Should You File a Claim for Job Disability Discrimination?: The Facts

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With the U. S. job market remaining unrelenting in a still sluggish economy, the filing of discrimination lawsuits against employers has increased by 7.2% from 2009-2010.  The largest increase was from people who said they have been discriminated against due to a disability.  This increase may have something to do with the recent changes in the EEOC act in the leniency of the definition of the term disability under the Obama Administration.


Still, many employment experts say the increase in the discrimination law suits has more to do with the massive and broad lay-offs over the past couple of years.  Workers have found it difficult to find a new job after being laid-off or fired.  And the only recourse at-will workers have to challenge their dismissal from a company is to file a discrimination claim of some sort.


Most of the time, the EEOC finds no reasonable cause for dismissal involving discrimination.  In some cases, people are just so upset that they were terminated, and happen to be in a protected class category, they file a claim. Before you file for a disability discrimination suit against your employer, you need to know what your rights are.  The following are the standards listed by the EEOC as to the definition of discrimination on the job.


The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and other term or condition of employment.  It is illegal to harass an applicant or employee because they have a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if they do not have such an impairment).


Harassment can include, for example, offensive remarks about a person's disability.  Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't serious, harassment is illegal when it is so frequent or severe it creates a hostile or offensive working environment or it results in an adverse employment decision, such as firing or demotion. The harasser can be the victim's supervisor, a  co-worker, or even someone who is not an employee of the employer, such as a client or customer.


The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.  A reasonable accommodation is any changes in the work environment or the way things are usually done, to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.


Yet, an employer does not have to provide an accommodation if doing so would cause undue hardship to the employer.  Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size financial resources and the needs of the business.  The employers still may not refuse to provide an accommodation if it requires some costs; the employer may chose an accommodation that works for everyone.


Not everyone with a medical condition is protected by law.  In order to be protected, a person must be qualified for the job and have a disability as defined by the law.  A person has shoe they have a disability in one of three ways: 1.) A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing or learning). 2.) A Person may be disable if he or she has a history of disability (such as cancer that is in remission) 3.) A person may be disable if he or she is believed to have a physical or mental impairment that is not transitory (lasting more than six months or less) or minor (even if they do not have such an impairment).


Note when interviewing for a job that the law places strict restrictions on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.  For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending an offer.


But, after a job is offered to a job applicant, the law allow the employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the medical exam. 


Once a person is hired for a job and has started work, the employer generally can ask medical questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation or if the employer believes that an employee is not able to perform their job successfully or safely, due to a medical condition.


In addition to a variety of formal guideline documents, the EEOC,, has a wide range of fact sheets, questions & answer documents, and other publications to help both the employers and the employees to better understand the complex issues surrounding disability discrimination.



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