This year marks the 20th anniversary of the signing of the Americans with Disabilities Act (ADA) by President George H.W. Bush. The ADA prohibits, among other things, discrimination in employment by private companies and state and local governments based on an individual’s disability. Under the ADA, employers are required to find ways to accommodate a qualified employee’s mental or physical disability to allow them to successfully perform their job.
However, 20 years after the landmark legislation went into effect, those with disabilities are still fighting against discrimination in the workplace.
According to Tully Rinckey Attorney Matthew Estes, employers are still discriminating against employees on the basis of their disability and often times it may just be ignorance of all of the law’s requirements.
“Employers often ignore disabled employee’s requests for reasonable accommodation afforded under the law” he said. “The employer will discriminate against a disabled employee and even fire them for lapse in performance or some other issue related to their disability without having worked with them to find a way to accommodate the disability.”
There are limits though on how far an employer must go to accommodate an employee’s disability. Mr. Estes says that the employer is not required to provide an accommodation which would cause an “undue hardship” for the employer’s business, which is determined on a case by case basis but usually depends on the costs associated with the particular accommodation.
For individuals with a disability who are denied initial employment, discrimination is often harder to prove. The ADA prohibits employers from asking applicants about potential disabilities prior to a job offer, which protects individuals with unnoticeable disabilities, however; certain disabilities are evident. “Unless an applicant voluntarily discloses a non-obvious disability the employer should have no way of knowing.” says Mr. Estes. “If someone comes in for a job interview and they are visibly disabled, that might be an easier case but because the hiring process is so subjective it is often difficult to prove discriminatory intent.”
Mr. Estes says that overall, the law has been very beneficial for people already on the job, but has not been as helpful for those seeking employment where it is often more difficult to prove that a hiring decision has been made on the basis of the applicant’s disability. This is seen in the disparate number of disabled individuals who are unemployed despite their ability to work. President Obama’s recent Executive Order calling for the Federal
Government to develop a plan to hire approximately 100,000 disabled individuals over the next 5 years could be step in the right direction.
Mr. Estes says that if you feel that you have been subjected to discrimination due to a disability, or on any basis, the best thing you can do is seek legal counsel immediately to determine your rights and potential remedies.
For more information on Matthew Estes and federal employment law, go to http://www.fedattorney.com/mestes.html