Disability discrimination lawyers will be the first to tell you:
The Employer Must Provide A Reasonable Accommodation To A Disabled Employee.
The law requires an employer to provide “reasonable accommodations” to an employee with a known physical or mental disability. The term “reasonable accommodation” is not precise. What may or may not be a reasonable accommodation is necessarily dependent on the facts of the particular case. In the most general sense, reasonable accommodation means alterations to the work environment or to the manner in which work is accomplished that enable an individual with a disability who is qualified to perform the essential functions of the job to enjoy equally the benefits, privileges, and opportunities of employment.
The Following Is A List Of Reasonable Accommodations:
- Making Existing Facilities Accessible—This includes, improved access to work and non-work areas for disabled employees.
- Job Restructuring—Reallocating or reassigning nonessential or marginal job functions or altering when or how an essential function is performed.
- Part-time or Modified Work Schedule—changing the employee’s job from fulltime to part-time or modifying when and where the essential work gets done;
- Reassignment to a Vacant Position—Reassigning the disabled person to another position in which he or she can perform the essential functions, with or without reasonable accommodations.
Additional accommodations found to be reasonable include the following:
- A leave of absence may be reasonable accommodation as long as the leave does not cause undue hardship for the employer;
- Working from home may be a reasonable accommodation when the essential functions of the position can be performed at home and the arrangement will not cause undue hardship for the employer;
- The purchase of or modification of equipment or device;
- The adjustment or modification of training material, policies or examinations; and
- The hiring of an interpreter or reader.
The interactive process of determining the appropriate accommodation requires the employer to:
- Analyze the particular job involved and determine its purpose and essential function;
- Consult with the disabled employee to ascertain the precise job-related limitation imposed by his or her disability and how those limitations could be overcome with a reasonable accommodation;
- On consultation with the employee, identify potential accommodation and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
- Consider the employee’s preferred accommodation and select the most appropriate one for all parties.
The above detailed process is not as difficult as it may seem. For many cases, the accommodation will be so obvious that it will be unnecessary for the employer and employee to proceed in this step-by-step fashion. For example, an employee in a wheelchair may need to have his or her desk raised so the wheelchair can role under the desk. Here, the request is made, reasonable accommodation identified, and provided.
Ultimately, it is the employer right to choose between two or more possible accommodation and may pick the one that is least expensive or easier to provide.
The accommodation must be reasonable, which is a determination that requires fact-specific, individualized inquiry and investigation. An accommodation is not reasonable if it causes an undue hardship on the employer. A common defense to an employer’s disability discrimination is that the accommodation needed will create an undue hardship on the employer, and, thus, no accommodation is necessary under the law.
Like the term “reasonable accommodations”, “undue hardship” is defined by the surrounding circumstances and is fact intense. “Undue hardship” is an action requiring significant difficulty or expense when considered in light of the following:
- The nature and net cost of the accommodation, taking into consideration the availability of tax credits and deductions as well as outside funding;
- The overall financial resources of the specific facility that will be involved in making the reasonable accommodation as well as the number of persons employed there and the accommodation’s effect on the facility’s expenses and resources;
- The overall financial resources of the employer, its size with respect to the number of employees, and the number, type, and location of its facilities;
- The type of operation of the employer, the composition, structure, and function of its workforce, its geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer; and
- The impact of the accommodation on the operation of the facility in question, including the impact on the ability of other employee to perform their duties and the impact on the facility’s ability to conduct business.
- In other words, the larger or more profitable a company, the more difficult it is to show the accommodation to be unreasonable or creates and undue hardship. While smaller companies should have an easier time showing that a prolonged or expensive accommodation is an undue hardship.
An employer that has been found to have committed disability discrimination is liable for the employee’s lost wages and benefits, including what is referred to as back and front pay, reinstatement of employment, any actual damages, punitive damages to punish the employer and payment of the employee’s attorneys’ fees and costs.
Before bringing a claim for disability discrimination, one must first file a charge with the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). The time to file a charge of disability discrimination is very short, so don’t delay when discrimination happens to you.
We can help file your claim with the EEOC or DFEH. If you feel like you have been subjected to disability discrimination, you need to talk to an attorney that is knowledgeable about worker’s rights and employment law. Many employment law claims have a short statute of limitations, which means that you are not entitled to a recovery if you wait too long. The longer you wait the more likely it is you will not be compensated or the amount you are truly owed will be reduced.
The only way to know for sure is to contact us. Initial consultations and evaluations for employment related violations are confidential and free, so there is no cost to you to find out if you have a valid concern and are entitled to compensation.