Disability Discrimination in the Workplace on the Rise

January 30, 2011 (Press-News.org) 2010 saw a drastic increase in the number of workplace disability discrimination claims. According to the Equal Employment Opportunity Commission (EEOC), the agency received a record 100,000 complaints of disability discrimination in 2010, a 17% increase over the previous year.

The rise in claims was attributed in part to amendments to the Americans with Disabilities Act (ADA) that went into effect in 2009. Under the ADA Amendments Act of 2008, Congress increased the scope of qualifying disabilities to make it easier for individuals to receive protection under the important federal civil rights law. This included overturning a previous U.S. Supreme Court ruling that said available mitigating measures must be considered prior to determining if an individual has a disability.

The ADA and Reasonable Accommodation

By broadening the definition of disability under the ADA, Congress made it possible for many who have suffered discrimination in the workplace to take action against their employers for their discriminatory actions, including the failure to provide reasonable accommodation.

Under the ADA, federal and state employers and private employers with at least 15 employees are required to provide reasonable accommodations to employees and job applicants with disabilities who are otherwise qualified for an employment position. Thus, the employee must first be qualified for the position, which means he or she must have the requisite skill, training, education and experience for the job, prior to being entitled to a reasonable accommodation.

The employer's duty to provide a reasonable accommodation is triggered once the employee makes a request for one. The employer and the employee then should work together to determine which accommodation(s) will help the employee perform his or her job duties.

Some examples of reasonable accommodations include:
- Modified work stations and equipment, including telephones, desks and computers
- Modified work schedules, including part-time
- Temporarily or permanently moving a disabled employee to a different vacant position
- Increase accessibility to common areas, including break rooms and restrooms
- Installing wheelchair access ramps

Employers are not required under the ADA to provide employees with the exact accommodations they request or with the most expensive or best available accommodation. Federal law only requires that employers provide accommodations that will allow employees with disabilities to achieve the same level of performance and enjoy the same benefits of employment as other similarly situated, non-disabled workers.

Employers also do not have to provide a reasonable accommodation if it would cause undue hardship for the employer's business. What is or is not considered an undue hardship is determined on a case-by-case basis by considering a number of factors, including the cost and difficulty of procuring the accommodation and the size, revenue and nature of the employer's business.

Lastly, employers do not have to provide reasonable accommodations that are personal use items. This includes eye glasses, hearing aids, wheelchairs and other items that the employee can use outside of the workplace. The accommodation must be work-related for the purpose of helping the employee perform the essential functions of his or her job.

Temporary Medical Leave and Returning to Work

In some cases, temporary medical leave can be a reasonable accommodation for a worker with a disability. However, there has been abuse of this accommodation and some employers have fired employees at the end of their medical leave rather than allow them to return to work.

In a recent case, merchandiser Jewell Osco agreed to settle a $3.2 million disability discrimination lawsuit filed against it by the EEOC for doing just that. According to the EEOC, Jewel Osco had adopted a policy of firing employees with disabilities once they reached the end of their medical leave rather than providing them with reasonable accommodations that would have allowed them to return to work. The EEOC alleged that the company had fired around 1000 employees under this policy in the last seven years.

When an employee with a disability takes medical leave, the ADA requires that the employee be allowed to return to his or her job or an equivalent position, unless the employer can show that it would create an undue hardship to do so. While employers always can fire a disabled employee for a legitimate job-related reason, employers cannot fire them because of their disability or as a means to circumvent their legal obligations under the ADA, including the duty to provide reasonable accommodations.

Getting Help for a Disability Discrimination Claim

If you believe you have been discriminated against in the workplace because of your disability, contact an experienced employee rights attorney today. While the ADA requires you to first file a discrimination claim with the EEOC, Michigan law provides you other sources of relief, including the right to take legal action immediately. For more information on your rights under state and federal anti-discrimination laws, contact a knowledgeable employment law attorney today.

Article provided by Nacht Law
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