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When actions can result in discrimination

May 24, 2013

Article courtesy of SBAM Approved Partner AdvanceHR

You and your managers may not believe you ever discriminate against disabled applicants and employees. But there sometimes are subtle and unintentional actions that can result in illegal discrimination against protected individuals. For examples, read on.

You hired a disabled veteran. You’re giving extra time-off to an employee who needs chemotherapy. You feel you’re doing everything you can to make “reasonable accommodations” for your employees protected under the Americans With Disabilities Act (ADA) and similar state laws.

You may need to examine more than your hiring practices and benefits. Look at your everyday actions and the everyday actions of your managers and supervisors. Discrimination against the disabled can be subtle and unintentional.

Examples of subtle and unintentional actions that might illegally discriminate:

  • You decide not to promote a capable employee to a position as manager because the employee had a “nervous breakdown.” You feel it would be too “nerve-racking” for the employee.
  • You had a training session for your employees at a local restaurant. The restaurant wasn’t wheelchair-accessible, so your wheelchair-bound employee couldn’t attend the session.

You may not think you’re discriminating but under the ADA you could be. Familiarize yourself with these five areas where unintentional discrimination is likely to occur.

  1. Employment conditions and opportunities. If an applicant or employee with a disability is equally as qualified as applicants or employees without disabilities you cannot automatically refuse to hire or promote them because of the cost of the reasonable accommodation. The added cost may be considered reasonable under ADA.
  2. Restricting employment opportunities based on stereotypes or myths about a disability. You cannot limit the duties of a person with disabilities based on what you believe is best for that person.
  3. Segregation. Employees with a disability cannot be separated from other employees. For example, if you have a disabled employee working on the first floor and the break room is on the second floor, you should establish a comparable break room on the first floor. Then the disabled employee can break with the other employees on the first floor.
  4. Contracts with other companies. Other companies you use for training sessions or workshops must be accessible to disabled employees.
  5. Employment tests. These tests must measure skills or abilities needed to perform the essential functions of a job. If an applicant has a disability that prevents test-taking, you must attempt to provide an accommodation that will allow the applicant to take the test.

Note: When considering if an applicant or an employee is protected by the ADA, keep in mind how broadly the ADA defines disability and major life activity.

The ADA (as amended by the 2008 ADA Amendments Act) broadly defines disability to include – not just a current, obvious disability – but also an “impairment that is episodic or in remission… if it would substantially limit a major life activity when active.” The term disability also extends to persons regarded as having such an impairment. An applicant or employee is regarded as having such an impairment if the “individual establishes that he or she has been subjected to an action prohibited under this Act [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

The amended ADA defines major life activities broadly to include such activities as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, learning, reading, reaching, interacting with others. Major life activities also include such major bodily functions as breathing, immune system function, digestive and bowel function, and bladder, musculoskeletal, and brain functions.

Examples of disabilities covered under the expanded disability and major life activities definitions include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.

ADA obligations apply to private employers with 15 or more employees. Covered employers need to train supervisors to broadly extend ADA protection to applicants and employees. Individuals must be evaluated according to their qualifications, not their disabilities.

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