Disability Discrimination
Extending employment opportunities
Until relatively recently, disabled people were routinely—and legally—subjected to discrimination in the workplace. Discrimination based on disability was legal and disabled workers or would-be workers had no recourse under the law. That was the situation until the U.S. Congress passed two landmark acts—the Americans with Disabilities Act and the Americans with Disability Act Ammendments Act—to extend the protections of anti-discrimination law to people with disabilities. Read about how employment law has changed and employment opportunity has been extended:
- When discrimination was legal
- Opening the door to equal employment opportunity—the Americans with Disabilities Act (ADA)
- Making it easier to enforce your rights—the Americans with Disabilities Act Amendments Act (ADAAA)
- Eliminating the mitigating measures defense
- Protections the anti-discrimination laws provide for disabled people
- Reasonable accommodation
- Remedies available to victims of discrimination
Employers still try to circumvent these laws to limit the opportunities for disabled people to be included in the world of work and rewarded for their labors. That is why you need an experienced law firm on your side.
Dedicated to defending Florida workers' rights
The laws prohibiting disability discrimination are complex and constantly changing. If you believe you have been damaged by disability discrimination, contact the experienced and sympathetic Florida employment lawyers at Louis P. Pfeffer, P.A. as soon as possible.
When discrimination was legal
Before 1990, an employer in Florida could legally fire, demote, harass, or refuse to hire an individual with a disability. Rather than focus on a disabled individual's abilities, many employers concentrated on a disabled person's limitations or restrictions, based on stereotypes of what a disabled or handicapped person could or could not do. Many disabled individuals were disparaged as crippled, unproductive, or at risk of hurting themselves or coworkers. Employers' biggest fear was that hiring the disabled would lead to higher employer costs for workers compensation and health insurance.
Though not physically or mentally limited in performing work tasks, some—including individuals with HIV or a history of involuntary hospitalization for mental illness—were discriminated against and denied employment because employers viewed them as dangerous and a threat to be around. Others were pitied by employers who misguidedly sought to protect them by limiting the jobs they would allow them to perform.
Almost all the disabled had one experience in common: they were routinely denied the opportunity to work, earn a living, pay taxes and raise and support a family.
The Americans with Disabilities Act (ADA)
In 1990, Congress passed the Americans with Disabilities Act (ADA) mandating the end of the historical discrimination disabled citizens had endured in obtaining and keeping jobs.
Unfortunately, many employees who subsequently sued their employers alleging disability discrimination never got their days in court, especially on the federal level. Their lawsuits were routinely thrown out of court in a proceeding known as summary judgment. ADA cases were dismissed when employers argued either that the worker did not have a disability because his or her physical or mental problems were not severe enough, or that the condition was mitigated by treatment or an assistive device.
Disabled employees were in an untenable situation. They had to prove that their physical or mental impairment was severe enough to limit them, but not so severe that they were unable to perform the job in question.
Making it easier to enforce the rights of the disabled
Because the courts had narrowly interpreted the ADA, it was difficult for disabled individuals to prevail and enforce their rights to equal employment opportunity. The passage of the Americans with Disabilities Act Amendments Act (ADAAA) in 2008 makes it easier for them to do so now.
The new ADAAA broadly defines qualifying major life activities to include—
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In defining disability, the new ADAAA also includes major bodily functions:
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Individual who have impairments in the operation of at least one major bodily function no longer need to show that their disabilities limit them in specific activities. Substantial limitation of major bodily function is enough to qualify them for protection under the ADAAA.
Eliminating the mitigating measures defense
Further, the ADAAA eliminates the mitigating measures defense that employers commonly used under the ADA to throw out disability discrimination cases. For example, under the ADA an employer would argue that an individual missing a leg, but who had a leg prosthesis and was able to walk or run without any problem, was not substantially limited in walking and therefore was not disabled. The more successful people were at coping with their disabilities, the more likely it was that the court would find that they were no longer disabled and therefore, no longer protected by the ADA. The new ADAA does away with this defense.
Protections the anti-discrimination laws provide
The ADAAA prohibits certain employer actions and requires others. First, employers are prohibited from firing, demoting, harassing, or refusing to hire an individual with a known disability, or denying an employee with a known disability any term, condition, or privilege of employment. Second, employers are required to affirmatively "reasonably accommodate" an employee with a known disability.
Reasonable accommodations
The employer and the employee are required to meet to prepare the specific accommodation that will allow the employee to perform the essential functions of the job. The employer does not have to change the essential functions of the job or provide the exact change the employee wants. A few examples of reasonable accommodations include—
- Changing the physical structure and layout of the work area
- Changing how the work is performed
- Altering an employee's work schedule
- Providing a short leave of absence
- Transferring the employee to a currently vacant position
The overall impact of the laws is that employers must change work areas, policies, procedures, and other conditions to allow disabled employees to keep their jobs and compete with the non-disabled.
Under the new laws, the primary focus in a disability discrimination case is not on the disability, but rather on whether discrimination has occurred and whether the employer has properly accommodated a worker with a known disability.
Remedies for unlawful discrimination
When an employer unlawfully discriminates or retaliates against a person with a disability, the aggrieved person may be eligible for an award of damages including—
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The aggrieved employee may also be able to secure an order reinstating employment or requiring the employer to provide a reasonable accommodation. But first, the aggrieved employee in Florida must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and/or the Florida Commission on Human Relations (FCHR). This charge of discrimination must be filed within a year after the termination, demotion, or failure to make a reasonable accommodation.
