Rights of the Disabled in the Workplace
Disability discrimination act in the workplace, affirmative action in the workplace
People today have become more sensitive to the rights and needs of physically
and mentally disabled individuals. Still, the disabled individuals have
not totally escaped the prejudices that are commonly dealt to them most
especially in the workplace. There is a Federal law which seeks to protect
the physically disabled which is the ADA or The Americans With Disabilities
Act from disability discrimination. It simply means that if a disabled
employee is eligible to do a job, then the employer should give them not
a special accommodation but equal opportunity to take on the job. With
the ADA protection, the disabled employee is allowed some equitable accommodation
if necessary so he/she can do the assigned tasks. You have to be thoroughly
familiar with your rights and how you can protect it so that if you believe
that you have been discriminated against, you will be able to stop the
infringement of your rights.
Definition of disabilty discrimination
Simply put, disability discrimination is implementing decisions or actions
based on the individual’s actual or apparent disability which will have
adverse impact to the disabled individual, wherein the individual meets
the criteria of the ADA. The ADA renders it illegal for employers form
an opinion of an eligible employee with disability and to give out a decision
based on the apparent disability in connection to hiring, promotion and
termination of employees, training, wages and benefits, among others.
Being eligible means that the individual, regardless of the disability,
is able to carry out the basic tasks required of the position he/she is
currently handling or wishes to apply for, without or with reasonable
modifications.
How will you know if you are being treated with discrimination because
of your disability?
Proceedings involving laws on discrimination need solid evidence to be
able to hold out. Hence there are really no hard and fast rules on how
you can be certain that you are indeed being discriminated against because
of your physical disability. A lot will depend on your specific case.
Being an “eligible individual” with an apparent disability who has gone
through an unfavorable experience in the workplace does not automatically
qualify you as a discrimination victim. If you are certain that you have
been unfairly treated because of your disablility, it is advisable for
you to seek the advice of a reputable employment attorney. Upon review
of your case, an experienced lawyer will be able to determine whether
you really experienced discrimination. Time is of the essence here because
if you let it go for so long, then you will forfeit the chance to file
a complaint because you can contest only within a limited time after the
adverse action has been done. Also, it is also possible that gathered
evidence can be lost or misplaced and recollection of events by witnesses
can waver.
There a lot of ways by which an individual with disability can become
a victim of discrimination. It can come in the form of potshots dished
out by executives or managers of the company at the disabled individual
as well as antagonistic resolutions of disputes or personnel actions.
These actions could range from lack of upward movement in the position
or compensation and benefits of the employee, being assigned in a deadend
jobs with a very adverse working environment, extra severe disciplinary
actions, suspension or dismissal. It could also be that the disability
requires some minor and logical adjustments in the work area to be able
to carry out the basic requirements of the job and the employer denies
the accommodation. Generally, refusal to install accommodations, giving
out remarks regarding the disability and other prejudicial events leading
to the unfavorable personnel action is the major factor in establishing
the commission of disability discrimination.
Definition of “reasonable accommodation”
Basing on the gudelines issued by the EEOC, i
f an eligible disabled employe requests to make some reasonable modifications
in order to do his/her job, the employer should make an acceptable effort
to provide the modification. The employer and the disabled employee should
discuss how a variable and mutually acceptable process can be set up to
make it work. In effect, the disabled employee should also take responsibility
in finding a workable modification.
If the eligible employee is not able to carry out the basic purpose of
his present assignment, the “reasonable accommodation" could be transferring
the individual to another vacant position. The Supreme Court of the United
States maintains that the employer is not obliged to look for another
position for a worker who is deemed inadequate for the current position
he is holding. Still, an employer cannot also refuse an employee the chance
to try another available position which could be a provision in the existing
company policy.
The steps to take to protect your rights under Title VII
To be able to file a case against your employer in the state or federal
court, you should first bring your discrimination case to EEOC or Equal
Employment Opportunity Commission within 180 days from the date the discrimination
act was committed. There are existing laws in majority of the states like
Colorado which considers it illegal to treat disabled employees with discrimination
and sanctions a state bureau to assist individuals who wish to fle discrimination
cases. Filing of the charges with the EEOC should be done within 300 days
from the day the alleged act was committed; otherwise you will forfeit
your right as provided by this law. On the other hand, you can file a
lawsuit under the ADA wtihin 90 days from receiving from EEOC the Right
to Sue Letter. Inability to follow the prescribed timelines will forfeit
your rights to redress the disability discrimination committed against
you as provided by Title VII.
Filing such charges could become quite complex and the timelines provided
to file the case are quite constricted. It would be advisable to employ
the services of a reputable labor attorney who can guide your through
this intricate process and not waste valuable time. While it is true that
you can file your case with the EEOC without the help of a lawyer, doing
it on your own could become a futile exercise because there might be claims
that you could fail to include which you may no longer claim in a future
complaint.
What can be gained if you win the case?
Title VII provides that an employee is entitled to be paid back lost
earnings; then there will also be payment for the emotional distress caused
and the accompanying physical distress (compensatory damages), there will
also be payment for the illegal act committed (punitive damages) and payment
for lawyer and court fees. If applicable, you can also be compensated
for additional recoveries as required by the State law istead of the Federal
law.
The battle to eliminate discrimination towards disabled employees entails
study of a number of issues to deal with specific cases. What is of primary
importance is for the employees to know their rights as provided by law
in regard to disability discrimination and to be able to sift through
hundreds of labor lawyers and choose the one that can truly represent
their case.
