ADA/Disability Discrimination

Disability discrimination involves differential treatment or harassment of an employee on the basis of their disability or a disability they are seen as having.  Disability discrimination can occur if an employee is seen as having a certain disability or if their disability does not show in the way people might expect.

The ADA requires businesses to work with employees in an “interactive process” to reach “reasonable accommodations.” This means that your employer has to take steps to communicate with you to figure out a way to accommodate your disability and allow you to work that does not harm the business.  This does not mean that you can be entitled to any kind of accommodation. There may be situations where a disability is too severe for the employer to accommodate it in a way that allows you to continue working.  However, if what you are requesting is reasonable, your employer is required to work with you to implement in.

Some common examples of accommodations that are often found to be reasonable include providing a chair or purchasing a chair with better back support, providing software that reads text aloud or can magnify text, providing a TTC telephone, allowing more frequent short breaks, allowing an employee to carry a bottle of water and permitting a flexible schedule to accommodate doctor’s visits.

While workplace discrimination usually occurs between an employer and employee, employees with levels of seniority (superior and subordinate), or co-workers, in some instances an employee can experience dsability discrimination by a client or vendor, particularly if an employer knows about the discrimination and has not taken action to prevent it from recurring.

There are many forms of discrimination. It can be different, less favorable treatment at any stage in the employment process, including help-wanted ads, interviews, pre-employment testing, hiring, job assignments, shift assignments, promotions, compensation, benefits, job training, layoffs or termination.

This kind of discrimination may be very direct, such as when an employee is not hired or is fired because of disability or preconceived ideas about a person’s ability based on a disability. It can also be more subtle, such as an employer’s policy that inherently discriminates against members of a certain disability without a real business need. For example, if the employer requires all employees to be able to lift a certain weight, disabled people may be negatively impacted by this rule. For an employer to legally maintain such a policy, the weight-lifting requirement must be clearly related to the legitimate demands of that particular job.

Disability discrimination may come from supervisors, co-workers or in limited circumstances from other individuals, such as vendors or clients. If your employer is creating or allowing an intimidating, hostile or offensive work environment to exist, these practices are also against the law.

Discrimination can also be harassment experienced by an employee because of their disability or traits that are seen of being due to their disability. Harassment can include “jokes” or comments about a particular condition or disability, derogatory comments about an employee’s disability, hostile comments or actions toward the employee based on his disability, or any other action that creates an intimidating, hostile, or offensive work environment, or interferes with the employee’s work performance. To be considered discrimination, harassing actions must be “severe and pervasive.” In other words, an isolated incident or “offhand teasing” would probably not be enough for a lawsuit.

It is illegal for an employer to take any adverse or punitive actions against an employee for complaining about disability discrimination or other employment law violations. “Adverse actions” include termination, demotion, discipline, reduction of pay, or any other actions that would cause the average person to avoid making such a complaint. Adverse actions may occur outside the context of work and include threats, including threats of deportation or reporting a person to government authorities.

It is important to note that the discrimination does not have to be proven for the complaining employee to be protected against retaliation. In other words, if an employee makes a complaint about disability discrimination and is fired a few days later, the employer may be liable for retaliation even if no court or government agency finds that the underlying disability discrimination actually occurred.