Think You Have a Disability Discrimination Claim Against Your Employer? Recent Changes in the Law May Make It Easier to Prove Your Case.

For more than two decades, the Americans with Disabilities Act (“ADA”) prohibited employers from discriminating against current and prospective employees with disabilities. What many don’t know, however, is that a series of recent changes have broadened certain definitions to ease some of the burden on those filing discrimination disability claims. The effect has been a 30% increase in the number of such cases filed with the Equal Employment Opportunity Commission (“EEOC”) with more disabled workers having their day in court.

What Hasn’t Changed

Under the ADA, an individual seeking protection under the law must prove that:

  1. He or she is a qualified individual with a disability,
  2. who can perform, with or without reasonable accommodation, the essential functions of the specific employment position,
  3. without creating undue hardship for the employer,
  4. or a direct threat to oneself or others.

Additionally, the definition of disability remains unchanged and includes:

  1. A physical or mental impairment that substantially limits one or more of the major life activities of an individual;
  2. a record of such an impairment; and
  3. being regarded as having such an impairment.

A “major life activity” is defined to include caring for one-self, performing manual tasks, walking, seeing, hearing, speaking, breathing and learning. In addition, other major life activities may include standing, lifting, sleeping, bending eating, reading, concentrating, thinking, communicating and the operation of any major bodily function.

It should be noted that the ADA specifically prohibits discrimination against a disabled employee in ways which include the following: failure to hire or promote, demotion, denial of a pay increase, bonus or other benefit or termination. In addition, the ADA, also prohibits an employer from retaliating against the individual for seeking accommodation of his or her impairment or filing a discrimination complaint.

If a disabled person is capable of performing the job, the employer is required to discuss with the individual possible accommodations based upon the nature of the disability and the essential functions of the position.

Additionally, a successful claim of discrimination, or the failure to provide reasonable accommodation, may warrant damages including back wages and benefits, compensation for mental and emotional distress, and reimbursement of attorney fees and costs.

What Has Changed

Prior to 2008, a disturbing trend among disability discrimination cases took hold – courts and administrative agencies focused more attention on the existence of the employee’s disability rather than the employer’s alleged discrimination. As a result, a significant number of claims were dismissed without ever examining the propriety or impropriety of the employer’s conduct.

Beginning with the enactment of the Americans with Disabilities Act Amendments Act (“ADAAA”) in 2008 the focus has shifted away from the disability in favor of greater emphasis on the purported discrimination. New interpretive regulations from the EEOC implemented in May 2011 provide a set of rules by to evaluate whether the individual’s impairment substantially limits major life activities, such as:

  • The assessment of an individual’s impairment, previously required by the ADA, be interpreted against a standard of functional limitation lower than previous standards
  • The analysis must compare the individual’s impairment to the abilities of most people of the general population, while not necessarily calling for scientific or medical evidence
  • Mitigating measures or ameliorative devices (except ordinary glasses or contact lenses) will not be considered in the determination of the impairment

Some legal experts believe that these and the other interpretive rules will effectively eliminate employers’ ability to defend these claims by challenging whether the impairment qualifies as a disability.

If you or someone you know has been the victim of discrimination based on a disability, the law has perhaps never been more favorable to you than it is now. We can help assess the facts of your claim against the ADA, ADAAA, and other laws – feel free to contact us to discuss your situation.

Daniel D. Swanson

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Daniel D. Swanson

Dan Swanson has extensive experience in employment litigation, handling claims of breach of employment contract, non-competition agreements, discrimination, whistleblower claims, sales representative commission disputes, Family & Medical Leave Act claims, and other employment-related actions, as well as representing individuals in severance negotiations.