Disability Employment Rights and Enforcement

INTRODUCTION

The Adults with Disabilities Act (ADA) requires employers with more than 15 employees to provide equal opportunities for employment of people with disabilities.  Title I of ADA prohibits discrimination in recruitment, hiring, promotions, leave (such as FMLA), training, pay, social activities and any other employment activities or opportunities.  It should be noted that Title I of ADA is administered by the US Equal Employment Opportunity Commission (EEOC).

EMPLOYERS THAT MUST COMPLY WITH TITLE I OF ADA

Which employers must comply with ADA Title I?

• All employers both private and state and local government employers with greater than 15 employees.
• Private employers
• Employment Agencies
• Labor Organizations
• Labor Management Committees

EMPLOYEES COVERED BY ADA TITLE I

Employees who have a disability and are qualified to perform the duties of a job even with reasonable accommodations are protected by Title I of ADA.  The employee must meet the employer's requirements for education, employment experience, or specific skills or licenses.  AN EMPLOYER MAY NOT REFUSE TO HIRE AN EMPLOYEE DUE TO INABILITY TO CARRY OUT NON-ESSENTIAL DUTIES.   It is also illegal for an employer to retaliate against and employee for asserting his/her disability rights.  Non-disabled employees are also protected from discrimination as a result of family, business or other association with a person with a disability.

SPECIFIC EXAMPLES OF EMPLOYMENT DISCRIMINATION

• Requiring the disabled employee to perform duties not essential to the job or that can be reassigned within reason.  For example, if the job requirement to lift 25 pounds can be accommodated to another employee without being an unreasonable hardship to the employer, the employer is responsible for modifying the task.
• Requiring a disabled employee to take a pre-employment physical examination, medical tests or inquires.  Only medical tests or inquiries post-employment are allowed.
• An employer cannot refrain from hiring a person with disabilities merely because of the disability.  The Disability Compendium Organization estimates the average unemployment for all people with disabilities is over 65% and over 76% for those with physical and intellectual disabilities.  I seriously doubt employers are not in fact, discriminating against the disabled in hiring.
• An employer cannot refuse medical insurance to a disabled employee if it is offered to other employees. 
• An employer cannot discriminate against any employee (even non-disabled) because of a family member who has disabilities that may increase the cost of insurance.
• Employers are not allowed to segregate disable employees for any reason.
• Employers may not terminate an employee for using the Family Medical Leave Act or other leave benefits. Recently EEOC has issued a report of concern about this practice.  Increasing numbers of complaints are being made because employers are allegedly terminating employees when they apply for leave.
• An employer cannot discriminate against a disabled employee by paying them less than others doing the same job.  It is interesting that the Disability Compendium Organization calculated that employees with disabilities earn an average of 32.2% less than non-disabled employees.
• An employer may not discriminate by promoting a non-disabled person with lesser qualifications than a disabled person. 
• An employer may not discriminate against disabled employees by denying job training which is available to non-disabled employees.
• An employer may not deny a person with disabilities employment due to architectural barriers that may be removed, making the structure accessible to the disabled employee.
• An employer may not make the disabled employee pay for the 'reasonable accommodation.'  Please note that a applicant should inform a potential employer of the need for special accommodations.
• Employers may NOT refuse to hire employees simply because of a diagnosis of HIV or AIDS.
• There are many other examples of discriminatory practices, but the ones described here are the most common.

DISCRIMINATION RECOURCE

1.  Litigation:  An employee may file a lawsuit against a business or local or state government entity regarding disability discrimination.  An employee who believes he/she has been discriminated against is NOT required to file a complaint with EEOC first.
2. Filing a Complaint:  Since EEOC enforces ADA title I employment rights, the complaint must be made via EEOC.  The complaint has to be made through one of the 53 regional centers.  To find your regional center go to EEOC Regional Centers

EXAMPLES OF REASONABLE ACCOMMODATIONS

• Modifying facilities so they are accessible to the disabled
• Job restructuring 
• Modified work schedules including including part-time work
• Reassignments to a vacant job
• Obtaining or modifying equipment needed for the employee to complete the job duties
• Providing readers and interpreters

DATA REGARDING THE ACTUAL COSTS OF MOST REASONABLE ACCOMMODATIONS

This information was provided by ADA.gov.  

• 31% of all 'reasonable accommodations' cost NOTHING.
• 50% of all 'reasonable accommodations' cost less than $50
• 69% of all 'reasonable accommodations' cost less than $500
• 88% of all 'reasonable accommodations' cost less than $1,000

EXAMPLES OF SIMPLE REASONABLE ACCOMMODATIONS:

1. A person has an eye disorder due to glare on the computer screen.  Solution - Anti-glare screen (estimated cost $39).
2. An employee with only one hand can no longer use a camera even with a tripod.  Solution - A waist pod (estimated cost $50)
3. A seamstress could no longer use scissors because of wrist pain.  Solution - ergonomically correct spring loaded scissors (estimated cost $18)
4. A Medical Technologist who was deaf could not hear the buzz of a timer which was necessary for certains tests.  Solution - An indicator light installed (estimated cost $26.95)
5. An employee who uses a wheelchair could not use a desk because the desk was too low for him to fit under.  Solution - The desk was raised with wooden blocks (cost - NOTHING).

Really, it is often just not that difficult. 

PROGRAMS TO DEFRAY COSTS FOR REASONABLE ACCOMMODATIONS

1. Barrier Removal Tax Deduction:  Businesses may claim up to $15,000 in deductions for barrier removal for qualified expenses.  Businesses obtain the deductions by listing the cost as a separate expense on their IRS tax return.
2. Disabled Access Credit:  A credit for small businesses earning less than $1 million or has fewer than 30 employees. The employer may take the credit each year they access the expenditures.  Qualified expenses include:  removal of barriers, providing qualified interpreters or making audio equipment available, providing readers and other equipment to aid persons with visual difficulties, and modifications of equipment made to accommodate disabled employees.  Note:  to calculate the credit see IRS form 8826.

EMPLOYERS - WHY HIRE EMPLOYEES WITH DISABILITIES?  

Here are several reason to hire the disabled.

1. Disabled workers have greater punctuality and attendance. (2000 & 2002 survey of HR Managers -Cornell University School of Industrial and Labor Relations)
2. Disabled workers tend to have greater work quality and consistency. (2000 & 2002 survey of HR Managers -Cornell University School of Industrial and Labor Relations)
3. Disabled workers tend to have overall greater proficiency. (2000 & 2002 survey of HR Managers -Cornell University School of Industrial and Labor Relations)
4. Disabled workers tend to remain longer with a specific employer. (Kessler Foundation, National Organization on Disability)
5. Disabled workers tend to be more loyal to their employer. (Kessler Foundation, National Organization on Disability)
6. Hiring the disabled reduces new hire costs. (Kessler Foundation, National Organization on Disability)

Other facts:

1. People with disabilities have a collective $269 Billion to spend. (US Census Bureau American Community Survey)
2. 87% of consumers prefer to do business with companies who hire the disabled. (US Census Bureau American Community Survey)

QUESTIONS?

Feel free to ask questions about your rights or benefits of hiring the disabled by commenting or contacting me at admin@elkhartadvocacyforthedisabled.com.

Also please read the blog posts on Suicide and Suicide Prevention in the series entitled All about Depression.

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