As previously discussed, even if you are an at-will employee, you cannot be fired for certain reasons including disability or medical or genetic condition. Even if you weren’t fired, you cannot be discriminated against in other ways by your employer for your disability or medical or genetic condition.
What is discrimination?
- Discrimination means treating an employee unfavorably in hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, or any other term or condition of employment.
Is every kind of discrimination illegal?
- It may be surprising, but not all discrimination is illegal. For example, it is not illegal to discriminate against hiring someone because they do not have the required educational credentials or years of experience in the field. It is also not illegal to layoff someone based strictly on lowest seniority or job performance. As to disability, a person must be able to perform the essential tasks of the job with reasonable accommodation.
- Beware that some employers will give a legal reason for discrimination to hide the true illegal one. This is known as a “pretext.”
What does it mean to be disabled to be protected under the Americans with Disabilities Act?
- The condition can be a physical or mental condition.
- The condition must substantially limit a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function, such as brain, musculoskeletal, respiratory, circulatory, or endocrine function).
- Having a history of disability.
- The person has an actual or perceived disability (meaning that the person is not actually physically or mentally disabled, but the employer is treating them as if they were disabled for a condition that is not short-term or minor).
- The substantial limitation need not be long-term or severe and may be periodic (meaning that the person may suffer from episodes of substantial impairment).
What are the illegal employment practices prohibited by discrimination based on disability?
- Harassment. 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 employee being fired or demoted).
- Examples of harassment based on disability.
- Disparaging or offensive remarks about a person’s actual or perceived disability.
- Disparaging or offensive remarks about a person’s current or past disability.
- Disparaging or offensive remarks about a person’s association with a disabled person (for example, a spouse or partner).
- Who is the harasser? The harasser can be the employee’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a contractor, client, or customer.
- Examples of harassment based on disability.
- Failure to provide reasonable accommodation for a disability. Under the law, employers must provide reasonable accommodation for a person’s disability in order to assist the employee perform the job duties, unless such accommodation would present an undue hardship for the employer.
- What are some examples of accommodations that might be provided?
- Wheelchair accessible workplace.
- Computer hardware or software to assist blind or hearing-impaired employees.
- Schedule changes or remote work.
- Temporary leave.
- Job reassignment.
- What about undue hardships?
- The employer may refuse an accommodation request if it is too difficult or too expensive to provide, considering the employer's size, financial resources, and the needs of the business.
- Nevertheless, the employer may have to incur some cost if it is appropriate under the circumstances.
- The employer may not just flatly refuse the accommodation request if another effective option can be provided. Additionally, the employer has a duty to engage in a deliberative process with the employee in order to find a reasonable accommodation.
- What are some examples of accommodations that might be provided?
- Disability-related questions and medical examinations.
- An employer may not ask about a person’s disability or require a medical exam in the job application process. The employer may only ask if the person can perform the job with or without an accommodation.
- After the job offer, the employer can condition the offer on the employee’s taking a medical exam and/or answering disability-related questions, IF all new employees in the same type of job are subject to the same requirements. The offer may only be revoked if the results indicate that the employee’s condition prevents the safe performance of the job.
- After starting work, an employer may only require a medical exam or ask disability-related questions if the employee requests a reasonable accommodation for a disability or the employer has objective evidence that the employee cannot perform the job safely due to a medical condition.
- Confidentiality. All medical records must be kept strictly confidential and in separate files from the employee’s personnel file.
- Retaliation and Interference. It is illegal to treat someone unfavorably or subject that person to any adverse employment action, such as demotion or termination, because that person requested a reasonable workplace accommodation, complained about one of the above forms of discrimination, or if that person participated in an investigation of discrimination or testified against the employer for discriminating against themselves or others.
Medical or genetic information. In brief, the law protects individuals from employment discrimination based on medical or genetic information. Thus, an employer may not discriminate against an employee or applicant for employment because of information received from a genetic test of the individual or a family member.
Because you are legally protected from interference with your rights and retaliation, you should not be afraid to request a reasonable workplace accommodation, or complain or truthfully report workplace discrimination. If you believe that one of the above applies to you, or if you have any concerns about this topic, you should seek legal guidance.
Contact Us for Legal Assistance
When it comes to looking for legal help with any type of illegal employment discrimination, Weiler Law PLLC is here to help. Our team of attorneys understands the complexities involved in these cases and is dedicated to providing the best possible representation. We can work closely with you throughout the process to ensure that your rights are protected.