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Disability Discrimination

As a disabled employee, you no doubt have overcome significant hurdles in the workplace related to both your disabling condition and, unfortunately, preconceived misconceptions that commonly surround the disabled. Where feasible, employers must provide you with reasonable accommodations so that you can perform your job. Failing to do so, violates both the federal Americans with Disabilities Act of 1990 and the Pennsylvania Human Relations Act.

If you have experienced disability discrimination, you are protected under these laws and are within your rights to fight the unjust actions of your employer.

Since disability discrimination claims have a very short statute of limitations during which you must assert your disability discrimination claim, it is important not to delay contacting an attorney. Failing to raise your claims in a timely manner will result in your loss of rights to sue your employer for its discriminatory actions.

If you feel you have been subjected to unlawful disability discrimination, you probably have and you need to take the proper actions. The experienced employee-rights attorneys at Waldman Law Group, P.C. have thorough knowledge of all federal and state laws regarding employment discrimination and have the experience to effectively employ this knowledge, while providing you with the highest standard of zealous legal representation.

What laws protect me against disability discrimination?

Title I of the Americans with Disabilities Act of 1990 ("ADA") prohibits private employers, state, local and municipal governments, employment agencies and labor unions with 15 or more employees from discriminating against a "qualified" individual with a "disability", with a record of a disability or perceived as having a disability, in all areas of employment such as hiring, discharge, advancement, compensation, job training and in any other terms, conditions and privileges of employment.

In addition, the Pennsylvania Human Rights Act ("PHRA") gives broader protection to qualified disabled persons. The PHRA covers companies with 4 or more employees. Unlike the ADA, the PHRA does cover independent contractors who are in a profession regulated by the Pennsylvania Bureau of Professional and Occupational Affairs.

The ADA and the PHRA prohibit both intentional discrimination and neutral employment policies of the employer that disproportionately adversely affect those with a known disability.

The Americans with Disabilities Act Amendments Act of 2008 (the "ADAAA") became effective in January 2009 and broadened the coverage of the ADA. Understanding the new ADAAA is critical for identifying a disabled employee’s rights; however, many employers and human resource departments needlessly continue to fail to update their respective ADA policies and practices to reflect the changes to the ADA to the detriment of their employees.

Am I protected by the ADA?

The ADA’s protections extend to job applicants and employees who are considered to be "qualified" disabled persons regardless of whether they work part-time, fulltime or have not yet become permanent employees. To be considered "disabled", and therefore, protected by the ADA and the PHRA, the employee must:

  • have a physical or mental impairment that substantially limits a major life activity with or without the use of mitigating measures such as medications, wheelchairs, etc.
  • have a record of such impairment, or
  • be regarded or perceived by your employer as having an impairment

A qualified disabled employee is one who, with or without reasonable accommodation, can perform the "essential functions" of the job position he or she held or for which he or she is applying. In other words, the employee would be able to perform the job at the same level as others if allowed "reasonable accommodations" such as wheelchair access, a voice-activated computer, a customized workspace, restructuring of job responsibilities including reassignments to a vacant position; or without the need of any such accommodations.

If the employee can perform the essential functions of the job with reasonable accommodation and the accommodation would not create an undue hardship for the employer to establish and maintain, the employer must provide such accommodation or be facing civil liability under the ADA.

What type of employment decisions are covered by the ADA?

Employers cannot discriminate against you in any aspect of employment including the following areas:

  • Hiring and firing
  • Compensation, assignment or classification of employees
  • Transfer, promotion, layoff or recall
  • Job advertisements
  • Recruitment
  • Testing
  • Compelling a medical examination without business necessity
  • Use of company facilities
  • Training and apprenticeship programs
  • Fringe benefits
  • Retirement plans
  • Disability leave
  • Tenure

This list is only a sample of the aspects of employment decisions that employers cannot use your disability to discriminate against you under the ADA and the PHRA.

What is a disability or impairment under the ADA?

A physical impairment is any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems:

  • Neurological
  • Musculoskeletal or special sense organs
  • Respiratory (including speech organs)
  • Cardiovascular
  • Reproductive
  • Digestive
  • Genitourinary
  • Hemic and lymphatic
  • Skin
  • Endocrine

A mental impairment is any mental or psychological disorder, such as:

  • An intellectual disability (formerly termed mental retardation)
  • Organic brain syndrome
  • Emotional or mental illness
  • Specific learning disabilities.

Alcoholism and drug addiction are considered disabilities under the ADA and PHRA if the employee is seeking abstinence or in recovery.

A person with a disability is covered by the ADA only if such physical or mental impairment "substantially limits" the performance of a "major life activity".

"Major life activities" are any basic activities, including major bodily functions, which most people in the general population can perform with little or no difficulty.

Major life activities include, but are not limited to:

  • 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
  • Working

Major bodily functions include, but are not limited to:

  • Immune system functions
  • Special sense organs and skin functions
  • Normal cell growth functions
  • Digestive, genitourinary, bowel and bladder system functions
  • Neurological functions
  • Brain functions
  • Respiratory, circulatory and cardiovascular functions
  • Endocrine, hemic, lymphatic, musculoskeletal and reproductive functions

These lists are not an exhaustive list of major life activities or major bodily functions that have to be limited enough to garner ADA and PHRA protections. The effect on the life of a person with a disability or impairment and whether such a disability or impairment substantially limits a major life activity is considered on a case by case basis.

What is a "Reasonable Accommodation"?

According to the ADA, a reasonable accommodation "means the steps which must be taken to accommodate the physical or mental limitations of a qualified disabled person that are actually known or should have been known to the employer." A few examples of reasonable accommodation include:

  • The employer’s making the workplace readily accessible to disabled persons
  • The employer’s purchasing or modifying the necessary equipment to enable the disabled to perform the job’s functions
  • The employer’s making an effort to restructure a disabled person’s job. This may include a reassignment to a vacant position (but the employer is not required to create a new position)

Not all employers may be able to afford such accommodations. In that sense, the employer will defend its refusal to make an accommodation by claiming that the requested "reasonable accommodation" would create an "undue hardship" by being too expensive to provide or maintain, and therefore, would not be reasonable. However, an employer must be able to prove this claim and to prove that the employer considered other, less expensive, options for an accommodation or it will face civil liability under the ADA and PHRA.

How can I request Reasonable Accommodations for my disability?

The ADA requires that you notify your employer of your need for a reasonable accommodation for a disabling condition. You do not have to provide a written request, however, it is always prudent to put the request in writing so that you can establish that you, in fact, did request such reasonable accommodation if your employer denies you made such a request. However, generally, simply telling your employer what you need and the reason for the need is sufficient.

The ADA also requires you to work with your employer in finding an accommodation that is suitable to both of you. This is known as the "interactive process". Your employer may require that you submit medical certification to prove that you need such requested accommodations and may require that you be evaluated by a physician of the employer’s choosing. Failing to do either of these is a legal reason justifying your employer’s refusal to accommodate your disability.

How do I make a disability discrimination claim? Can I sue now?

Before you file a disability discrimination lawsuit in federal or state court, the ADA requires that you first file a charge of disability discrimination with the United States Equal Employment Opportunity Commission ("EEOC") or the Pennsylvania Human Relations Commission ("PHRC") within 180 days of the discriminatory action. This strict time limit, often referred to as the "statute of limitations", applies to all charges of disability discrimination. Failing to raise your disability discrimination claims within that time will result in your loss of rights to sue your employer for its discriminatory actions. Since disability discrimination claims have a very short statute of limitations it is important not to delay contacting an attorney.

When you file a charge of disability discrimination with either of these agencies, you must allege all of the actions that you believe are discriminatory. Failure to do so may result in your losing the right to pursue those disability discrimination claims against your employer with the EEOC or PHRC or in later court proceedings.

You can file a charge of disability discrimination with the EEOC or PHRC by yourself if you are unable to obtain an attorney to assist you. However, it is recommended that you consult with an attorney so that you do not mistakenly omit essential facts and allegations of discrimination in such a charge, and by such omission, lose the right to pursue those claims against your employer. For more information and a more detailed explanation of the complaint process, please visit the Pennsylvania Human Relations Commission, website (http://www.phrc.state.pa.us/) or the Equal Employment Opportunity Commission’s website (http://www.eeoc.gov/)

The attorneys at Waldman Law Group, P.C. are familiar with the procedures and processes of both the EEOC and the PHRC and are willing to assist you in your filings with the EEOC or PHRC. Contact an attorney at Waldman Law Group, P.C. by telephone or the contact sheet to schedule a consultation to ensure that your legal rights are properly pursued with the assistance of sound legal counsel.

When can I bring a disability discrimination lawsuit in court?

After you file a formal charge with the EEOC or the PHRC, your employer will have an opportunity to respond. If your charge of disability discrimination is resolved with the EEOC or the PHRC, you will not have to file a lawsuit in court.

However, in most cases, neither the EEOC nor the PHRC resolves these cases, and you will have to decide whether to file a disability discrimination lawsuit in court if you want to continue to pursue your employer for its discriminatory practices. If neither agency resolves your claims of disability discrimination, the appropriate agency will issue what is known as a Notice of Right to Sue indicating that you have only 90 days to file a lawsuit with the federal court or Pennsylvania state court. If you do not do so, you will lose forever your opportunity to hold your employer responsible for its acts of disability discrimination. Since disability discrimination claims have a very short statute of limitations it is important not to delay contacting an attorney.

What types of damages are available for disability discrimination claims?

The ADA remedies include:

  • Back pay
  • Differences in pay between your current pay and the pay you could have received if your employer did not illegally discriminate against you
  • Front pay
  • Pre-judgment and post-judgment interest on the back pay awards
  • Compensatory damages (i.e. pain and suffering or mental anguish)
  • Punitive damages (meant to punish the employer for intentional disability discrimination)
  • Attorneys' fees and court costs
  • Employees may also obtain injunctive relief, such as reinstatement of their job, in appropriate circumstances.

If you feel you have experienced disability discrimination, you probably have. Contact an attorney at Waldman Law Group, P.C. by telephone or the contact sheet to schedule a consultation to ensure that your legal rights are properly pursued with the assistance of sound legal counsel.