ADA Disability Discrimination Claims

The Americans with Disabilities Act of 1990 (ADA) prevents employers from making adverse employment decisions based upon the disability of an employee or applicant. If an employee or applicant can perform the essential functions of a job with reasonable accommodation, an employer is not allowed to discriminate against him or her because of that disability.

Illegal Disability Discrimination under the ADA

Illegal disability discrimination under the ADA may include the following types of conduct:

• Refusing to reasonably accommodate an employee’s disability.

Example: An employer refuses to allow an assembly-line employee to sit down on the job, even though the employee has difficulty standing for long periods of time and even though the sitting will not decrease her productivity.

• Refusing to hire a qualified applicant because of his or her disability or perceived disability.

Example: Employer refuses to hire a cancer survivor because of the fear that he might miss a lot of work for doctor’s appointments.

• Asking an applicant improper questions during the interview process.

Example: Instead of asking whether the employee could perform the essential functions of the job, the employer asks the applicant whether he has any disabilities that would interfere with his ability to do the job.

Filing a Charge of Illegal Discrimination

Employees or applicants who believe that they have been subjected to illegal disability discrimination may file a claim with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing the ADA. Employees or applicants in most states have up to 300 days after the alleged discrimination has occurred to file a claim with the EEOC. In some states, however, the time period for filing a claim may be only 180 days.

Once a claim of ADA discrimination has been filed, the EEOC will contact the employer and investigate the claim. In some cases, the EEOC will suggest that the parties mediate the claim.

If the EEOC determines that disability discrimination did not occur, it will send a “right to sue” letter to the employee or applicant. The letter will notify the employee or applicant that he or she may file his or her own lawsuit against the employer, but that the EEOC will not be pursuing the action.

If the EEOC determines that disability discrimination did occur, it will attempt to settle the claim. If the settlement attempt is unsuccessful, the EEOC may file its own enforcement action against the employer in federal court. It may also issue a “right to sue” letter to the employee or applicant, and the employee or applicant may pursue a lawsuit on his or her own. ADA discrimination actions may be filed in federal or state court, although the employer may “remove” an ADA claim filed in state court to a federal forum.

Employees or applicants who prevail in ADA disability discrimination actions may be entitled to a number of remedies, including hiring, back pay, attorney fees, or reasonable accommodation.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.