Disability and Discrimination by the EEOC

Human
Rights Discrimination

Disability discrimination occurs when an employer or
other entity covered by the Americans with Disabilities Act, as amended, or the
Rehabilitation Act, as amended, treats a qualified individual with a disability
who is an employee or applicant unfavorably because she has a disability.

Disability discrimination also occurs when a covered employer or other
entity
 treats an applicant or employee less favorably because she has
a history of a disability (such as cancer that is controlled or in remission)
or because she is believed to have a physical or mental impairment that is not
transitory (lasting or expected to last six months or less) and minor (even if
she does not have such an impairment).

The law requires an employer to provide reasonable
accommodation to an employee or job applicant with a disability, unless doing
so would cause significant difficulty or expense for the employer (“undue
hardship”).

The law also protects people from discrimination based on
their relationship with a person with a disability (even if they do not
themselves have a disability). For example, it is illegal to discriminate
against an employee because her husband has a disability.

Note: Federal employees and applicants are covered by the
Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The
protections are mostly the same.

Disability
Discrimination & Work Situations

The law forbids discrimination when it comes to any
aspect of employment, including hiring, firing, pay, job assignments,
promotions, layoff, training, fringe benefits, and any other term or condition
of employment.

Disability
Discrimination & Harassment

It is illegal to harass an applicant or employee because
he has a disability, had a disability in the past, or is believed to have a
physical or mental impairment that is not transitory (lasting or expected to
last six months or less) and minor (even if he does not have such an
impairment).

Harassment can include, for example, offensive remarks
about a person’s disability. Although the law doesn’t prohibit simple teasing,
offhand comments, or isolated incidents that aren’t very serious, harassment is
illegal when it is so frequent or severe that it creates a hostile or offensive
work environment or when it results in an adverse employment decision (such as
the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor
in another area, a co-worker, or someone who is not an employee of the
employer, such as a client or customer.

Disability
Discrimination & Reasonable Accommodation

The law requires an employer to provide reasonable
accommodation to an employee or job applicant with a disability, unless doing
so would cause significant difficulty or expense for the employer.

A reasonable accommodation is any change in the work
environment (or in the way things are usually done) to help a person with a
disability apply for a job, perform the duties of a job, or enjoy the benefits
and privileges of employment.

Reasonable accommodation might include, for example,
making the workplace accessible for wheelchair users or providing a reader or
interpreter for someone who is blind or hearing impaired.

While the federal anti-discrimination laws don’t require
an employer to accommodate an employee who must care for a disabled family
member, the Family and Medical Leave Act (FMLA) may require an employer to take
such steps. The Department of Labor enforces the FMLA. For more information,
call: 1-866-487-9243.

Disability
Discrimination & Reasonable Accommodation & Undue Hardship

An employer doesn’t have to provide an accommodation if
doing so would cause undue hardship to the employer.

Undue hardship means that the accommodation would be too
difficult or too expensive to provide, in light of the employer’s size,
financial resources, and the needs of the business. An employer may not refuse
to provide an accommodation just because it involves some cost. An employer
does not have to provide the exact accommodation the employee or job applicant
wants. If more than one accommodation works, the employer may  choose
which one to provide.

Definition
of Disability

Not everyone with a medical condition is protected by the
law. In order to be protected, a person must be qualified for the job and have
a disability as defined by the law.

A person can show that he or she has a disability in one
of three ways:

A person may be disabled if he or she has a physical or
mental condition that substantially limits a major life activity (such as
walking, talking, seeing, hearing, or learning).

A person may be disabled if he or she has a history of a
disability (such as cancer that is in remission).

A person may be disabled if he is believed to have a
physical or mental impairment that is not transitory (lasting or expected to
last six months or less) and minor (even if he does not have such an impairment).

Disability
& Medical Exams During Employment Application & Interview Stage

The law places strict limits on employers when it comes
to asking job applicants to answer medical questions, take a medical exam, or
identify a disability.

For example, an employer may not ask a job applicant to
answer medical questions or take a medical exam before extending a job offer.
An employer also may not ask job applicants if they have a disability (or about
the nature of an obvious disability). An employer may ask job applicants
whether they can perform the job and how they would perform the job, with or
without a reasonable accommodation.

Disability
& Medical Exams After A Job Offer For Employment

After a job is offered to an applicant, the law allows an
employer to condition the job offer on the applicant answering certain medical
questions or successfully passing a medical exam, but only if all new employees
in the same type of job have to answer the questions or take the exam.

Disability
& Medical Exams For Persons Who Have Started Working As Employees

Once a person is hired and has started work, an employer
generally can only ask medical questions or require a medical exam if the
employer needs medical documentation to support an employee’s request for an
accommodation or if the employer believes that an employee is not able to
perform a job successfully or safely because of a medical condition.

The law also requires that employers keep all medical
records and information confidential and in separate medical files.

Available
Resources

In addition to a variety of formal guidance
documents
, EEOC has developed a wide range of fact sheets, question &
answer documents, and other publications to help employees and employers
understand the complex issues surrounding disability discrimination.

The ADA Amendments Act


The Questions and Answers Series

Mediation and the ADA