or other relationship or association with an individual with a disability.

When you are applying for employment, employers may not ask if you are disabled or enquire about the nature/severity of your disability.

Are You Protected By The ADA?

If you have a disability and are qualified to do a job, the ADA protects you from job discrimination on the basis of your disability. Under the ADA, you have a disability if you have a physical or mental impairment that substantially limits a major life activity. The ADA also protects you if you have a history of such a disability, or if an employer believes that you have such a disability, even if you don’t.

To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

If you have a disability, you must also be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from job discrimination by the ADA. This means two things. First, you must satisfy the employer’s requirements for the job, such as education, employment experience, skills or licenses. Second, you must be able to perform the essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job.

What Is Reasonable Accommodation?

Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

• Providing or modifying equipment or devices,
• Job restructuring,
• Part-time or modified work schedules,
• Reassignment to a vacant position,
• Adjusting or modifying examinations, training materials, or policies,
• Providing readers and interpreters, and
• Making the workplace readily accessible to and usable by people with disabilities.

An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship — that is, that it would require significant difficulty or expense.

What Employment Practices Are Covered?

The ADA makes it unlawful to discriminate in all employment practices such as:

• Recruitment
• Firing
• Hiring
• Training
• Job assignments
• Promotions
• Pay
• Benefits
• Lay off
• Leave
• All other employment related activities.

It is also unlawful for an employer to retaliate against you for asserting your rights under the ADA. The Act also protects you if you are a victim of discrimination because of your family, business, social or other relationship or association with an individual with a disability.

Can An Employer Require Medical Examinations Or Ask Questions About A Disability?

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. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. 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.

An employer cannot require you to take a medical examination before you are offered a job. Following a job offer, an employer can condition the offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer’s business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer’s business. Your employer may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers’ compensation laws to the agencies that administer such laws.

The results of all medical examinations must be kept confidential, and maintained in separate medical files.

Do Individuals Who Use Drugs Illegally Have Rights Under The ADA?

Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. The ADA does not prevent employers from testing applicants or employees for current illegal drug use.

What Do I Do If I Think That I’m Being Discriminated Against?

If you think you have been discriminated against in employment on the basis of disability, you should contact the U.S. Equal Employment Opportunity Commission, or the state California Department of Fair Employment and Housing. A charge of discrimination generally must be filed within 180 days of the alleged discrimination. The state now has a three year statute of limitations for asserting disability discrimination claims. However, to protect your rights, it is best to contact EEOC or the DFEH promptly if discrimination is suspected.

You may file a charge of discrimination on the basis of disability by contacting any EEOC field office, located in cities throughout the United States. If you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorneys fees.

While the EEOC can only process ADA charges based on actions occurring on or after July 26, 1992, you may already be protected by State or local laws or by other current federal laws. EEOC field offices can refer you to the agencies that enforce those laws.

Federal employees can only pursue disability claims through the EEOC, and file under the ADA.

If you feel you have been discriminated against as a result of your disability, please contact us at (310) 477-7767 or fill out the form here to discuss the issues surrounding your situation.