Are You Protected by the Americans with Disabilities Act? The Americans with Disabilities Act (ADA) was signed into law in 1991 and under went major revisions by an Amendment of July 1995. Among other things, this federal legislation prohibits employment actions that have a disparate on persons with disabilities, regardless of whether the employer intended to discriminate. It affects any establishment or institution that provides accommodations and services, including schools and businesses. An employer may not base their decision not to hire a specific individual because of their disabilities. Since most individuals afflicted with Inflammatory Bowel Disease (IDB) such as Crohns or Ulcerative Colitis have all their limbs, they may not appear disabled to the prospective employer. Also, the job applicant may wisely take a "Don't ask, don't tell" approach during the interview. Therefore, for most of us with IBD, the ADA likely has more practical application after one has become employed. The same may be true of other disabilities. The Court noted in one recent case, Susie v. Apple Tree Preschool and Child Care Center, that: "It is doubtful that most employers have full knowledge of their employees disabilities at the time of their hire" and "because many disabilities worsen over time, the scope and nature of the employer's duty to reasonably accommodate the disability may also change dramatically." Thus, where an employer has knowledge that an employee is disabled, the employer is required under the ADA to provide reasonable accommodations to the affected employee. A recent court decision also added the caveat that a person is considered covered by this act if the individual is perceived by the employer to have a disability. Reasonable Accommodation What type of accommodations may the employer be required to make? An extreme example includes an employer that was required to hire a "reader" for a blind attorney. Obviously this accommodation was costly to the employer; however, not every employee would be entitled to such an accommodation. Each case depends on many variables, such as the employer's financial ability to make a certain provision. The employee's needs must be balanced with the employer's ability to provide a certain requested provision. For an individual suffering from IBD the accommodations may be far less costly: more time for necessary visits to the bathroom, a more flexible schedule and perhaps more time off for exigencies such as flare-ups and hospitalizations. The employee may even volunteer to take excessive leave without pay. The relevant issue is simply: what is reasonable. One thing for sure, Lawyers love the word reasonable. What is reasonable in a particular situation is something that can be argued by learned members of the bar until the cow comes home (or perhaps until the bar closes). The word "reasonable" guarantees a unique analysis of each factual situation. It must also take into account the impact on a specific employer. Obviously, larger employers will be deemed to be able to provide more extensive, as well as more expensive, accommodations. Other Relief Sometimes those who suffer from chronic illnesses have other problems only tangentially related to their underlying illness. Some become addicted to drugs for instance. The courts have previously determined that addiction to legal drugs is a covered disability under the ADA. Such an individual is entitled to hospitalization, treatment and other accommodations. Moreover, even an individual addicted to illegal drugs may not be discriminated against because he or she has completed a rehabiliataion program. The employee is entitled to resume the previous job once they are able to return to work. Damages When an employer is found liable for discrimination, the disabled person may recover not only compensatory damages (i.e., lost wages and future loss of earning capacity), he or she may also receive damages for emotional distress, pain and suffering, mental anguish and other incidental and consequential damages. In an appropriate case, where the employer's conduct is found to be intentional and either malicious, oppressive or fraudulent, the employee may recover punitive damages (for the purpose of making an example of the employer and to dissuade the subject employer or any other employer from participating in that type of discriminatory conduct in the future). In addition to monetary recover, the courts are vested with the power to order equitable relief. This may include proscribing accommodations for the disabled, ordering reinstatement of the employee, elevating an employee to a promotion or provide prospective remedies to prevent similar discrimination to a class of employees or future job applicants. Who is disabled? The ADA defines "disabled" as a person who has suffered impairment of his or her body so as to seriously restrict the individually in their ability to engage in normal life activities. As noted above, this also includes those individuals who may not be so impaired, but who the employer considers as impaired. Since this law and in particular, its recent amendment, are relatively new, we can only speculate as to what type of illness would definitely be covered by interpreting different, but similar legislation, such as the federal Rehabilitation Act. For instance, past cases decided under the Rehabilitation Act have determined that alcoholism and drug addiction are covered disabilities. This author has successfully applied the reasoning in those cases to similar cases under the ADA. Moreover, the author has succeeded in surviving legal challenges to a case involving a worker "disabled" with Irritable Bowel Syndrome (IBS), at least in the lower courts. It must be speculated, therefore, that an appropriate case involving IBD could be prosecuted resulting in relief for an individual who has been the subject of discrimination based on the patient's IBD. There is currently a split on this in the different circuit courts around the country. However, even in New York which has determined that IBD is not a disability per se, the courts have noted that each case must turn on its own facts. Therefore, the type of duties the employee must fulfill in the work environment may play a large part in determining whether a particular illness or handicap may be impossible to do a particular job, with or without accommodations. What should you do if you believe you are a victim of any kind of employment discrimination? The most important thing any potential litigant can do to protect their rights is to document the problem. In virtually every employment case, the management will rally together the supervisors of the complaining employee and raise or manufacture issues relative to the employees competence. The intent is rather obvious: to steer the inquiry away form the alleged discrimination and focus the attention instead on the the employees alleged lack of competence. To protect oneself from this diversionary tactic or from outright fabrication: 1. Document the illness with medical records; 2. Put all of your complaints in writing. This serves also to provide your employer with irrefutable knowledge of your disability and also establishes a time line (perhaps later demonstrating that the disability issues preceded any allegations with poor work performance); 3. Make specific recommendations regarding what type of accommodations could reasonably be provided;
4. Enlist the support of co-coworkers. 5. Exhaust your "administrative remedies". To do this:
6. File a complaint with either the Department of Fair Employment and Housing (DFEH) for the state or the Equal Employment Opportunities Commission (EEOC) for the federal Government. This is your next alternative after you have been unsuccessful within the company. Note that many large employers have internal EEO departments or other alternatives through the human resource or personnel department. Be sure to try all of the companies resources, first. Often the employee handbook is a good source of this information. 7. If all else fails, consult a lawyer. Many will give you a free or reduced fee for the initial consultation. Mr. Stephens is an attorney practicing in Contra Costa County, California. He received his Juris Doctorate form San Francisco Law School. He is a Civil Litigator specializing in Employment Law.
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