The Americans with Disabilities Act prohibits discrimination in all aspects of employment including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. In analyzing any claim under the ADA, the first step is to determine if the employee has a disability. A disability is defined as:
- a physical or mental impairment that substantially limits one or more major life activities;
- a record of such impairment; or
- being regarded as having such an impairment.
“Major life activities” can include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Major life activities also include the operation of major bodily functions such as functions of the immune system, respiratory functions, and cardiovascular functions, just to name a few. Bear in mind this is not an exhaustive list. In fact, 29 CFR §1630(h)(i)(2) specifically provides that the term “major” is not to be strictly interpreted to create a demanding standard for disability.
Once a disability has been established, the employee must then establish that he or she is qualified to perform the job. To be considered a qualified employee, the employee must establish that he or she can perform the essential functions of the job with or without a reasonable accommodation. Essential functions are those that are considered to be fundamental to the job.
In addition to prohibiting discrimination, the ADA also requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless doing so would cause an undue hardship. Examples of reasonable accommodations may include job restructuring, part time or modified work schedules, reassignment to vacant positions or modifications to equipment or devices. The responsibility to request a reasonable accommodation generally lies with the employee.
A significant amount of ADA litigation involves the denial of a reasonable accommodation. Of course, the ADA also prohibits discrimination and retaliation. To bring a claim under the ADA, an employee must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days of the discriminatory act. If successful, the ADA allows an employee to seek a full range of damages including economic and non-economic compensatory damages, punitive damages, attorney’s fees and other injunctive and equitable relief.
It is important to note that the ADA only applies to employers with 15 or more employees. That is not to say that smaller employers are allowed to discriminate. Ohio has its own discrimination laws which prohibit disability discrimination in the workplace. Ohio’s discrimination statute applies to employers with 4 or more employees. An employee who wishes to bring a claim under Ohio’s discrimination statute is not required to first file a complaint with the EEOC but rather, may proceed immediately to court to file a lawsuit.
If you feel you have been a victim of disability discrimination, please contact Dworken & Bernstein for a free consultation.