What is disability discrimination?

Can an employer refuse to hire you because you have a disability? Can you be paid less because you are disabled? What exactly qualifies as a “disability”?

In 1990, Congress passed the Americans with Disabilities Act (ADA) which protects employees from being discriminated against because of their disability. This means that an employer cannot discriminate against a qualified individual on the basis of his disability when it comes to hiring, firing, promotion, and pay. So, an employer cannot deny job benefits to a disabled employee or create tests that screen out otherwise qualified but disabled individuals.

The ADA also requires employers to make reasonable accommodations for disabled employees so that they can perform their jobs.

The ADA covers employers with fifteen or more employees, and, like most federal employment statutes, only applies to employees and not independent contractors. An employee is an individual that the employer has the right to control.

If an employee believes that he has been discriminated against on the basis of his disability, he must show that he has a disability as defined by the ADA, that he was otherwise qualified for the position, and that his employer failed to make a reasonable accommodation.

Disability

There are three ways an employee can show that he has a disability. First, he may have an actual disability—that is, a physical or mental impairment that substantially limits one or more of his major life activities. Second, he may have a record of an actual disability. Third, he may be regarded as having an actual disability.

Actual Disability

To have an actual disability an employee must have first a physical or mental impairment—some disorder that has a negative affect on the employee. The Equal Employment Opportunity Commission (EEOC) defines a physical impairment as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.” The EEOC defines a mental impairment as “any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

For example, an impairment could be the loss of a limb. Similarly, a disease like cancer would be an impairment. Mental illnesses like bipolar disorder would also constitute impairments. Because the cause of the condition does not matter in determining whether it is a disability, conditions like alcoholism that are caused, initially, by voluntary behavior are still considered impairments.

Further, in determining what is a disability courts do not consider any disability-mitigating measures to the above-listed impairments. So, an employee who takes medication for his condition or has a prosthetic limb can still be considered disabled and protected by the ADA.

However, not all impairments will be “disabilities’ under the ADA—the disability must also substantially affect a major life activity. According to the EEOC major life activities include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.” The list of major life activities is intended to be broad so that most activities would be included and that the question of disability focuses more on how substantial the affect of the impairment is.

An impairment is substantial if it makes a major life activity more difficult, more painful, or more time-consuming to perform than the general population. An impairment may also be substantial if it prevents the disabled person from enjoying that major life activity as long as the general population would. The EEOC has classified some impairment that almost always will be considered disabilities under the ADA: deafness, blindness, intellectual disability, partial or complete loss of limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, bipolar disorder, and schizophrenia.

Record Of Disability

To qualify for protection under the ADA, an employee can also show that he has a record of disability. Here, disability means an actual disability—a physical or mental impairment that substantially limits one or more major life activities. So, an employee that has a history of a physical or mental impairment that substantially limits one or more major life activities is protected by the ADA. Thus, an employer cannot discriminate against an employee based on his record of disability. For example, it is unlawful for an employer to look at his employee’s medical history, see his history of disability, and then decide to deny him health benefits given to other non-disabled employees.

However, the fact that an employee received treatment for an impair does not alone mean that he has a record of disability—that disability still must substantially limit a major life activity.

Regarded As Disability

Regarded as disability is different from actual disability and record of disability in that the impairment does not have to substantially limit a major life activity. Instead, an employee is protected under the ADA from discrimination because of a perceived physical or mental impairment. However, regarded as disability can only be used to prove discrimination, not that an employer failed to make a reasonable accommodation for a disabled employee.

For any of the above disabilities—actual disability, record of disability, regarded as disability—employees are protected from discrimination on that basis of their disability by the ADA.