Labor and Employment

Enforcing the ADA

Several federal laws protect employees and job applicants from employment discrimination. The Americans with Disabilities Act (ADA) added disabled people to the list of protected groups.

Title I of the ADA Covers Employment-Related Disability Discrimination

All private and state and local employers with 15 or more employees are covered under Title I of the ADA. State laws may cover smaller employers. The ADA covers employees disabled in a major life activity.

A sampling of employment-related major life activities under the ADA:

  • Seeing
  • Hearing
  • Walking
  • Standing
  • Sitting
  • Breathing
  • Performing ordinary manual labor

The Americans with Disabilities Act Amendments Act of 2008

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) went into effect on January 1, 2009. Revised regulations are to be released in the near future. Key changes under the ADAAA include:

  • Stressing and clarifying that "disability" has a broad meaning. This change responds to narrow readings of the ADA by courts. It should now be easier to show that a disability exists
  • Expanding the definition of major life activities. The amendment provides non-exhaustive lists of major life activities. Major bodily functions are included. The law cites reading, bending and communicating as major life activities
  • Beneficial or mitigating measures don't count when determining if a disability exists. A person's use of things like medication or having a special diet doesn't change disability status. Previously, courts found that people with conditions like epilepsy, mental illness or diabetes weren't disabled because they treated or controlled their conditions. ADAAA supports claims that despite mitigating measures, people are viewed and treated as disabled. Beneficial measures don't include ordinary glasses or contact lenses

If an employee or job applicant claims discrimination because he was "regarded as" disabled, he only needs to show that he wasn't hired or was terminated due to an impairment. The ADA used to require a showing that an employer perceived someone as substantially limited in a major life activity, which was a much harder standard to meet.

Title II of the ADA Covers Access to State and Local Government

Under Title II of the ADA, state and local governments must provide services equally, including to disabled persons. The ADA requires access by disabled individuals to public buildings and participation in public programs. ADA compliance can mean modification of services or redesign of buildings to meet the needs of the disabled.

Title III of the ADA Covers Public Accommodations

A public accommodation is private property that's open to the public. A restaurant may be privately owned, but the public is invited, the health code applies and commercial transactions are made there. It's a public accommodation. Note that parks, train platforms, bus kiosks, schools and librairies are public accommodations, but public access by disabled individuals may also fall under Title II ADA enforcement.

Enforcement of the ADA

A claim under the ADA begins with an action filed with the Equal Employment Opportunity Commission (EEOC). The action must be filed with the EEOC within 180 days of the date the discriminatory act occurred. The most likely outcome of an EEOC action is that they will ultimately issue a right to sue letter.This letter is a requirement for filing a federal court action. However, the time limit for filing the court action is 90 days. These time limits are strict and compliance is crucial to enforcing your rights. In some cases the EEOC will file its own suit if it finds reasonable cause.

If a disabled individual is impaired in an employment-related major life activity, the employer is required to provide a reasonable accommodation. Reasonable accommodations include changing the job description, work station, work schedule, improving workplace or providing other special assistance.

If you've been discriminated against in employment, you may be able to recover back pay, reinstatement, future pay or future pay changes, a reasonable accommodation or other relief. In addition, if you were applying for a job and were not hired, the employer may be required to hire you.

If you've been discriminated against in access to government programs or public accommodations, you may be able to have access to a building altered or access to participation in a government program changed to allow your participation.

What You Need to Do

You must first exhaust other possibilities for relief before filing a federal lawsuit for disability discrimination. The EEOC handles discrimination complaints and enforces the ADA. They will investigate the complaint and determine if there's enough information for them to take additional action. Often, due to their volume of cases, they cannot adequately investigate every case, and they will issue a "right to sue letter," mentioned above. Abide by the strict time limits and protect your right to sue.

Profiling a Legal Case

If you think that you've been discriminated against, you've received a right-to-sue letter and you file a lawsuit in federalcourt, you have the burden of proving that you were discriminated against due to your disability. You'll also have to show that your employer didn't provide a reasonable accommodation. Your employer will attempt to defeat your claim and show that you weren't discriminated against and reasonable accommodation efforts were made.

Dealing with disability discrimination can be frustrating. Employment law is complicated. Labor and employment lawyers have specialized knowledge and answers that may helpyou. You may have questions on whether you job situation or employer is covered by the ADA.

Questions for Your Attorney

  • Am I a disabled person as described by the ADA?
  • Does the ADA cover my employer and job?
  • What is a reasonable accommodation?
  • How can I proceed against my employer?
  • Will I lose my job?
  • What remedies may I have?
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