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Can I sue for disability discrimination?

Oak Creek, WI |

I have a disability that requires me to have special work assignments. I have papers from my dr saying it is a lifelong condition. My employer has jobs I could do but they made me take time off work which has caused me to get behind on bills and other things and caused me to lose sleep and become sick trying to figure out how to survive until they allow me to work again. do I have a disability discrimination lawsuit? (current employer is Wal-Mart if that matters)

Attorney Answers 3


Disability discrimination claims are quite complex and depend on a number of factors, first and foremost including whether you have a qualifying disability under state and/or federal law. Even though your doctor may have an opinion doesn't mean the law holds you as "disabled." It's best to consult with an employment attorney or firm, like mine, that handles these matters routinely.

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I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

An employee or job applicant may have rights under the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA). This law applies to employers with at least 15 employees. To be eligible for the protection of the ADA, the employee or applicant must have a disability as defined by the ADA. This definition is “a physical or mental impairment that substantially limits one or more major life activities.” The impairment must be permanent or of long duration, such as one year.

If these requirements are met, the employer may be required to provide reasonable accommodation. Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable the employee to do the main functions of the job, allowing extra time off work for things related to the disability, and more. For applicants, the employer may need to provide reasonable accommodation in the form of extra time for qualification tests, better lighting, or any other modification that enables the applicant to apply.

Also, the employer may not treat an employee or applicant differently from other employees because of disability. For example, the employer may not refuse to hire or promote an individual, deny training or otherwise limit job opportunities, and the employer may not fire a person because of disability.

Please look at my Avvo guide on the ADA:

If you think your disability meets the definition under the ADA, please contact one or more experienced plaintiffs employment attorneys for a consultation. You can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.

I hope you can resolve your situation and wish you the best.

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Disability discrimination is covered on the federal level by the Americans with Disabilities Act and on the state level by the Wisconsin Fair Employment Act. Both are similar in structure, but the Wisconsin Fair Employment Act is a bit more broad and instructs an employer to provide a more wide array of accommodations to its employees than are called for or allowable under the Americans with Disabilities Act.

Like Randy said, disability claims can be fairly complex, so it would be best to sit down with an employment law attorney to discuss your situation in more detail and find out whether you do actually have a claim.

Whether you decide to meet with our firm or anyone else, we wish you the best of luck.

Hope that helped.

James A. Walcheske
Walcheske & Luzi, LLC

This answer was provided for general informational purposes only, and should not be construed or interpreted as providing legal advice or as creating an attorney-client relationship.

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