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Disability Discrimination |
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A deaf high-school girl applied for a room-service position with a national hotel chain. The manager told her she wasn’t qualified for that position because of her hearing loss. But he offered her a job bussing tables and sent her on to the HR department to complete the paperwork. The HR manager, however, said she’d first have to check with her bosses to see if they had a policy against hiring the deaf. She’d be in touch, she said. But she never called back.
Clearly the victim of employment discrimination, the woman went to the Equal Employment Opportunity Commission (EEOC), which soon settled with the chain for $75,000. As the EEOC’s regional director said: “Qualified individuals with disabilities deserve the same opportunities to work as anyone else. Disability does not mean inability.” That goes double in this case—the girl graduated third in her high school class and communicated fluently by signing, reading lips, writing notes, and speaking.
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Don’t Run Afoul of the ADA
Disability discrimination cases like this one are covered by the Americans with Disabilities Act (ADA), an employment law that makes it illegal to discriminate against anyone with a disability. Title I of the Americans with Disabilities Act covers employment in all aspects, including:
- Recruiting
- Hiring and firing
- Advancement and training
- Job assignments
- Compensation and benefits
- Leaves and layoffs
- Any other terms, conditions, and privileges of employment.
The ADA applies to private employers, state and local governments, employment agencies, and labor unions with fifteen or more employees.
Besides the Americans with Disabilities Act, the EEOC oversees a number of discrimination laws you need to know about—learn more in The Employer’s Legal Handbook. It will help you understand employee rights.
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Who Qualifies as Disabled
In the eyes of the law, a disabled person is someone who:
- Has a physical or mental impairment that substantially limits one or more major life activities (like walking, seeing, breathing, etc.). Impairments include physical challenges like blindness or deafness; diseases like multiple sclerosis or AIDS; chronic conditions like asthma or high blood pressure; and mental illnesses.
- Has a record of such impairment.
- Is regarded as having such an impairment.
A “qualified” employee or applicant under the ADA is a person who, with or without reasonable accommodation, can perform the essential functions of a job.
If you turn away a qualified disabled applicant or employee who can do the job one way or another (barring undue hardship), that’s discrimination. In the story above, for example, the woman’s deafness had nothing to do with her ability to bus tables or serve at banquets—especially when you consider her skill at communicating.
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Accommodate the Disabled
What’s a reasonable accommodation? Any change or modification you can make to the job or work environment that enables a disabled applicant or current employee to perform a job’s main duties. This might involve installing an additional piece of equipment, changing a procedure or policy, providing extra help, restructuring a job, or modifying the building to make it accessible.
Accommodations may also be necessary when interviewing. For example, you might have to read an application aloud to a blind person and fill in the blanks for him or her.
Too much trouble? In most cases, accommodations are modest and inexpensive. And a disabled employee often knows exactly what kind of accommodation is needed. Accommodations often cost nothing, such as with a policy exception, modified work schedule, or reassignment to a vacant position.
The law does allow employers to avoid accommodations that cause an undue hardship. These are accommodations that would be unduly costly, extensive, disruptive, or alter the nature or operation of the business in a fundamental way. If a small, cash-strapped company, for instance, would have to add on to its building to accommodate a potential employee, it could likely claim an undue hardship (but it’s something to check with an attorney first).
Handling accommodations and understanding hardships is easier with this book: Everyday Employment Law: The Basics.
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Performance Counts
Disability discrimination occurs when you deny job opportunities or take employment actions like a demotion because of a person’s disabilities—and not because of their skills, experience, productivity, attendance and so forth.
You don’t, therefore, have to give preference to disabled candidates over better-qualified ones; you don’t have to relax your hiring standards; and you may hold disabled employees to the same performance standards others must meet.
And while alcoholism may be covered by the ADA, you don’t need to put up with drunkenness on the job. As for current users of illegal drugs, the ADA does not protect them at all. (Confirm your suspicions of on-the-job alcohol or drug impairment with Breathscan® Alcohol Detector and AutoSplit Drug Test.)
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Danger: Harassment
Discrimination against the disabled can turn into harassment when jokes, jibes, and general hostility affect the “terms and conditions” of a disabled person’s job. Supervisors must, therefore understand the nature of disability discrimination and work to keep it out of the workplace. You should also have a broad anti-discrimination policy that lets all employees know their rights, responsibilities, and remedies concerning harassment.
MyBiz Employee Handbook can help you with the wording of the policies you’ll need, while the Harassment Prevention Program educates the workforce. The G.Neil ADA Fact Sheets is also indispensable—it puts the law in terms your employees will understand.
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Watch Your Perceptions
The ADA is designed to help employers and employees get beyond the myths, stereotypes, and assumptions they have regarding the disabled. “The ADA requires employers to look carefully at the abilities of each individual,” said EEOC attorney Joseph Mitchell, “instead of making assumptions about what he or she can and cannot do.”
Think in terms of ability rather than inability, then, and you’ll keep your employees happy and stay out of court.
Note: The ADA requires covered employers to post a notice describing its basic provisions. G.Neil’s 5-in-1 Federal Labor Law Poster® covers the ADA as well as other employment laws.
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| Tools To Avoid Discrimination |
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