Disability Discrimination

Ryan Archibald
Ryan Archibald

Table of Contents

Disabilities, both visible and invisible, are a prime target for discrimination in recruiting and the workplace. Read on to learn about the types of disability discrimination, laws related to disability discrimination, and examples to help create a better employee experience.

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What Is Disability Discrimination?

Disability discrimination occurs when an employer treats a qualified individual, someone who is qualified for a given position, unfavorably due to their existing disability or their history of having a disability.

Types of Disability Discrimination

Disability discrimination can take several forms. This section describes each type to help identify discrimination in your organization.

Type 1: Harassment

Harassment is when a candidate or employee is taunted or ridiculed based on a disability.

Type 2: Direct Discrimination

A manager or employer’s conscious choice to treat an employee differently because of a disability is direct discrimination.

Type 3: Indirect Discrimination

Indirect discrimination is a company policy or practice that puts individuals with disabilities at a disadvantage. The employer may not be aware of this or its adverse impact.

Type 4: Failure to Make Reasonable Accommodation

This is a failure by an employer to make an effort toward accommodation for an employee with a disability.

Type 5: Accommodations Arising from Disability

Discrimination of an employee can be based on accommodation made for a disability.

Type 6: Victimization

Victimization can be threats or mistreatment by employers toward an employee making a complaint about disability discrimination.

Laws Employers Should Know about Disability Discrimination

Familiarizing yourself with the laws in this section will help you build credibility with leadership as you create processes and suggest improvements to combat disability discrimination in your workplace.

Americans with Disabilities Act (ADA)

This law prohibits employers from discriminating against people with disabilities in all aspects of the employment relationship: hiring, pay, benefits, firing, and promotions.

Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA)

This act requires employers with federal contractors to provide equal employment opportunities for Vietnam veterans. It also prohibits discrimination against Vietnam veterans in a full range of employment activities.

Civil Service Reform Act (CSRA)

The CSRA covers several federal agencies, promotes fairness, and prohibits discrimination against applicants and employees with disabilities.

Examples of Disability Discrimination

This section gives an example of each type of disability discrimination discussed above.

Example 1: Harassment

Bullying, nicknames and inappropriate comments are examples of harassment. Specific examples could be

“Hey retard, are you sure you can do this job?”

“What would happen if I knocked you over?”

Example 2: Direct Discrimination

A manager who doesn’t promote an autistic employee because of the disability is directly discriminating against the employee.

Example 3: Indirect Discrimination

An example of indirect discrimination could be a company requiring all applicants to complete an online assessment that is set up like a game. This may put individuals with disabilities at a disadvantage if they are unable to complete the assessment.

Example 4: Failure to Make Reasonable Accommodation

Often an employee with a disability requires equipment and a special desk in order to complete their daily tasks. If they request these but the manager does not provide them, it is a failure to make accommodation.

Example 5: Accommodations Arising from Disability

A service dog is allowed in the office to support an employee with a disability. If other employees complain that they should be able to bring in their pets who are not trained to support disabilities, this is discrimination arising from accommodation.

Example 6: Victimization

If an employee makes a request for reasonable accommodation to their manager and the manager responds by demeaning comments or yelling that the company doesn’t have time or money to comply, this employee has experienced victimization.

How To Combat Disability Discrimination in Your Workplace

It can seem daunting to handle disability discrimination when it comes up in your organization. This section is meant to give you practices to prevent and combat this discrimination.

Step 1: Office Accessibility

Employers can take basic steps to combat discrimination. This includes- ramps to the front door, accessible bathrooms, and office equipment. You don’t know if individuals with disabilities will apply to your organization. It is better to be ready for them to show up at any time.

Step 2: Interviewing Candidates

Do not ask a candidate about their disability. Keep all interview questions focused on their ability to perform the job; it is possible to have candidates perform the job to see how they would approach completing tasks.

Step 3: Employment Policy

Define a company policy that will help leaders and employees alike understand how to company will handle disability discrimination- ensure it is included in the company handbook that everyone will sign and agree to abide by. SHRM provides a great policy template for you to tailor to your organization.

Example Statements Your Business Can Use To Stay Compliant

The following statements are excerpts from SHRM.org:

General Statement of Compliance

“The Americans with Disabilities Act (ADA) and the Americans with Disabilities Amendments Act (ADAAA) are federal laws that require employers with 15 or more employees to not discriminate against applicants and individuals with disabilities and, when needed, to provide reasonable accommodations to applicants and employees who are qualified for a job, with or without reasonable accommodations, so that they may perform the essential job duties of the position.

It is the policy of [Company Name] to comply with all federal and state laws concerning the employment of persons with disabilities and to act in accordance with regulations and guidance issued by the Equal Employment Opportunity Commission (EEOC). Furthermore, it is the company policy not to discriminate against qualified individuals with disabilities in regard to application procedures, hiring, advancement, discharge, compensation, training, or other terms, conditions, and privileges of employment.”

Statement of Procedures a Business Will Follow

“When an individual with a disability requests accommodation and can be reasonably accommodated without creating an undue hardship or causing a direct threat to workplace safety, he or she will be given the same consideration for employment as any other applicant. Applicants who pose a direct threat to the health, safety, and well-being of themselves or others in the workplace when the threat cannot be eliminated by reasonable accommodation will not be hired.

[Company Name] will reasonably accommodate qualified individuals with a disability so that they can perform the essential functions of a job unless doing so causes a direct threat to these individuals or others in the workplace and the threat cannot be eliminated by reasonable accommodation or if the accommodation creates an undue hardship to [Company Name]. Contact human resources (HR) with any questions or requests for accommodation.

All employees are required to comply with the company’s safety standards. Current employees who pose a direct threat to the health or safety of themselves or other individuals in the workplace will be placed on leave until an organizational decision has been made in regard to the employee’s immediate employment situation.

Individuals who are currently using illegal drugs are excluded from coverage under the company’s ADA policy.

The HR department is responsible for implementing this policy, including the resolution of reasonable accommodation, safety/direct threat, and undue hardship issues.”

Terms You Should Know

As used in this ADA policies stated above, the following terms have the indicated meaning:

  • Disability: A physical or mental impairment that substantially limits one or more major life activities of the individual, a record of such an impairment, or being regarded as having such an impairment.
  • Major life activities: Term includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
  • Major bodily functions: Term includes physical or mental impairment such as any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. Also covered are any mental or psychological disorders, such as intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
  • Substantially limiting: In accordance with the ADAAA final regulations, the determination of whether an impairment substantially limits a major life activity requires an individualized assessment, and an impairment that is episodic or in remission may also meet the definition of disability if it would substantially limit a major life activity when active. Some examples of these types of impairments may include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment, such as cancer that is in remission but that may possibly return in a substantially limiting form, is also considered a disability under EEOC final ADAAA regulations.
  • Direct threat: A significant risk to the health, safety, or well-being of individuals with disabilities or others when this risk cannot be eliminated by reasonable accommodation.
  • Qualified individual: An individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
  • Reasonable accommodation: Includes any changes to the work environment and may include making existing facilities readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, telecommuting, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
  • Undue hardship: An action requiring significant difficulty or expense by the employer. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include
    • The nature and cost of the accommodation.
    • The overall financial resources of the facility or facilities involved in the provision of reasonable accommodation, the number of persons employed at such facility, the effect on expenses and resources, or the impact of such accommodation on the operation of the facility.
    • The overall financial resources of the employer; the size, number, type, and location of facilities.
    • The type of operations of the company, including the composition, structure, and functions of the workforce; the administrative or fiscal relationship of the particular facility involved in making the accommodation to the employer.
  • Essential Functions of the job: Term refers to those job activities that are determined by the employer to be essential or core to performing the job; these functions cannot be modified.

The examples provided in the above terms are not meant to be all-inclusive and should not be construed as such. They are not the only conditions that are considered to be disabilities, impairments, or reasonable accommodations covered by the ADA/ADAAA policy.

What To Do If You’ve Experienced Disability Discrimination

Anyone who believes that they have been discriminated against should notify HR as soon as possible.

As the HR representative for your employer- it is imperative you move quickly to verify the claim and if anyone else is impacted. Please refer to the Workplace Investigations article for steps on how to conduct an investigation.

Questions You’ve Asked Us About Disability Discrimination

How does an employee prove disability discrimination?
Under the ADA, the employee or plaintiff must demonstrate: They are disabled. They are otherwise qualified for the position with or without accommodation. They have suffered an adverse employment decision. The employer knew about the employee’s disability. The disabled employee was replaced or their position remained vacant while the employer recruited applicants for the same position.
What is the average settlement for disability discrimination?
It is difficult to determine the average settlement amount. The EEOC (https://www.eeoc.gov/remedies-employment-discrimination) has set guidelines for the reparation an employee or candidate may receive for their case. Click here to read about a recent case out of Chicago. (https://www.eeoc.gov/newsroom/idec-corporation-pay-275000-settle-eeoc-disability-discrimination-lawsuit)
Ryan Archibald
Ryan Archibald

Ryan is an HR Director with four years of experience and three masters degrees. One accomplishment he is proud of is the design and launch of a learning and development program for 800+ employees.

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