Employment Discrimination. Rights and Remedies for People With Disabilities

Transcription

1 Employment Discrimination Rights and Remedies for People With Disabilities March 2010

2 This booklet, written by staff attorneys at Legal Rights Service (LRS), summarizes employment rights protection and remedies for people with disabilities. Information contained in the booklet does not take the place of legal advice for any specifi c case of employment discrimination. For advice about your specifi c case, LRS recommends you consult a lawyer. LRS is an independent agency of the State of Ohio. LRS is designated under federal law as the system to protect and advocate the rights of people with disabilities and as the Client Assistance Program under the Rehabilitation Act. The mission of LRS is to protect and advocate, in partnership with people with disabilities, for their human, civil and legal rights Legal Rights Service All Rights Reserved 2 Employment Discrimination

3 Employment Discrimination Rights and Remedies for People with Disabilities Table of Contents Introduction...4 Disability and discrimination defi ned Act Quickly... 5 Laws and enforcement agencies Complaint and lawsuit time lines Obtain Legal Advice... 8 Unfair versus illegal Referrals to fi nd a lawyer Informal Methods... 9 Kinds of informal methods Complaints to Government Agencies...9 Complaint versus charge Note about state employees Complaints to federal agency: EEOC EEOC 300-day time line EEOC contact information Complaints to state agency: OCRC OCRC process and probable cause defi ned OCRC mediation and hearing Right to appeal OCRC dismissal OCRC regional offi ces Lawsuits in State and Federal Court EEOC right-to-sue letter Lawsuits by EEOC Lawsuit time lines in state court...16 Remedies Kinds of remedies Frequently Asked Questions Rights and Remedies 3

4 Introduction Employment Discrimination Rights and Remedies for People with Disabilities Employment discrimination based on disability is against the law. You have the legal right to equal employment opportunities available to all people. However, employment laws are very complicated. For example, even the legal defi nitions of discrimination and disability are still being argued in courts. Also, you have only limited time to assert your legal rights. If you do not assert your rights within the time allowed, you may lose your rights under the laws. Ohio law states that disability "means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment." Ohio law states that discrimination "includes, but is not limited to, segregating or separating, according different treatment, or taking actions fair in form but which have a disparate impact, on the basis of membership in a protected class. Employment discrimination includes fi ring or demoting, refusing to hire or promote, refusing to provide a reasonable accommodation, or providing unequal pay or benefi ts to a person because of that person s disability. 4 Employment Discrimination

5 If you believe an employer has discriminated against you because you have a disability, LRS recommends you: Act quickly to protect your rights, and Obtain legal advice to help you decide whether to Resolve the dispute through informal methods, or File complaints with government agencies, or Sue the employer in court. Act Quickly Employment discrimination is a complicated area of the law. Employment is regulated by federal, state, and local laws. These laws are enforced by several federal and state agencies and are applied in federal and state courts. The table on the next page summarizes the laws which prohibit employment discrimination and identifi es the government agencies which enforce those laws, as well as the websites where you can read these laws at no cost. Most public libraries provide public Internet access and may also have these laws in their collections in print. Law schools usually have specialized law libraries, and most allow public access to read the laws in print. Websites for More Information About Employment Discrimination Laws Equal Employment Opportunity Commission (EEOC): Rehabilitation Act of 1973: or Ohio Revised Code, Chapter 4112: Rights and Remedies 5

6 Law Also called Prohibits employment discrimination Enforced by Equal Pay Act of 1963 Public Law or 29 USC 206(d) Based on sex, in the payment of wages and benefi ts EEOC Civil Rights Act of 1964, Title VII Public Law or 42 USC 2000e Based on race, color, religion, sex, and national origin, and prohibits sexual harassment and pregnancy EEOC Age Discrimination in Employment Act of 1967 Public Law or 29 USC 621 Based on age, 40 years and older EEOC Rehabilitation Act of 1973, Section 504 Public Law or 29 USC 794 Based on disability, by health care or human services providers who receive federal funds, such as hospitals, nursing homes, mental health centers and other services programs U.S. Department of Health and Human Services Rehabilitation Act of 1973, Sections 501 and 505 Public Law or 29 USC 794 Based on disability, by federal government employers EEOC Americans with Disabilities Act of 1990 Titles I and V Public Law or 29 USC 791 Based on disability, by non-government employers and by state and local government employers EEOC ADA Amendments Act of 2008 Public Law or 42 USC Clarifi es the defi nition of disability under the Americans with Disabilities Act (ADA) EEOC Lily Ledbetter Fair Pay Act of 2009 Public Law Clarifi es that each paycheck representing discriminatory pay renews the period of time for fi ling a claim EEOC Ohio Revised Code, Chapter 4112 Civil Rights Commission Based on race, color, religion, sex, national origin, disability, age, and ancestry Ohio Civil Rights Commission 6 Employment Discrimination

7 Laws that prohibit employment discrimination allow limited time periods to fi le complaints and lawsuits. In general, the time period begins when you become aware that the employer has discriminated against you. When the time period ends, you may lose your rights to fi le complaints and lawsuits against the employer, and you may lose your rights to remedies for the harm done to you. The table below summarizes the time periods to fi le complaints and lawsuits. Agency Complaints Federal Agency Equal Employment Opportunity Commission (EEOC) State Agency Ohio Civil Rights Commission (OCRC) Must fi le complaint within 180 days of the employer s discrimination or within 300 days if you fi le fi rst with the OCRC. Must fi le complaint within 6 months of the employer s discrimination. Lawsuits in Court Federal Laws Agency complaint required before lawsuit. State Laws Agency complaint not required before lawsuit. Must fi le lawsuit within 90 days of EEOC s right-to-sue letter. State government employees: must fi le lawsuit within 2 years in Court of Claims if seeking damages, or within 6 years in Court of Common Pleas if only seeking injunctive or declaratory relief. Non- state government employees: must fi le lawsuit within 6 years in Court of Common Pleas. In addition to complaints and lawsuits, you have informal options to resolve disputes about employment discrimination. Unlike complaints and lawsuits, these informal options have no limited time period. You can begin discussion, negotiation and mediation whenever you and the employer agree to do so. However, your arguments may lose force and the employer may grow less willing to compromise as time passes. The time to fi le complaints and lawsuits continues to run out while you try informal options. Employment law is complicated. You must choose among several informal and legal options by which to assert your rights, and you must act within a limited time period to preserve your rights. In order to protect your rights to equal employment opportunities, LRS recommends that you obtain legal advice about your rights as soon as possible. Rights and Remedies 7

8 Obtain Legal Advice An employer may treat you very unfairly, but that treatment may not necessarily be illegal. Treatment that feels unfair may be a legal employment practice, or it may be illegal discrimination. Ohio is an employment-at-will state, which allows the employer to refuse employment, to deny promotion and to fi re employees for almost any reason, so long as the reason is not against the law. However, discrimination in employment based on disability is against the law. Ohio's law prohibiting employment discrimination is summarized in a poster produced by the Ohio Civil Rights Commission (OCRC). To view the poster go to gov/publications/fepposter03-08.pdf If you believe that an employer has illegally discriminated against you because you have a disability, LRS recommends that you obtain legal advice as soon as possible. LRS advocates and lawyers can advise you and represent you in some kinds of employment discrimination cases. LRS does not charge fees to its clients for services. However, LRS cannot accept all cases, because funding is limited, and yearly program priorities restrict the kinds of cases LRS may accept. If LRS cannot accept your case, you can obtain referrals to lawyers through your state and local bar associations. You can also obtain legal advice and referrals from the legal aid society in your area. Legal aid societies provide free legal services to people who have very low incomes. Contact Information for Legal Advice Legal Rights Service / or TTY / Ohio Legal Services Ohio State Bar Association (OSBA) (find a lawyer) (local bar associations) A lawyer can advise you, according to the details of your specifi c case, about the best ways to assert your legal rights. Asserting your legal rights may require any combination of informal methods, complaints to government agencies and lawsuits in court. 8 Employment Discrimination

9 Informal Methods Most employment discrimination disputes are resolved through informal methods. The most basic informal method is talking with the employer to explain your legal right to equal employment opportunity under the laws. Informal methods include: Self-advocacy during discussions with the employer; Community support and persuasion; Advocacy and negotiation by a professional advocate; Mediation and dispute resolution by a neutral party. If your lawyer advises you that informal methods may achieve your goals and will not jeopardize your rights, you may try to resolve your dispute informally before you fi le complaints with government agencies and before you file suit in court. For example, an employer who denies your request for a reasonable accommodation may agree to your request if you provide documentation that demonstrates the necessity for the requested reasonable accommodation in order for you to perform essential job functions. If informal methods do not resolve your dispute with the employer, you have the right to fi le complaints and lawsuits. You have limited time to do so. Complaints to Government Agencies If you believe the employer has discriminated against you because you have a disability, you have the right to fi le complaints with the federal and state agencies that enforce employment laws. Federal laws that prohibit employment discrimination require you to fi le a complaint before you may fi le a lawsuit in court. Ohio s state discrimination laws allow you to fi le a lawsuit whether you fi le a complaint or not. Complaint and charge have slightly different meanings. Government agencies and their regulations usually refer to your complaint as your charge. The two words are often used to mean the same thing. For consistency, this booklet always uses the word complaint. Rights and Remedies 9

10 Government agencies do not charge fees to fi le a complaint. You can fi le complaints with or without a lawyer, in person or by mail. If you ask, government agencies must provide you reasonable accommodation for your disability so you can: fi le your complaint, be able to review documents, and attend interviews and participate in meetings throughout the complaint process. The government agency will review your complaint and will decide whether or not to investigate further. The government agency may dismiss your complaint at any time after initial review. If your complaint is dismissed, you have the right to a review of that decision. Federal government agencies review and investigate complaints of federal law violations and state government agencies review and investigate complaints of state law violations. However, employment discrimination commonly violates both federal and state laws. Federal and state government agencies cooperate so that complaints are properly reviewed and investigated, regardless of the agency which receives the complaint. If you have any doubt whether to fi le your complaint with a federal or state agency, LRS recommends that you fi le your complaint with both. State employees may sue state government employers in state courts under state laws without fi rst fi ling a complaint with a government agency. However, state employees may or may not be able to sue state government employers in federal courts. Different federal courts have reached different conclusions about which federal employment laws protect state employees, when lawsuits must be fi led, and whether state employees must fi rst fi le a complaint with a state government agency before they may fi le a lawsuit in federal court. If you are a state employee, LRS recommends that you consult a lawyer about your options. 10 Employment Discrimination

11 Complaints to EEOC - Federal Agency The U.S. Equal Employment Opportunity Commission (EEOC) investigates complaints about violations of federal laws. Nearly all laws enforced by the EEOC require you to fi le a complaint before you may fi le a lawsuit in court. If you plan to fi le a lawsuit and you are not a state employee, you must fi rst fi le a complaint with the EEOC within 300 days of the time you become aware that the employer has discriminated against you. This means that your complaint must be fi led within 300 days. Just completing the EEOC s intake questionnaire does not count as fi ling a complaint. The EEOC can accept, and should accept, your complaint later than 300 days in certain situations. For example, the EEOC should accept your complaint after the 300 day deadline if the employer concealed facts that would support your complaint, or if you otherwise had no reason to suspect that the employer discriminated against you at the time. To be certain to preserve your right to fi le a complaint, LRS recommends that you fi le your complaint within the 300 day time period. If you work for a federal agency or a federal contractor, you must fi le your complaint internally with the employer s Equal Employment Opportunity Offi ce within 45 days of the violation. During the EEOC investigation and again after the EEOC completes its investigation, the EEOC will assist you and the employer to reach an agreement to remedy the harm done to you (see remedies on page 18). If you and the employer do not reach an agreement, or if the employer does not keep its agreement with you, the EEOC may sue the employer in court. However, the EEOC is not required to sue the employer in court, even if the EEOC investigation fi nds that the employer violated the law or broke its agreement with you. For more information, see the section called Lawsuits in State and Federal Court on page 16. The EEOC may dismiss your complaint at any time during the complaint process. You will be notifi ed in writing of the dismissal and of your right to fi le a lawsuit within 90 days of the dismissal. Rights and Remedies 11

12 You can file an EEOC complaint in person, by telephone, or by mail. EEOC Headquarters, 131 M Street NE, Washington, DC TEL / TTY / website EEOC Cleveland Field Office Anthony J. Celebrezze Federal Building 1240 East 9th Street, Suite 3001 Cleveland, Ohio TEL / TTY FAX To fi le a complaint, call the EEOC Headquarters listed above. EEOC Cincinnati Area Office John W. Peck Federal Offi ce Building 550 Main Street, 10th Floor Cincinnati, Ohio TEL TTY FAX To fi le a complaint, call the EEOC Headquarters listed above. Complaints to OCRC - State Agency The Ohio Civil Rights Commission (OCRC) investigates complaints about state law violations. If your complaint includes a federal law violation, OCRC will fi le your complaint with the EEOC, but OCRC usually keeps and processes the complaint. If you have any doubt about whether to fi le your complaint with a federal or state agency, LRS recommends that you fi le your complaint with both. Ohio laws which prohibit employment discrimination do not require you to fi le a complaint with the OCRC before you may fi le a lawsuit in a state court. However, if you decide to fi le a complaint with the OCRC in addition to or instead of a lawsuit, you must do so within six months of the time you become aware that the employer has discriminated against you. Like the federal EEOC, the state OCRC can accept, and should accept, your complaint after the six-month deadline in certain situations. To be certain to preserve your right to fi le a complaint, LRS recommends that you fi le your OCRC complaint within the six-month time period. 12 Employment Discrimination

13 Like the federal EEOC, the state OCRC will review and investigate your complaint. Before the investigation starts, the investigator will ask you and the employer if you wish to use mediation to try to resolve your complaint. If either of you refuse, or if you and the employer do not reach an agreement, the OCRC investigation will continue. If the OCRC investigator fi nds probable cause to believe that the employer violated laws which prohibit employment discrimination, the OCRC will again try to assist you and the employer to reach an agreement to settle your complaint through mediation. Probable cause is a standard that OCRC applies to decide whether to pursue or to dismiss a complaint against an employer. An OCRC determination of probable cause means that the investigator found facts strong enough for OCRC to believe that the employer probably violated laws which prohibit employment discrimination. If you reach an agreement with the employer during the OCRC investigation or after the investigation is completed, your part of the settlement agreement will be to withdraw your OCRC complaint and probably to give up your right to sue the employer in court. LRS recommends that you consult a lawyer to help you decide whether to accept a settlement agreement, modify its language, or to proceed with your complaint. You are not required to participate in OCRC mediation. The decision whether or not to participate in mediation is yours. LRS experience is that the mediation process can often help you understand the strength of the employer s case and what evidence the employer might use against you during the investigation or at a hearing. The decision whether or not to accept a settlement is yours but OCRC has the power to reach a settlement with the employer without your agreement. Rights and Remedies 13

14 If the OCRC fi nds probable cause to believe that the employer violated laws which prohibit employment discrimination, the OCRC will issue its own complaint against the employer. At this point, the OCRC will be represented by a lawyer from the Attorney General s offi ce. This lawyer may again try to settle the case, and has the authority to reach an agreement with the employer to settle it without your consent. If a settlement is not reached, OCRC will present its own complaint against the employer during a formal hearing, either before an administrative law judge or before an OCRC commissioner. A hearing is not a trial in court, and the rules of evidence which apply to court trials do not apply to hearings. However, you have the right to submit written and oral arguments to support your complaint, and you have the right to question witnesses at the hearing. The employer will probably be represented by their own lawyers at the hearing. LRS recommends that you consult and be represented at the hearing by a lawyer as well. After the hearing, the presiding administrative law judge or OCRC commissioner will make recommendations to the OCRC about whether the employer violated laws which prohibit employment discrimination. This process can take as long as two years after the hearing is concluded. The OCRC will issue a fi nal order based on these recommendations. The OCRC's fi nal order may require the employer to remedy the harm done to you in a variety of ways (see Remedies on page 18). The OCRC s order is legally binding. Like the federal EEOC, the state OCRC may fi nd no probable cause to believe that the employer violated laws which prohibit employment discrimination. OCRC may dismiss your complaint at any time during the complaint process. You will be notifi ed of the dismissal in writing. When you receive notice of the dismissal, you have the following options: Request reconsideration by OCRC. Your request must be in writing, and must be received by OCRC within ten days of the date on the dismissal letter. You can request to present your case to the OCRC commissioners. Request a review by EEOC, if your charge has been dual-fi led with EEOC. Your request must be in writing, and must be received by the EEOC offi ce within fi fteen days of the date on the dismissal letter. Some courts have held that you must receive a right-to-sue notice from the EEOC to fi le a complaint based on federal law, such as the Americans with Disabilities Act. Appeal to the Court of Common Pleas for a review of OCRC s decision. The court will be limited to determining whether OCRC s decision was arbitrary, and you must follow the procedures set forth in Ohio Revised Code Chapter 119, which includes provisions for when and where to fi le your appeal. LRS recommends that you consult an attorney familiar with these procedures. File a lawsuit in court. You may fi le a lawsuit based on state law claims in a state court. (See pages 7 and 17 for more information.) Some courts have held that you cannot fi le a lawsuit based on federal law claims, including the Americans with Disabilities Act, in federal court unless you have received a right-to-sue notice from the federal EEOC. You can fi nd the common pleas court in your area on the website of the Ohio Supreme Court at Courts/, or your can call the Ohio Supreme Court directly, Employment Discrimination

15 Listed below is contact information for OCRC regional offi ces and the counties each offi ce serves. The OCRC Central Offi ce contact information is: 30 East Broad Street, 5th Floor Columbus, Ohio 43215, ; , OCRC Akron Regional Offi ce Akron Government Center 161 South High Street, Suite 205 Akron, Ohio TEL TTY Wayne, Summit, Stark, Portage, Trumbull, Mahoning, Columbiana, Knox, Holmes, Coshocton, Tuscarawas, Carroll, Jefferson, Harrison OCRC Cleveland Regional Offi ce Frank Lausche Building 615 West Superior Avenue, Suite 885 Cleveland, Ohio TEL TTY Lorain, Cuyahoga, Lake, Geauga, Ashtabula, Erie, Huron, Richland, Medina, Ashland OCRC Columbus Regional Offi ce 30 East Broad Street, 4th Floor Columbus, Ohio TEL TTY Franklin, Union, Madison, Delaware, Pickaway, Licking, Fairfi eld, Hocking, Muskingum, Perry, Athens, Morgan, Guernsey, Noble, Washington, Ross, Belmont, Monroe, Marion, Morrow OCRC Dayton Regional Offi ce 40 West 4th Street, Suite 1900 Dayton, Ohio TEL TTY Butler, Hamilton, Clermont, Clinton, Warren, Brown, Fayette, Highland, Adams, Pike, Scioto, Vinton, Darke, Jackson, Lawrence, Gallia, Meigs, Preble, Shelby, Miami, Montgomery, Logan, Champaign, Clark, Greene, Van Wert, Mercer, Allen, Auglaize, Hardin OCRC Toledo Regional Offi ce One Government Center, Suite 936 Jackson and Erie Streets Toledo, Ohio TEL TTY Williams, Defi ance, Paulding, Fulton, Henry, Putnam, Lucas, Wood, Hancock, Ottawa, Sandusky, Seneca, Wyandot, Crawford Rights and Remedies 15

16 Lawsuits in State and Federal Court Most employment discrimination disputes are resolved through informal methods and by complaints to government agencies such as the federal EEOC and the state OCRC. Lawsuits can have very high monetary and emotional costs and can take years to conclude. LRS places high value in advocacy, negotiation, mediation and federal and state agency complaint processes to resolve disputes, whenever clients' legal rights may be asserted and protected in those ways. Nevertheless, sometimes disputes must be resolved, and legal rights protected, by lawsuits in court. Laws which prohibit employment discrimination do not require you to be represented by a lawyer in court. However, employment laws and court procedures are very complicated, and the employer will probably be advised and represented by a lawyer. If you decide to sue the employer, LRS recommends that you consult a lawyer as well. Federal Most federal laws which prohibit employment discrimination require you fi le a complaint with the federal EEOC before you may fi le a lawsuit in court. When the EEOC completes its investigation and issues you a right-to-sue letter, you may fi le a lawsuit in court against the employer within 90 days of your receipt of the right-to-sue letter. If the EEOC investigation establishes that the employer violated the law, the EEOC may decide to sue the employer directly in a federal court. The EEOC may also decide to join you in your private lawsuit. However, the EEOC's lawyers will represent the EEOC only and will not represent you in either a direct or a joint lawsuit against the employer. The EEOC will recommend, and LRS also recommends, that you consult a lawyer to protect your rights if your EEOC complaint advances to court. The EEOC is not required to sue the employer in court at all, even if the EEOC investigation fi nds that the employer violated the law. EEOC fi les lawsuits in a small percentage of complaints fi led. If the EEOC decides not to sue, it will close the case, and you may fi le your own lawsuit against the employer within 90 days of your receipt of the right-to-sue letter. You have the right to ask the EEOC for a right-to-sue letter before the EEOC completes its investigation. If your complaint is against a private, non-government employer, you may ask the EEOC to issue you a right-to-sue letter 180 days after you fi le your complaint. You may then fi le a lawsuit in court within 90 days after you receive the EEOC s right-to-sue letter. 16 Employment Discrimination

17 EEOC received 95,402 complaints during fi scal year Of these complaints, 19,453 (20.4%) claimed disability discrimination. In the same year, EEOC fi led or joined 325 lawsuits, fewer than one-half of one percent of the number of complaints fi led during that year. Only 37 of the EEOC s lawsuits consisted of ADA claims. Source: EEOC website at litigation.cfm and charges.cfm State Ohio s state laws which prohibit employment discrimination do not require you to fi le a complaint with government agencies before you fi le a lawsuit in court. If you decide to fi le a lawsuit, you may fi le a lawsuit in state court directly. If your lawsuit is against a state government employer and you are seeking damages, you must fi le your lawsuit in the Ohio Court of Claims within 2 years of the time you become aware that the employer discriminated against you. If your lawsuit is against a state government employer and you are only seeking injunctive or declaratory relief, you may follow the procedures described below for fi ling a lawsuit against a private or non-state government employer. If your lawsuit is against a private or non-state government employer, you must fi le your lawsuit in a Court of Common Pleas within 6 years of the time you become aware that the employer discriminated against you. You can fi nd the common pleas court in your area on the website of the Ohio Supreme Court at or your can call the Ohio Supreme Court directly, Rights and Remedies 17

18 Remedies Remedies are ways to repair the harm done to you when the employer has violated employment laws and has discriminated against you because you have a disability. A variety of remedies are available according to state and federal laws which prohibit employment discrimination. The employer may agree to provide some of these remedies as the result of informal methods such as advocacy, negotiation and mediation. Or the employer may be ordered by the government agency or by the court to provide some of these remedies, as the result of your complaint or lawsuit. In general, these remedies may include orders requiring the employer to: hire, reinstate or promote you; provide you reasonable accommodation for your disability; give you back pay since the act of discrimination; give you front pay beginning on a specifi c date; pay costs of your lawsuit, such as attorney, witness and court fees; compensate you for mental anguish and inconvenience; pay punitive damages as punishment for an employer s malicious or reckless acts; post public notices about the employer s violation and employees legal rights; take action to prevent further discrimination. 18 Employment Discrimination

19 Frequently Asked Questions This booklet briefl y summarized employment rights protection and remedies for people with disabilities. You may have other rights under a collective bargaining agreement, under a written contract, or under an implied or spoken contract with the employer. LRS recommends that you consult a union representative and lawyer about your rights under particular agreements. Following is a list of frequently asked questions about employment rights and discrimination. Each specifi c case of employment discrimination must be evaluated according to its own facts and the laws which apply. This booklet and the list of questions and answers do not take the place of legal advice for any specifi c case of employment discrimination. For advice about your specifi c case, LRS recommends that you consult a lawyer. Q1. Can the employer refuse to hire me if I have a disability? Ohio is an employment-at-will state, which allows the employer to hire, to fi re and to refuse to hire for almost any reason. However, if you are qualifi ed to perform the essential functions of the job, the employer may not refuse to hire you only because you have a disability. Q2. Is the employer required to hire me because I have a disability? Just as the employer may not refuse to hire you only because you have a disability, the employer is not required to hire you only because you have a disability. You must be able to perform the essential functions of the job, either with or without reasonable accommodation for your disability that will allow you to perform the job. Q3. What is reasonable accommodation? Reasonable accommodation is a modifi cation or an adjustment to a job or work environment that will enable a qualifi ed applicant or employee with a disability to participate in the application process and to perform essential job functions. Reasonable accommodation includes changes in the employer s policies or procedures and other modifi cations to assure equal employment opportunities for people with disabilities. Rights and Remedies 19

20 Q4. What are examples of reasonable accommodation? Examples of reasonable accommodation include adapting a work station; providing a quiet work space; purchasing adapted equipment; modifying existing equipment; restructuring a job description; modifying a work schedule; and reassigning to another, vacant position which you are qualifi ed to fi ll. Employee reassignment and some other accommodations may be subject to a seniority policy or a collective bargaining agreement. If the employer s workers are unionized, LRS recommends that you consult the union representative. LRS recommends that you consult a lawyer. Q5. Must the employer make reasonable accommodation for my disability? The employer must make reasonable accommodation for your disability in the work place and work duties to enable you to perform the essential functions of the job. However, the employer is only required to make reasonable accommodation if the employer knows that you need reasonable accommodation. Q6. May the employer ask about my disability when I apply for employment? The employer may not ask any questions about your disability on job applications or during job interviews. The employer must defi ne the essential functions and conditions of the job and then ask the applicant about his or her qualifi cations to perform the job. The employer may ask questions about job history, gaps in employment and other disability-neutral questions. Q7. Will I lose my right to reasonable accommodation if I do not tell the employer about my disability during the hiring process? You have the right to reasonable accommodation for your disability at any time you choose to ask. You may tell the employer about your disability after many years on the job, and you will have the right to reasonable accommodation at that time. Q8. Does the employer have the right to require documentation of my disability when I ask for reasonable accommodation? Once you are hired and begin the job, the employer may ask you questions that are related to the job and necessary to conduct business. When you ask for reasonable accommodation, the employer may require information to establish your disability and your need for reasonable accommodation. 20 Employment Discrimination

21 Q9. May the employer require me to have a medical examination? The employer may not require a medical examination during the application and hiring process. After offering you the job, the employer may require a medical examination, but only the same medical examination required of every new-hire in the same job category. After the employer makes you a conditional job offer, there are no limits on inquiries about your disability. However, the employer may only withdraw a job offer if you cannot perform the essential functions of the job, with reasonable accommodation if necessary. Q10. Are there accommodations the employer is not required to provide? The employer must make only "reasonable" accommodation for your disability. The employer is not required to make accommodation that will lower quality or quantity standards. The employer is not required to provide personal use items such as glasses or hearing aids or to create a new job position for you if you are not qualifi ed for the position applied for. Q11. When is an accommodation not reasonable? An accommodation is beyond "reasonable" if it would impose "undue hardship" on the business. Reasonableness and undue hardship depend upon the nature and cost of the accommodation in relation to the nature, size, resources and structure of the employer's business. What may be an undue hardship for one employer to provide may be a reasonable accommodation for another employer to provide. In general, a large business would be required to make greater effort or spend more money to accommodate your disability than a small business. Q12. Must the employer provide reasonable accommodation in attendance? Regular and predictable attendance is commonly viewed as a minimum standard of performance, although the employer may be required to tolerate some additional absences for your treatment needs, such as short-term hospitalization. The Family and Medical Leave Act (FMLA) and state workers compensation laws provide additional rights or restrictions on job leave and absences. Q13. Which employers are covered by the ADA? The Americans with Disabilities Act (ADA) covers private employers, state and local government employers, employment agencies and labor unions with 15 or more employees. Federal employees and employees of federal contractors may be covered under a different law, the Rehabilitation Act of The Rehabilitation Act has different requirements, including a 45 day time limit for fi ling complaints about rights violations. Q14. What employment activities are covered by the ADA? The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, fi ring, advancement, compensation, training, and other terms, conditions and privileges of employment. The ADA applies to recruitment, advertising, tenure, layoff, leave, fringe benefi ts and all other employment-related activities. Rights and Remedies 21

22 Q15. Do I have rights as a person with a disability under the ADA? The ADA protects the employment rights of qualifi ed individuals with disabilities. The ADA defi nes individual with a disability in two parts, both of which must be true. (1) You must have a physical or mental impairment, which may include mental illnesses, and (2) your impairment must result in a substantial limitation in one or more major life activities, such as thinking, learning, working, standing, reaching or caring for yourself. In addition, you must be qualifi ed, which means that you can perform the essential functions of the job, with or without a reasonable accommodation. Q16. Is my psychiatric condition covered by the ADA? As long as your psychiatric condition meets the ADA s two-part defi nition of disability, you are a qualifi ed individual with a disability with employment protections under the ADA. Not all psychiatric conditions are covered by the ADA because they are not judged to substantially limit major life activities. For example, psychiatric conditions which last only a short time or cause only minor limitations in functioning would not be covered by the ADA as disabilities. Q17. Does the ADA include drug addiction as a protected disability? People who use controlled substances illegally, even a prescribed drug without the required supervision of a licensed health care professional, are not considered by the ADA to have a disability. However, the ADA protects people who are currently in or have completed a supervised drug rehabilitation program and no longer use drugs illegally. Q18. Which conditions are not considered disabilities by the ADA? The ADA does not include as a disability gay, lesbian and bisexual orientations; sexual compulsions and disorders; compulsive gambling; kleptomania; pyromania; and psychoactive disorders that result from current illegal use of drugs. The ADA includes alcoholism among covered disabilities, but excludes drinking or alcohol impairment while working. Conditions which pose a direct threat to health and safety may be covered disabilities, if the threat can be eliminated by reasonable accommodation. Q19. May the employer discriminate if people believe my condition is dangerous? Employment practices based on stereotype and unfounded assumptions about disability are illegal. The employer s judgment that your condition is dangerous must be based on medical judgment and objective evidence. The employer must consider duration of the risk, nature and severity of the potential harm, likelihood that harm will occur and imminence of the harm. Q20. Does the ADA protect me if I have no disability but I am associated with someone who does? The ADA prohibits employment discrimination based on your relationship or association (not necessarily family relation) with a person with a disability. The law protects you from employment discrimination based on biased assumptions that your relationship or association with a person with a disability would necessarily affect your job performance. 22 Employment Discrimination

23 Q21. Does the ADA protect my confidentiality? Any information about your disability must be stored on separate forms and treated as a confi dential medical record. The record must be stored separately from other personnel fi les and accessible only to designated staff persons. Q22. Are there exceptions to ADA confidentiality protections? There are fi ve exceptions to the confi dentiality requirements: 1. Supervisors and managers may be informed about necessary work restrictions and other accommodations. 2. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment, or if any special procedures are required in case of fi re or other evacuations. 3. Government offi cials should be provided access to information when investigating disability anti-discrimination compliance. 4. Relevant information may be provided to workers compensation offi ces. 5. Relevant information may be provided to insurance companies when the company requires a medical examination to provide health or life insurance to employees. The information should not be shared with anyone else without the explicit consent of the person with a disability. Q23. Can the employer discipline me for behaviors or conduct that is related to my disability? The answer to this question will depend on the facts of the situation, but you are not protected by the law until you tell your employer that you have a disability and ask for a reasonable accommodation. If you are disciplined and it is related to your disability but you did not tell the employer about your disability, the employer can legally discipline you. Rights and Remedies 23

24 Legal Rights Service 50 West Broad Street, Suite 1400 Columbus, Ohio / in Ohio TTY Legal Rights Service All Rights Reserved Funding LRS is funded by grants from: Client Assistance Program (CAP) - Rehabilitation Act of 1973 (PL ) as amended; Offi ce of Special Education and Rehabilitative Services of the United States Department of Education. Protection & Advocacy for Individuals with Developmental Disabilities (PADD) - Developmental Disabilities Assistance and Bill of Rights Act of 1975 (PL ); Administration for Developmental Disabilities of the United States Department of Health and Human Services. Protection & Advocacy for Assistive Technology (PAAT) - Assistive Technology Act of 1998 (PL ); Offi ce of Special Education and Rehabilitative Services of the United States Department of Education. Protection & Advocacy for Individuals with Mental Illness (PAIMI) - Protection and Advocacy for Individuals with Mental Illness Act of 1986 (PL ); Center for Mental Health Services United States Department of Health and Human Services. Protection & Advocacy for Benefi ciaries of Social Security (PABSS) - Ticket to Work and Work Incentives Improvement Act of 1999 (PL ). Work Incentives Planning and Assistance (WIPA) program - Offi ce of Employment Support Programs Social Security Administration. Protection & Advocacy for Individual Rights (PAIR) - Rehabilitation Act of 1973 (PL ) as amended; Offi ce of Special Education and Rehabilitative Services of the United States Department of Education. Protection & Advocacy for Individuals with Traumatic Brain Injury (PATBI) - Children s Health Act of 2000 (PL ); Maternal Child and Health Bureau of the United States Department of Health and Human Services. Protection & Advocacy for Voting Access (PAVA) - Help America Vote Act of 2002 (PL ); Administration for Children and Families of the United States Department of Health and Human Services. And also funding from the State of Ohio General Revenue Fund. 24 Employment Discrimination