Disability Discrimination
Federal and Texas Law
The Federal Americans with Disabilities Act (ADA) is the Federal Law that makes it illegal for employers to discriminate on the basis of a disability.
It makes it illegal for an employer to discriminate against a qualified individual with a disability in job application procedures; the hiring, advancement, or discharge of employees; employee compensation; job training; or other terms, conditions, and privileges of employment, because of the individual's disability. Texas also protects disabled workers with the Texas Fair Employment and Housing Act (TFEHA).
Qualified Individual with a Disability
For the employee to be eligible to make a claim of disability discrimination under the ADA or TFEHA, they must be a "qualified individual with a disability." Meaning they must be able to do the job. For instance, a person with no hands would not be qualified to be a typist. (However, see below discussion on "reasonable accommodation"). If the employer did not give him the job, it wouldn't be discrimination. It's just that the person simply isn't qualified.
"With a disability" means that the worker is actually disabled. For an injury, disease, or their ailment to be a "disability" under the law, it must "substantially limit one or more major life activities." A mere annoyance is not enough. The disability must actually interfere with a person's life.
In determining whether or not a person actually has a disability, the Courts pay close attention to whether or not the ailment affects the person's job and ability to earn a living. Even if the disability does not affect most areas of life, if it affects the person's employment, it is more likely to be considered a disability.
Perceived Disability
It is also unlawful to discriminate against a person who is perceived to have a disability. If the employee is not disabled but the employer believes the employee is disabled and discriminates against the employee that is illegal.
In this circumstance, it is not necessary to determine if the employee is a "qualified individual" with a disability. The Court, however, may consider whether or not the person would have been a qualified individual if he actually had the disability that the employer perceived him to have. The law is not entirely clear on this issue.
Reasonable Accommodation for an Employee with a Disability
Reasonable Accommodation is the idea that even if a person is disabled and even if that disability may make it seem like they cannot do a job, the employer must consider whether or not a "reasonable accommodation" can be made. A "reasonable accommodation" is when the employer modifies the job duties, provides some extra help, or takes some other measure to ensure that the person can still be able to do the job.
For example: If a person in a wheelchair wants a job in an office that is on the second floor and there are no elevators in the building, then the employer could install an elevator as an accommodation. However, it is probably not reasonable to expect the employer to spend money to install an elevator.
Another possibility might be that the potential employee's job is really just talking on the telephone, selling products. Maybe the job can be done from home and there is no need to even be in the office. It could be reasonable to ask an employer to let the person work at home.
To qualify for a reasonable accommodation employees have to ask for the employer for an accommodation. Once they do, the employer has the right to consider the requests and make counter-offers that the employer might see as more reasonable. If the employer and employee cannot agree, then the employee might want to consider bringing suit. To win a suit the judge or jury will have to find that the employee's request was reasonable, or that the employer's counter- offers were not sufficient.
Thering McCarley
