Written by attorney Alexander O Bentsen

What You Should Know About Disability Discrimination Before You Seek Accommodation

Please read through this Legal Guide if you have a medical impairment or disability for which you intend to seek workplace accommodation. This is not an all-inclusive guide and is not intended to serve as legal advice. For actual legal advice, you should speak to an attorney directly.

Additional resources provided by the author

As an attorney that practices in the areas of both Employment Litigation and Social Security Disability, I regularly see that one of the most commonly misunderstood overlapping areas of employment and disability law is “Disability Discrimination.” This is a widely misunderstood area of law. There are a number of reasons for this. I decided to put this guide together because I often see workers wind up worse off after asserting Disability Discrimination or the need for accommodation in the workplace. There are specific reasons why claiming a right to accommodation or asserting that you have been discriminated against because of a disability often backfires and leads to the worker being terminated. After being terminated, unlike other forms of discrimination, the worker is not necessarily going to win a discrimination claim on the basis of Disability Discrimination. A basic understanding of discrimination in the workplace is required before getting into the specifics of Disability Discrimination. Originally, employers were free to discriminate in the workplace. There was nothing wrong with a boss or supervisor telling an employee “I’m sorry, we could not promote you because you are a woman. We didn’t think these guys would want to work with a woman as their supervisor. I, personally, thought you were best for the job, but we all agreed that the next supervisor should be a man.” This was not illegal and employees did not sue for it. You can change this scenario to anything. The promotion was denied because a qualified male employee was not married. The promotion was denied because of race. The promotion was denied because of sexual orientation. The promotion was denied because of the country an employee was born or an accent they had. The promotion was denied because of the employee’s religion. All of this was basically legal. For obvious reasons, once discrimination laws were enacted, this type of discrimination created clear cut causes of action. However, the Civil Rights Act was not enacted until 1964 and most additional protection from discrimination was not enacted until approximately a decade later. In the beginning, these laws only protected these most clear cut cases of workplace discrimination contained in the previous examples. Protection for disabled individuals in the workplace is still a new form of protection. When it comes to disabilities, the Americans with Disabilities Act (“ADA”), was not passed until 1990. In New Jersey, for example, protection for the handicapped was not added to the Law Against Discrimination (“LAD”) until 1972. And it is, contrary to popular belief, not a very strong protection. When first added to the LAD, it specifically excluded from protection situations where a handicap reasonably precluded performing a particular form of employment. This exception continues today. This sets Disability Discrimination apart from any other form of discrimination, because in today’s world it is not at all rational to say that a person would be precluded from performing a particular job because of their race, sex, religion or national origin. A recent example that causes many to be misled about Disability Discrimination that comes to mind, is the United States Supreme Court decision involving the EEOC and Abercrombie and Fitch. In that case, the Supreme Court ruled that, even though Abercrombie has a policy regarding the “look” of the store employees, because it is a fashion company and has a right to create a brand image that includes its “look,” a Muslim woman could not be denied employment because she wore a Hijab, head scarf. Abercrombie might not want employees wearing these scarves because they do not sell these items and, therefore, could claim that is why they do not want employees wearing them in their stores. That would not be directly related to the woman’s religion. It would just be directed towards how the brand “look” influences the dress code. However, the Supreme Court nevertheless ruled in the woman’s favor. The Supreme Court even ruled that under this set of circumstances, the woman was entitled to “accommodation” for the requirements of her religion and that she should have been permitted to wear her scarf. The “accommodation” factor is usually the biggest area of dispute in Disability Discrimination cases. However, there is a marked difference between what an “accommodation” would be in a religious discrimination case, like the Abercrombie case, and what an “accommodation” would be in a Disability Discrimination case. In the most realistic, real world terms, the religious discrimination laws require the “accommodation” and there is little to no exception to the legally required "accommodation." However, in cases where a disability is involved, the “accommodation” is not required—even though people commonly say an accommodation is required for the disabled. Going back to the original Law Against Discrimination in New Jersey, the exception related to being able to do a particular job still applies today. Whereas, in a case like Abercrombie, it would not at all make sense to say that a woman would not be able to perform the job she sought simply because she was Muslim or wore a headscarf. However, if she had attempted to be hired in a factory that only produces pork products and she could not work with pork products, she could be denied employment because the job would not be possible without working with pork products. Though, in real life, such a situation would not likely arise, since an individual who is prohibited from contact with pork would not likely be seeking employment in a factory that produces pork products only. When it comes to Disability Discrimination, as opposed to other forms of discrimination, there is far more room for an employer to look to the exception to the rule and claim that an accommodation is not “reasonable.” This dates back to the original specific exception to disability protection that says employment can be denied or terminated if the person cannot do the particular job as a result of their disability. Because of this exception to the Disability Discrimination laws, if we look at these laws in the most realistic terms, these laws create a very limited and specific impact on the workplace. That impact is that employers are encouraged to offer accommodation to employees that have disabilities and impairments. The real world effect of this protection is to open a dialogue between the employer and employee; and to require the employer to consider accommodation; and to consider hiring people that may require accommodation. However, unfortunately, these laws do not require that people with disabilities be hired nor do these laws require employers to make accommodations. In order to make a claim for Disability Discrimination under the ADA, an individual must show: 1) That he or she has a disablity; and 2) That he or she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) That the employer took an adverse action against him or her because of a disability OR failed to make a reasonable accommodation. I see the area of “reasonable accommodation” as the number one issue people with disabilities (or medical conditions) that affect their ability to work are likely to raise. Obviously, this is because we hear about disabilities and accommodations all the time. And also because the laws that protect employees from Disability Discrimination require the employee to request an accommodation before they can claim being discriminated against. So, in practice, the employee starts at “Step 3,” in the three step analysis above. The employee requests the accommodation. However, in order to be entitled to the accommodation, the employee must have a "disability" ("Step 1"). This has been held to mean that a medical doctor must have given an opinion that the individual has a disability. This does not mean that the individual has a medical condition or is under a doctor’s care—this must be an opinion that the individual has a condition that is a disability and it limits their ability to perform some or all of the job. Generally, to be a "disability" a doctor must indicate that it "seriously limits" an aspect or aspects of a person's life. If the individual states he or she has a disability, that would not be enough to satisfy "Step 1." Many workers cause themselves extreme and unnecessary harm by claiming they have a “disability” when the condition they complain of is not serious enough to be considered a disability. If the condition is not severe enough to be considered a disability by a doctor—raising it with the employer as an issue that requires the employer to grant an accommodation that the employee wants, is not necessarily a good idea. This can create a situation where the employee believes he or she is entitled to an accommodation for a “disability” where no “disability” exists. Employees are not free to designate a medical condition a “disability” by themselves. However, when an employee has a medical issue that is not a “disability” an employer may nevertheless provide an accommodation. This could be a more comfortable keyboard for a hand or wrist injury. Or permitting an employee time off or time away from the workplace for something like cancer treatments. However, these accommodations are not automatically, as a matter of law, deemed to be accommodation for a “disability.” These are often just normal exceptions employers make for employees. A “disability” is generally more severe than these types of medical issues. Because, for example, a hand or wrist injury that can be accommodated with a slightly different keyboard would not "seriously limit" any aspect of a person's life. When it comes to the second part of the analysis "Step 2," whether or not the employee is qualified to perform the functions of the job—many, many claims fail in court. That is because courts regularly rule that if the employee cannot perform the job—the employee is not entitled to any protection. Such issues that cause claims to fail can be an employee demanding part time work, where the position was full time; an employee’s demand to eliminate one job task; an employee’s demand to work “light-duty” or an employee’s demand to work from home. This means that employers have great discretion in deciding what constitutes the ability to perform the functions of the job. Where an employer can argue that the requested accommodation essentially creates a new position, the employee’s claim will generally fail. That means that the employee must still be able to meet all of the main functions of the job, but with some sort of accommodation. If the job is full time or involves heavy activity, changing it to part time or light activity has been held by courts to constitute creating a “new position.” The law does not require an employer to create a new position or new job for an individual with a disability. However, an employer may if the employer wishes to. The last step of the analysis "Step 3" above—whether a negative action was taken against the employee or whether a “reasonable accommodation” was denied—is one of the most heavily litigated areas of Disability Discrimination. However, the court rulings generally favor the employer. This means that the original exception to Disability Discrimination laws, related to whether the employee is able to perform essential job functions, still governs today. A negative action because of a disability is usually a termination, demotion or reduction in pay or hours. If the employer can demonstrate that the employee could not perform all of the essential functions of the job, the employer may take negative action against the employee because of their disability and not be found to have discriminated against the employee. In the most practical terms—this means an employee CAN BE FIRED FOR THEIR DISABILITY. When it comes to the “reasonable accommodation” part of the analysis, courts have greatly empowered employers to make their own determinations about what is “reasonable.” The employee does not get to determine what a reasonable accommodation might be. Employers start their inquiry with "Step 1" whether the employee has a "disability" and then "Step 2" whether or not the employee can perform all functions of the job, then, after that, look at "Step 3" accommodation. So in realistic terms, the employee starts at "Step 3" (requesting accommodation) and the employer makes its determination about whether it is "reasonable" based upon "Step 1" (is there a disability?) and "Step 2" (can the employee or potential employee do the job?). When courts rule, regardless of the wording of the decisions, the result is usually that the employer has the ultimate discretion to choose between accommodations or to even grant them at all. The employee may request or suggest these, but the employer is the party that gets to decide whether or not the requested accommodation is “reasonable.” Employers are free to choose a less expensive accommodation or an accommodation that is easier for it to provide. There is no law that requires any employer to make any particular concession to an employee demand for a particular accommodation. Nor is there any legal requirement that would permit an employee to choose the accommodation that they prefer. In practice, that means that based upon the changing factors that may arise in a particular position—an accommodation that an employee could have gotten previously may not necessarily be available in all instances that the employee may need the particular accommodation. The employer gets to make the determination as to which accommodation will be provided at a particular point in time, based upon all of the normal factors that affect the job and the workplace. In practice, what the Disability Discrimination law actually requires is that employers engage in a dialogue with employees that are seeking accommodation for their disabilities. This is really all that the Disability Discrimination laws protect and require—dialogue and consideration of the issue. These laws require employers to consider hiring employees with disabilities—but they have never required employers to hire them. These laws require employers to consider providing accommodations for employees that become disabled—but they have never required that employers actually provide specific accommodations. These laws have the effect of encouraging employers to consider employing people with disabilities. But these laws actually only require employers to engage in a dialogue with employees and potential employees regarding disabilities and potential accommodations. These laws have never required employers to make any specific accommodation. The common notion that the Disability Discrimination laws empower employees or prospective employees to require employers to make exceptions for them, is not accurate as a matter of law. The employer still retains the normal discretion in making employment decisions where a disability is involved. Just as the employer would in all other employee related decision making. The employer is required to consider accommodations, not to grant accommodations. The issue is further complicated when the requested accommodation is for a non-physical impairment. Originally, laws that protected the handicapped did not extend to mental impairments. The reason being is that, if you have read through this explanation of the history and current state of the law, it is clear that the employer has always been given wide discretion in determining what is reasonable. This means the employer has great discretion in determining whether an individual can perform a particular job. This has always been within the employer’s discretion. With an issue that is nonphysical in nature, it would be far more difficult to determine what accommodation would be provided. Also, a mental issue can be easily called into question by an employer under all three steps in analyzing a Disability Discrimination case. And any accommodation provided would likely be subject to change at the discretion of the employee. However, the law does not permit such latitude to the employee. The Disability Discrimination law does not in any way require an employer to provide an ever-changing accommodation. This leaves an employer free, in its discretion, to adopt a one size fits all accommodation for a nonphysical impairment. Also, in the most realistic (and harsh sounding) terms, almost any accommodation an employee or potential employee would seek for a nonphysical impairment would immediately call their ability to do the job into question. And would, in most cases, create a new position, a different position or an ever changing position controlled by the employee’s condition. The law does not require employers to do this. Obviously, the current state of Disability Discrimination laws as outlined in this guide, explains why in Disability cases pending before the Social Security Administration, the Judge will not and cannot consider the possibility of accommodation under the ADA or similar legislation in making a determination as to whether an individual is “disabled” under the Social Security Regulations. Because, contrary to what most people believe, these accommodations are not required. All that is really required is that the employer engage in a dialogue and consider permitting an employee or potential employee to have or perform a job with accommodation. I have put together this guide specifically because I have seen many individuals that are not fully aware of what the Disability Discrimination laws actually do in real life cause themselves undo harm. Many individuals believe they can demand accommodation or special treatment and hold the threat of a lawsuit for Disability Discrimination over their employer to extract accommodations and concessions. This is not the case. This has never been the case. The idea that “Disability Discrimination” creates a strong workplace protection for people with disabilities or medical conditions is not an accurate belief. The current push for recognition and understanding of nonphysical conditions like PTSD and other psychologically based medical issues, has not in any way transformed Disability Discrimination laws. Nor has it created more protections for Americans with disabilities. It has, in fact, created situations where individuals are being misinformed about the law and what they are entitled to under the law. I, personally believe, that the government push to create jobs for veterans by attempting to create widespread acceptance of nonphysical psychological issues faced by returning veterans, while noble in intent, has done more harm than good. I say this, because I have seen and regularly see far too many people getting themselves fired from jobs or preventing themselves from getting hired to jobs, because they are under a false impression that if they are denied accommodation for a medical issue, they can immediately sue the employer and extract either money damages or a demanded accommodation. This is not the case. The law empowers the employer to treat an employment decision related to disabilities and medical issues the same as any other employment decision. The law only requires the employer to engage in dialogue about the disability or impairment and consider accommodating it. The law does not require accommodation and it does not create a right to demand it. The law, in actual application, only encourages employers to consider hiring people with disabilities and to consider working around disabilities through accommodation. If you are considering requesting an accommodation for a medical issue or impairment, you should consult with an attorney familiar with these legal issues and how they are treated in your area before doing so. For one, because the law requires a dialogue, an attorney can engage in this dialogue on your behalf. An attorney will also have an understanding of what is “reasonable.” An attorney can protect you from making a demand that cannot be required and then cause an employer to terminate or not hire you. The protection created by these laws is not protection that requires the employer to actively do or provide any preferential treatment to individuals with impairments. It is simply a requirement that employers openly engage the employee or potential employee regarding any accommodation that may be necessary to perform the job—it does not create an affirmative duty in the employer to provide the accommodation. In the most practical and realistic terms, “reasonable accommodation” should be interpreted as “minimal accommodation.” In practice, most cases involving this type of discrimination involve public employees that work in unionized positions. This is because the union and collective bargaining agreement affords these workers greater protection in disputes with their employers. Oftentimes, when a court rules, the fact that a collective bargaining agreement, union process or company policy granted more protection to the employee, in a particular case, than the statutes and case law provide, is left out of the decision. That is because these issues are dealt with in the legal process before it gets to the appeals court and these matters are not necessarily part of the dispute being decided in the appeal. In the context of “at will” employment, as decided by the courts throughout the country, Disability Discrimination protection is, in the most realistic terms, by no means a strong protection. Many Disability Discrimination cases decided by the appeals courts only made it as far as they did because the job at issue was a union position or there were other protections afforded to the employee that brought the lawsuit that were not addressed in the appeal. If you are considering making a demand or request for accommodation pursuant to the Disability Discrimination laws, I strongly recommend that you contact an attorney before doing so. Because a demand that will be viewed as unreasonable by an employer will likely cause adverse employment consequences. The Disability Discrimination laws provide no protection from these consequences if an employer can demonstrate: Step 1: That the condition is not a “disability;” or Step 2: That the impairment prevents the performance of the essential functions of the job; or Step 3: That the requested accommodation is not reasonable. I have prepared this guide to assist individuals with disabilities or impairments make sensible decisions, based upon how these laws work in the real world. This is not an all-inclusive guide. It is an unfortunate statement of what the law actually is and does, as opposed to what most people I encounter, believe the law is and what it does. Because of the complexity of this employer empowering type of legislation, I strongly recommend consulting an attorney in your area to go over these issues and, especially, the factors unique to your case, before making any decisions regarding the possibility of pursuing this type of claim against an employer or making this type of request from an employer. These laws encourage dialogue. That dialogue is best guided by an attorney that can assess the unique issues of your case and also the specifics of your employment or potential employment. Every case is different. Every job is different. Every employee is different. Every employer is different. What is reasonable in one case may be unreasonable in another. Seeking the advice of an attorney regarding each of these issues before making a decision regarding how to proceed will, from what I have seen, probably be one of the best decisions you can make if you feel you need or should be granted a workplace accommodation.

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