REPOST ARTICLE SOURCE: http://www.job-discrimination.com/lawyer-attorney-2130162.html
The ADA makes it unlawful for an employer to discriminate against a qualified employee on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. ADA claims may be complex, involve a number of theories and require detailed legal analysis.
ADA- DISABILITY DEFINED
The first question is whether the employee has a disability as the term is defined under the law. An employee qualifies as disabled under the ADA if the employee (1) has a physical or mental impairment that substantially limits one or more of his major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment. Major life activities may include things like walking, seeing, or breathing. Whether an employee is substantially limited as to a major life activity is a question of fact. On January 1, 2009, the Americans with Disabilities Act Amendments Act (ADAAA) became effective. The ADAAA overturned a series of Supreme Court decisions that interpreted the ADA in a way that made it difficult for employees to prove that a physical or mental impairment meets the legal definition of disability. The ADAAA makes significant changes to the ADA’s definition of disability to make ADA claims easier including:
- A broader definition of disability expanding the definition of major life activities; redefining who is “regarded as” having a disability; modifying the definition of ‘substantially limits; specifying that disability includes any impairment that is episodic or in remission if it would substantially limit a major life activity when active; and prohibiting consideration of the ameliorative effects of “mitigating measures” when assessing whether an impairment substantially limits a person’s major life activities.
- Adding a new provision restricting employers’ use of qualification standards, tests, or other selection criteria that are based on uncorrected vision standards.
- Clarifying that an employee who satisfies only the “regarded as” prong of the definition of disability is not entitled to reasonable accommodation; and
- Modifying the language of the ADA’s “General Rule” that prohibited discrimination against a qualified employee with a disability because of the disability of such employee to say that discrimination is prohibited against a qualified employee on the basis of disability.
ADA – BEING PERCEIVED AS DISABLED
An exception to the requirement that an employee actually be disabled under the ADA is when the employer acts with the belief or perception that the employee is disabled. This does not mean that simply calling an employee disabled suffices. The employer must actually perceive that the employee has a condition, which substantially impairs a major life activity.
ADA AND REQUEST FOR REASONABLE ACCOMMODATION OF A DISABILITY
To make out a prima facie case of discrimination under the ADA, an employee plaintiff must show (1) the employee is a disabled person within the meaning of the ADA; (2) the employee is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) the employee has suffered an otherwise adverse employment decision as a result of discrimination. An employer who does not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability discriminates on the basis of disability. Failure to accommodate includes both refusing to provide an employee with a proposed reasonable accommodation and failing to engage in an interactive process after the employee requests an accommodation.
Both the employer and the employee have a duty to act in good faith once the interactive process begins. An employer that obstructs or delays the interactive process is not acting in good faith. An employer that fails to communicate, by way of initiation or response, may also be acting in bad faith. In order to claim the protections of the ADA, an employee must first approach the employer and explain how the disability impairs the employee’s work and engage in an interactive process to obtain an accommodation. If an Employee needs an accommodation based upon a disability, the employee should explain the situation to the employer and document that explanation. Once the employee provides this notification the employer must engage in a good faith interactive process to attempt to reasonably accommodate a disability.
ADA AND RETALIATION
To state a prima facie case of retaliation under the ADA, an employee plaintiff must show: (1) the employee engaged in protected employee activity (i.e. requesting a reasonable accommodation for a disability or filing a claim of disability discrimination); (2) an adverse action by the employer either after or contemporaneous with the employee’s protected activity under the ADA; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. Once the employee plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action (a reason for the action which has nothing to do with the ADA protected activity). When the employer meets this burden, the employee must then prove by a preponderance of the evidence that the employer’s proffered reason was a pretext (i.e. a cover up) and not the true reason. To show pretext, the employee must present some evidence which could allow a judge or jury to disbelieve the employer’s reason or believe that retaliation for exercising the employee’s ADA rights was more likely than not a motivating or determinative cause of the employer’s action. An employee Plaintiff may establish causation by pointing to unusually suggestive timing or evidence of ongoing antagonism.
THE REHABILITATION ACT
The Rehabilitation Act (“Rehab Act”) is a federal law which prohibits recipients of federal funds from discriminating on the basis of disability. The Rehab Act provides that no qualified individual with a disability in the United States shall, solely by reason of the disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. The Rehab Act forbids discrimination against a qualified employee with a disability in matters of hiring, placement, or advancement. The Rehab Act is interpreted in conjunction with the Americans with Disabilities Act.