Font size: bigger | smaller

Disability Discrimination in Employment

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

The Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) is broad legislation designed to integrate people with disabilities into the mainstream of all aspects of society. The ADA is divided into five sections, called ”titles.“ Title I covers employment. Titles II, III, IV and V cover public services, public accommodations, telecommunications, and miscellaneous provisions.

The ADA's protection applies to people with disabilities. The ADA explicitly includes people with mental disabilities, including individuals with psychiatric impairments.

Title I of the ADA prohibits private employers with at least 15 employees, religious entities with at least 15 employees, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Federal sector employees are covered by the Rehabilitation Act, 29 U.S.C. sections 794 et seq., which has been amended to parallel the ADA.

To discriminate on the basis of disability means to treat a person with a disability differently and adversely from other people who do not have a disability. A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.

Congress passed the Americans with Disabilities Amendments Act of 2008 (ADAAA) (Pub. L. 110-325) specifically to overturn a series of Supreme Court decisions that made it difficult to prove an impairment is a “disability.” The ADAAA made significant changes to the definition of “disability” so that the ADA’s protection should now apply to a much larger number of people.

Under the ADA, a person with a disability:

  1. Has a physical or mental impairment that substantially limits one or more major life activities; or
  2. Has a record of such an impairment; or
  3. Is regarded as having such an impairment.

The ADAAA did not define “substantially limits” but it did specifically reject the Supreme Court’s rigid and limited definition. A better understanding of “substantially limits” will emerge over time.

The ADAAA greatly broadened the definition of “major life activities” to include “major bodily functions.” As of January 01, 2009, these definitions apply:

Major life activities include, but are not limited to, use of the five senses, caring for oneself, interaction with others, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Bodily Functions include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The ADAAA redefines and expands coverage under the “regarded as” prong of the definition of “disability.” To satisfy the “regarded as” standard an individual need only show that he or she was subjected to an action prohibited under the statute (e.g., termination; failure to hire) because of an actual or perceived impairment. It is no longer necessary that the impairment be perceived by the employer to limit or “substantially limit” a major life activity.

Before the ADAAA, “mitigation measures” that increase the functioning of a person with an impairment were considered in determining whether a person met the definition of “person with a disability.” In other words, the determination of whether a person was substantially limited was made after the person received the benefit of the mitigating measure. For example, if a person with diabetes controlled his or her diabetes with Insulin, that person may not have been considered as having an impairment, because the Insulin removed the limitations which were present before the medication.

Now, after the ADAAA, the determination must be made regardless of the mitigating measures; that is, before those measures are used or applied.

Additional protections of the ADA

Under the ADA it is unlawful to retaliate against an individual for opposing disability discrimination in employment, or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

The ADA also protects other individuals in certain circumstances, including family members who are associated with a person with a disability.

Importantly, the ADA requires covered employers to make reasonable accommodation to the known physical or mental limitations of qualified individuals with disabilities, unless it results in undue hardship. Undue hardship is defined as something requiring significant difficulty or expense with respect to the employer's size, financial resources, and the nature of its operations.

Reasonable accommodation may include making existing facilities readily accessible; job restructuring; modifying work schedules; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; providing qualified readers or interpreters; and more.

The ADA also requires covered employers to provide qualified individuals with disabilities with equal access to all employmentrelated opportunities. This includes medical insurance, social activities, vending machines, rest rooms, and more.

In addition, the ADA limits the disability-related questions an employer can ask a job applicant before a job offer is made. Employers may not ask about the existence, nature, or severity of a disability, but can ask applicants about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of current employees must be job related and consistent with the employer's business needs.

Although an employer may not discriminate on the basis of disability, if an applicant or employee poses a direct threat to the health or safety of him or herself, or of others, an employer may treat that individual differently due to the direct threat. An employer’s direct threat defense requires proof there is significant risk of substantial harm which cannot be reduced or eliminated by reasonable accommodation. An employer’s stereotyped assumption that people with disabilities are more prone to harm is not an excuse for discrimination.

To pursue a case under the ADA, a person must file a claim with the U. S. Equal Employment Opportunity Commission (EEOC) within 180 days of the date of discrimination or failure to accommodate, or within 300 days if in a state with a fair employment practices agency. A person cannot file a lawsuit until the EEOC has had the opportunity to investigate and resolve the claim, and issues a right-to-sue letter.

Claims of disability discrimination in employment may be filed at any EEOC field office. For the appropriate EEOC field office, call the EEOC at (800) 669-4000 (voice) or (800) 669-6820 (TTY).

Many states have laws that are similar to the ADA or are more favorable to people with disabilities. California and some other states provide more generous remedies, a longer time to file the claim, easier procedures, and more.

Contact Us

Spencer Johnson McCammon LLP
2727 Camino del Rio South
Suite 140
San Diego, CA 92108
Phone: (619) 233-1313

Spencer Johnson McCammon Weekly

Spencer Johnson McCammon Weekly

Topic of the Week

Mass Layoffs

The Worker Adjustment and Retraining Notification (WARN) Act offers some protection to workers, their families and communities against plant closings and/or mass layoffs, by requiring employers to give their workers sixty days notice before a plant closin


Blog of the Week

Pelosi brokers deal with liberals on drug pricing bill

House Democratic leadership on Tuesday clinched a deal to win progressive leaders’ support for a sweeping drug pricing bill that could clear its path for passage in the full House on Thursday.

Thought for the Week

"When a company navigates through layoffs, it must be mindful of its current employees. Past research has shown that layoffs and termination can cause stress-related illnesses such as burnout, which was more than twice as high to companies that had downsized compared to those who didn’t. For prospective workers, nearly half of workers said hearing about the company announcing layoffs would make them leave the recruiting process. Leaders are in a unique position during these dark times. They can easily set the tone for a company moving forward."

–Kyle Schnitzer; reporter for Ladders

List of the Week

from Paid Leave For All

Paid Leave For All

  • 19% of U.S. workers have access to paid family leave through an employer and only 40 percent have access to short-term disability insurance. 
  • Nearly 1 in 4 employed mothers return to work within two weeks of giving birth.
  • One in 5 retirees leave the workforce earlier than planned to care for an ill family member. 
  • 84% of voters support a comprehensive paid family and medical leave policy that covers all working people.

Top Five News Headlines

  1. Protecting Internet Communication Privacy in the Workplace
  2. More workers to qualify for overtime under new state rules
  3. Why is Fox News being sued again over alleged sexual harassment?
  4. Her boss has made her work all major holidays for the past 12 years
  5. Labor Department Issues Final Rule on Calculating 'Regular Rate' of Pay