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Employment Discrimination on the Basis of Disability

Disability discrimination is the unequal treatment of a person because of his or her real or perceived disability. In an employment setting, similar to other types of discrimination, disability discrimination may arise in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and other employment setting or condition.

Federal and state laws protect persons with known qualified disabilities by requiring employers to provide them with reasonable accommodations. These requirements usually apply to employers with 15 or more employees and are subject to undue hardship by the employer. Local ordinances may impose additional restrictions.

Federal law regulating disability discrimination

Title I of the federal American with Disabilities Act of 1990 (ADA) focuses on employment practices, and it makes it illegal to discriminate against a person with a qualified disability who applies for employment or is employed in the private sector and in state and local governments. In addition, Title V of the ADA includes an anti-retaliation provision that penalizes employer retaliation against an employee because he or she complained about disability discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.[1]

Under the ADA, an employer with 15 or more employees is required to provide reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability who is a job applicant or employee. The reasonable accommodations requirement applies unless doing so would impose an undue hardship on the operation of the employer’s business.

The first class action on the basis of disability in the workplace, Bates v. UPS, was brought in 1999 before the U.S. District Court for the Northern District of California on behalf of deaf and hard of hearing workers at a national level. The lawsuit established a legal precedent for qualified workers and customers to be protected under the ADA. The action resulted in a settlement in 2003, when UPS agreed to pay $5.8 million and develop a comprehensive accommodations program implemented in their facilities across the U.S. Among the accommodations provided to employees with disabilities, UPS agreed to address communication barriers and develop a communication policy, ensure equal conditions and opportunities for advancement, and implement an emergency alert system to ensure the safe facility evacuation by deaf and hard of hearing employees.

Definition of Disability

BlindThe ADA defines a covered disability as a physical or mental impairment that substantially limits one or more major life activities, a history of having such an impairment, or being regarded as having such an impairment. A disability can be temporary or permanent and does not need to be severe. Among the disabilities qualifying for protection are: deafness, blindness, an intellectual disability, partially or completely missing limbs, or mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus (HIV) infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

Other conditions may qualify as disabilities, depending on the condition of the individual’s mental or physical health in the absence of restorative “mitigating measures” (e.g., medication, therapy, assistive devices, etc.)

The ADA excludes certain conditions that tend to result in illegal activity in order to protect from abuse of the statute (e.g., pedophilia, kleptomania, voyeurism, etc.) Gender disorders are also excluded from the definition.[2]

An employee or job applicant who tests positive for drugs or alcohol is not automatically considered to have a disability. However, drug and alcohol addiction could be considered a disability for reasonable accommodations purposes under the law.

Major Life Activities

Examples of major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as the operation of several specified major bodily functions.

Reasonable Accommodation

An employer provides a reasonable accommodation by facilitating, for example, special equipment, scheduling, or work assignments to aid the person in performing their job. The individual who receives the accommodation must still be qualified to perform the essential functions of the job and meet the normal performance requirements.

Undue Hardship

An employer is not required to provide a reasonable accommodation when this would impose undue hardship or significant difficulty or expense.

The Rehabilitation Act of 1973 (“Rehab Act”) prohibits discrimination on the basis of disability in programs conducted by federal agencies, in programs receiving federal financial assistance, in federal employment, and in the employment practices of federal contractors and subcontractors. The Rehab Act’s standards for employment discrimination are the same as those under Title I of the ADA. In addition to prohibiting discrimination on the basis of a disability, the Rehab Act levies the responsibility on designated employers to take affirmative action to hire and advance in employment individuals with qualified disabilities.  It also requires federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public.

Additional protections may be afforded to female employees under the Pregnancy Discrimination Act (PDA), for temporary disability caused by a medical condition related to pregnancy or childbirth.[3]

Protections under state and local law

The Florida Civil Rights Act (FCRA) makes it illegal for an employer to discriminate on the basis of handicap, among other factors. FCRA does not define handicap or disability and it does not provide for mandatory accommodations. However, the statute conforms to the ADA definition of disability and the provision of reasonable accommodations, subject to undue hardship. Florida courts use the ADA’s definition of disability in cases brought before their jurisdiction under the statute. For this type of discrimination, FCRA covers employers with 15 or more employees. The Florida Commission on Human Relations (FCHR) is the state agency overseeing discrimination in Florida.

Employers should also be aware of local ordinances that may impose additional requirements on employers within the locality. For example, a City of Orlando’s anti-discrimination ordinance applies to employers with 5 or more employees working more than 30 hours per week, or more than 10 employees, irrespective of the number of hours worked per week. It makes it illegal to discriminate against an individual based on disability, among other factors. The City of Orlando’s Human Relations Review Board is responsible for evaluating complaints.

Relief

The ADA allows private plaintiffs to receive injunctive relief (a court order requiring the public accommodation to remedy violations of the accessibility regulations), attorneys’ fees, and does provide monetary rewards to private plaintiffs. Damages under the Rehab Act include injunctive relief and attorney’s fees and costs. In addition, the remedies, procedures, and rights set forth in Title VII of the Civil Rights Act of 1964 apply to plaintiffs under the Rehab Act.

Florida law provides for monetary damages to private plaintiffs, including the recovery of punitive damages, injunctive and/or affirmative relief. It also provides for the enforcement of any damage awards by the courts.

An award depends on the type of claim, the individual facts of the case, and how it is pursued. For additional information, see the Damages in Discrimination Claims blog article.

Processing a Discrimination Claim

Individuals may file a Title I ADA lawsuit in Federal court only after they receive a “right-to-sue” letter from the EEOC. State claims submitted to FCHR do not necessarily have to await for a final determination by the agency before claimants can proceed to seek private relief in court.  For more information on processing and managing a discrimination claim, see the Processing Claims with the EEOC and Processing Claims with the FCHR blog articles.

Due to the specific processes that must be followed and the applicable time limits for agency and court filing, it is in an employee’s best interest to become informed, including engaging the assistance of an attorney to assist in their discrimination matter.  An employer facing the defense of a discrimination claim should engage legal counsel to prepare for forthcoming administrative inquiries and potential litigation.

Whether you are an employer or employee, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a situation involving discrimination on the basis of disability and offer legal representation, if necessary. Click here to contact an attorney now.

[1] In addition, see Whistleblower Laws, In a Nutshell blog article for more information about employer retaliation for employee reporting of employer’s wrongdoing.

[2] See the Gender Identity, Transgender Status, and Sexual Orientation Discrimination for more information about protections available in these areas.

[3] See the Employment Discrimination on the Basis of Pregnancy blog article for more information.

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