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What to Do if You Experience Disability Discrimination in the Workplace
EDNA Team • Aug 18, 2021
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What to Do if You Experience Disability Discrimination in the Workplace
Disabilities are a part of life that many families cope with, with one in four adults in the United States lives with a disability, totaling 61 million individuals. Homes, schedules, businesses, schools can all be adapted to make living with a disability almost seamless. But sometimes, the workplace is where problems are the hardest to solve .
California workers with disabilities in are protected against on-the-job discrimination under the federal Americans with Disabilities Act (ADA) and the state Fair Employment and Housing Act (FEHA).
Workplace discrimination is upsetting and challenging. But equipped with the facts and with an experienced and dedicated lawyer by your side, you can fight against unfair, unethical, and unlawful behaviors.
Laws that protect you against discrimination
The Americans with Disabilities Act of 1990
The ADA
is a federal law that gives clear and enforceable standards to address disability discrimination in the workplace. The legislation states that employers with 15 or more employees cannot discriminate against individuals with disabilities who can accomplish core functions of a job with or without aid.
The Fair Employment and Housing Act of 1959
Put simply, FEHA
is California’s ADA, but with a little more protection for the worker. It aims to give employees actionable solutions while preventing discrimination. Under the FEHA, it is illegal for employers with five or more employees to discriminate against workers because of physical and mental disabilities, genetic information, or medical conditions.
Who is protected under the ADA and FEHA?
Employees and job applicants are protected against workplace discrimination. Independent contractors also have rights against disability-related harassment.
Employee protection
You are an employee if you work under the direction of an employer as a core part of their business. You must have a paid employment agreement, which can be written or implied. Volunteers are not protected against discrimination. You must also be able to perform the job's essential duties, either with or without reasonable accommodations.
Anti-discrimination laws protect job applicants, too. If an employer refuses to hire you or treats you differently from similarly qualified applicants because you live with a disability, they are acting unlawfully.
Independent contractor protection
If you are an independent contractor, you are not considered an employee. However, that doesn’t mean you don’t have rights – interactions between yourself, your employer, and any colleagues or employees must be free from harassment or mistreatment based on your disability.
What does disability discrimination look like?
As an employee in California, you are protected against several types of discrimination. These include:
- Not being hired because of your disability
- Not being able to participate in training programs because of your disability
- Not having access to privileges or benefits offered by your employer because of your disability
- Being paid less based on your disability and no other factors
- Being denied promotion because of your disability
- Being fired based on your disability
If you require adjustments in how you do your job or the space you do it to perform essential tasks, your employer must make those adjustments unless doing so would cause them significant hardship. This is called the duty to accommodate, and it comes into play from the moment your employer learns about your disability.
Depending on your disability, role, and workplace, the reasonable accommodations you require to perform essential tasks will be unique to you. However, keep the following factors in mind:
- Your accommodations must be ‘reasonable.’ What is reasonable is often a point of friction between an employer and employee. Allowing you to sit in a chair when your job doesn’t require you to stand would generally be reasonable, or instance. Redesigning your workplace with a new desk, customized ergonomic chair, and new lighting might be, or it might not be, depending on many factors, including your job duties and your employer’s business costs.
- If you need accommodations, your employer must ask you what, specifically, you require and to negotiate in good faith toward a resolution. They aren’t, however, obligated to choose the accommodations you prefer.
The above is just the tip of the iceberg. Disability discrimination is extremely personalized and differs from case to case. If you would like to chat about your experience, please don’t hesitate to reach out to me.
How should you respond to workplace disability discrimination?
- Disability discrimination can be hurtful. Here are several steps you can take to remedy the situation:
- Notify your employer or the HR department of your experience with discrimination. This is an important step, as your workplace may not be aware of your disability, your needs, or their legal responsibilities. In this case, they could be willing to resolve the problem without any additional troubles.
- If your employer is unwilling to work with you toward a resolution, you can file a formal complaint with a government agency. You must do this before taking legal action.
- File a disability discrimination claim within 300 days of the offending event with the Equal Employment Opportunity Commission (EEOC), or within one year, generally, if filing with the California Department of Fair Employment and Housing. This step paves the way for a potential lawsuit. At this point, contact a lawyer.
- File a lawsuit. If you decide to sue your employer, work with an attorney with experience in employment law. I can advise you on what actions to take, advocate on your behalf, and provide no-nonsense advice on the winnability of your case.
How to protect yourself
If you have a disability, you can protect yourself against discrimination with the following useful tips:
- Notify your employer of your disability in writing, whether by email, text message, or a physical letter, if you are comfortable doing so. This helps eliminate any confusion or misunderstandings relating to your disability and the potential need for accommodations, and may be the only proof that your employer was aware of your condition.
- Understand your burden of proof. In plain language, the burden of proof is your requirement to show evidence of discrimination. If you don’t have evidence, your likelihood of winning a case against your employer is very slim.
- When contacting your employer, supervisor, Human Resources (HR) department, or fellow employees, ensure your tone remains cordial and professional—imagine every message being read out loud by a judge in open court and use a proper tone.
- If your employer discriminates against you based on your disability, contact a lawyer for advice.
- If you experience discrimination, write down what happened, who was present, where it happened, and what was said or done. Be sure to include the date. Note how it made you feel—embarrassed, ashamed, angry, afraid… be honest, because this may be the only proof that you were caused harm by the discrimination. If you can, talk through your experience with a trusted friend or family member. That way, they may be able to testify on your behalf.
- Keep a record of important discussions. Send a follow-up email that breaks down the key points if you speak over the phone or in person. This “paper trail” shows how you tried to resolve the problem and how your employer responded.
Get a trusted advisor on your side
No one should have to experience discrimination in the workplace. The good news is, you are protected. So, if your employer is mistreating you because of your disability, or if you have been refused a job opportunity based on your disability, contact an employment lawyer today.
With more than 25 years of experience in employment litigation, I have the expertise needed to help you achieve your desired outcome. I’ll stand by your side and advocate on your behalf every step of the way. My goal is to make an unpleasant situation as stress-free as possible, so get in touch and let’s discuss your case
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