Disability Laws - Know Your Employment Rights

disability rights

This page is for general informational purposes only and should not be considered legal advice. Your situation may not fit the claim you think it would, but it may fit another. Only an attorney with comprehensive knowledge of employment law can tell you whether you have a claim. You should always consult with an attorney before taking or refraining from taking any action in your individual situation.

Your disability rights

What are my rights under the Americans with Disabilities Act (ADA) in the employment context?

The ADA and its Michigan counterpart, the Michigan Persons with Disabilities Civil Rights Act (PWDCRA) prohibit a covered employer from discriminating against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

The ADA and PWDCRA also require an employer to makes reasonable accommodations for a qualified person’s disability unless it can demonstrate that the accommodation would impose an indue hardship on the operation of its business. If a disabled employee requests an accommodation, the employer must engage in an interactive process to determine whether the employer can make a reasonable accommodation.

Does my employer have to comply with the ADA (Is my employer covered by the ADA)?

Most likely. The ADA covers all employers, including state and local government employees, with 15 or more employees. However, the Michigan Persons with Disabilities Civil Rights Act (PWDCRA), with limited exceptions, covers all employers. Therefore, even if your employer is not covered by the ADA because it has fewer than 15 employees, it is likely covered by the PWDCRA, which provides for many of the same rights. Employers in Michigan with 15 or more employees are subject to both the ADA and the PWDCRA, and must comply with whichever law is strictest.

Does my condition qualify as a disability?

The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such impairment, or being regarded as having such an impairment.

What is a physical impairment under the ADA mean?

A physical impairment under the ADA includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.

Examples of physical impairments include:

The inability to use limbs
Blindness
Deafness
Multiple sclerosis
Muscular dystrophy
Epilepsy
Cancer

What is a mental impairment under the ADA?

A mental impairment under the ADA includes intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. However, alcoholism and current mental impairments caused by drug use are not covered by the ADA or PWDCRA.

Examples of mental impairments include:

Intellectual disabilities
Major depressive disorder
Bipolar disorder
Schizophrenia
Post-traumatic stress disorder

What does “major life activities” mean under the ADA?

Major life activities under the ADA include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities under the ADA also include operation of major bodily functions, including function of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

What does “substantially limits” mean under the ADA?

Substantially limits under the ADA does not mean the complete inability to perform, but rather means substantially restricts. Moreover, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity.

What types of discriminatory actions are prohibited by the ADA?

The ADA prohibits employers from discriminating against an employee because of disability, or because the employer perceives the employee to have a disability, in many aspects of employment, including:

Recruitment
Firing
Hiring
Training
Job assignments
Promotions
Pay
Benefits
Lay offs
Leave
Harassment
Retaliation for asserting rights under the ADA

What is a reasonable accommodation under the ADA?

A reasonable accommodation under the ADA is a change or adjustment to a job or work environment that permits a disabled employee to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment. Examples of reasonable accommodations under the ADA may include:

Providing or modifying equipment or devices;
Job restructuring;
Part-time or modified work schedules;
Reassignment to a vacant position;
Adjusting or modifying examination, training materials, or policies;
Providing readers and interpreters; and
Making the workplace readily accessible to and usable by people with disabilities.

Does my employer have to provide an accommodation for my disability under the ADA?

Not necessarily. The employer must engage in an interactive process to determine whether the employer can accommodate the disabled employee to allow the employee to perform the essential functions of the job.

However, if the employer decides that the accommodations required would require significant difficulty or expense, the accommodation may be denied as an undue hardship. These situations often give rise to failure to accommodate disability claims, discussed below, as disputes about whether the employer would suffer an undue hardship often arise.

What constitutes an undue hardship on the employer under the ADA?

Whether an ADA accommodation would impose an undue hardship on the employer, and thus not be a reasonable accommodation, is highly subjective and therefore often litigated. However, the ADA defines undue hardship as significant difficulty or expense, considering:

The nature and cost of the accommodation needed under the ADA
The overall financial resources of the facility involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility
The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographical separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

What are the ADA requirements for an interactive process to determine if a reasonable accommodation can be made?

The ADA simply requires the employer engage in an interactive process to determine whether the disability can be accommodated after an employee requests an accommodation. The ADA does not specify exactly what the employer must do to engage in an interactive process, but the EEOC has issued guidance.

When an individual with a disability requests an accommodation, the employer should:

Analyze the particular job involved and determine its purpose and essential functions;
Consult with the individual to ascertain the precise job-related limitations imposed by the disability and how those limitations could be overcome with a reasonable accommodation;
In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

What is an essential job function under the ADA?

An essential job function under the ADA is a job function that the employee must be able to perform. This is a subjective determination and therefore is often frequently disputed in ADA lawsuits. Many positions will list essential job functions in the job description. This is one factor that is considered when determining whether a job function is essential. Others include:

Whether the reason the position exists is to perform that function
The number of other employees available to perform that function or among whom the performance of the function can be distributed
The degree of expertise or skill required to perform the function
The actual work experience of present or past employees in the job
Time spent performing the function
Consequences of not requiring that an employee perform a function; and
Terms of a collective bargaining agreement

What can I do if my ADA rights have been violated?

If your Disability rights are being violated, there are a few steps you can take:

Make an internal complaint: you may be able to make a complaint to human resources or a related department if they were not involved in the discrimination.
File a complaint with the Equal Employment Opportunity Commission (EEOC): You may file a complaint with the EEOC, who will investigate your claim and make a determination. However, estimates are that the EEOC only brings charges in about 2% of its cases.
Contact an experienced employment attorney: You may be able to bring lawsuit for disability discrimination, failure to accommodate disability claim, disability harassment, or retaliation. If you need a disability discrimination lawyer, visit our homepage to learn more about Fett Law.

Additional Resources

do i have a disability discrimination claim

If your disability rights have been violated, the law allows you to sue your employer for violating your rights. There are four main disability claims that an employee may bring, a disability discrimination claim, a failure to accommodate disability claim, a hostile work environment based on disability claim, and an ADA retaliation claim.

A disability discrimination claim under the ADA arises when the employer unlawfully takes the employee or applicant’s disability into consideration when making an adverse employment decision. This includes discriminating against a disabled individual by refusing to hire, terminating, demoting, or in relation to compensation and benefits.

A failure to accommodate disability claim arises when the employer refuses to implement a reasonable accommodation that would allow the disabled employee or applicant to perform the essential functions of the job. For example, depending on the circumstances more fully discussed below, an employer may be violating the ADA by refusing to allow a modified schedule accommodation for an employee with multiple sclerosis.

A hostile work environment claim based on disability arises when the employee is subjected to harassment based on disability that alters the terms or conditions of employment.

An ADA retaliation claim arises when an employer retaliates against an employee for exercising rights under the ADA, opposes or reports violations of the ADA, or for participating in an investigation in connection with an ADA violation.

disability discrimination claims

As mentioned above, there are two different claims that relate to disability discrimination, in addition to harassment and retaliation claims. Generally, when an employer admits the employee’s disability was the reason for the adverse action, the employee’s claim will fall under a failure to accommodate disability claim. Conversely, if the employer denies that the disability played a role in the adverse action, the employee’s claim will likely fall under the traditional framework for discrimination claims.

Failure To Accommodate Claims

In an ADA failure to accommodate claim, the employer admits the employee’s disability was the cause of the adverse action and relies on challenging other elements, listed below. An example is when an employer admits it terminated a disabled employee, but asserts that there were no reasonable accommodations available to enable the employee to perform the job.

The legal framework for failure to accommodate disability is as follows:

The employee must prove that he or she is disabled
The employee must prove that he or she is qualified for the position
- Despite his or her disability with accommodation from the employer
- With an alleged nonessential job requirement eliminated, or
- With a proposed reasonable accommodation
The employer must then prove that a challenged job criterion is essential or that a proposed accommodation will impose undue hardship on the employer.

1. The Employee is Disabled

To meet this ADA discrimination claim requirement, the employee must demonstrate that their medical condition meets the definition of disabled under the ADA. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such impairment, or being regarded as having such an impairment. This ADA definition essentially imposes two requirements, a physical or mental impairment and that the impairment substantially limits a major life activity.

As described above, a physical impairment under the ADA includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine. A mental impairment under the ADA includes intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

2. The Employee is Qualified

To meet this ADA Discrimination claim requirement, the employee must demonstrate they can perform all the essential functions of the job despite their disability, they can perform the job with the elimination of an alleged nonessential job requirement, or that they can perform the essential functions of the job with a reasonable accommodation.

The first method, demonstrating that the disabled employee can perform the functions of the job, can be accomplished by demonstrating that the disability does not have any impact on the ability to perform the essential functions of the position and may often intersect with the second method.

The second method arises when a disabled employee alleges that an employer’s claim that a job criterion is essential is in fact nonessential, that is, not required to perform the job. Whether a job criterion is an essential job function is a case by case analysis, but factors include:

Whether the requirement is listed as essential in the job description
Whether the reason the position exists is to perform that function
The number of other employees available to perform that function or among whom the performance of the function can be distributed
The degree of expertise or skill required to perform the function
The actual work experience of present or past employees in the job
Time spent performing the function
Consequences of not requiring that an employee perform a function; and
Terms of a collective bargaining agreement

The third method, that the employee can perform the essential function of the position, involves demonstrates that there were reasonable accommodations the employer could have made but did not. This type of disability discrimination claim often intersects with a failure to accommodate disability claim and is discussed separately below under the failure to accommodate disability section.

3. Employer's Burden

If the employee demonstrate they are disabled under the ADA and qualified for the position, the employer must justify its refusal by proving that a challenged job criterion is essential or that the proposed accommodation will impose an indue hardship on the employer.

If the employee is alleging the job criterion is not essential, the employer will argue it is under the factors above.

If the employee is alleging there was a reasonable accommodation that the employer refused, the employer may argue that the accommodation was not reasonable in that it imposed an undue hardship on the employer.

The ADA defines undue hardship as significant difficulty or expense, considering:

The nature and cost of the accommodation needed under the ADA
The overall financial resources of the facility involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility
The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographical separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity

Employer Denies - Discrimination Framework

In an ADA Discrimination claim, when the employer denies considering the employee’s medical condition when making the adverse employment decision, the court generally applies the traditional indirect evidence discrimination framework absent any incriminating statements.

Under the indirect evidence framework for disability discrimination claims, the following framework applies:

The employee must prove
- The employee is disabled under the ADA
- The employee is qualified for the position
- The employee suffered an adverse employment action
- The employer know or had reason to know of the disability, and
- The position remained open while the employer sought other applicants, the disabled individual was replaced with a person without a disability, or that the employee was treated differently than a similarly situated employee who is not disabled.
If the employee can meet all of these requirements, the employer must offer a legitimate, nondiscriminatory explanation for its actions other than the employee’s disability
If the employer is able to offer a nondiscriminatory explanation, the employee must then offer proof showing that the offered explanation is not the true reason for the adverse action.

If the employee can meet its requirements, the case will proceed to trial, where a jury or judge will determine whether, more likely than not, the employee has proved the following requirements: 1.) the employee has a disability under the ADA; 2.) the employee was qualified for the position; and 3.) the employer took the adverse action because of the employee’s disability.

1. The Employee's Initial Burden

The requirements listed in the employee’s initial burden under the ADA discrimination indirect evidence method are to allow the employee to demonstrate circumstances which may give rise to an inference of discrimination.

An employee will demonstrate that they are disabled under the ADA and qualified for the position in the same way that they would under the direct evidence method, discussed above.

An adverse action in an ADA claim is an action related to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Adverse actions can include those related to:

Recruitment
Firing
Hiring
Training
Job assignments
Promotions
Pay
Benefits
Lay offs
Leave

The employee must also demonstrate that the person who made the adverse employment decision was aware of the employee’s disability, or that they should have known.

Lastly, the employee must show that the position remained open while the employer sought other applicants, the disabled individual was replaced with a person without a disability, or others similarly situated without a disability received benefits that the disabled employee did not.

2. The Employers Burden

If the employee meets its burden, the employer then may offer a nondiscriminatory reason for the adverse action. For example, the employer may assert that they did not hire the disabled applicant because they hired a more qualified applicant.

3. Plaintiff's Burden to Demonstrate Pretext

If the employer can offer a nondiscriminatory reason for the adverse action, the employee must demonstrate that this explanation is a pretext, or lie, to cover up disability discrimination. For instance, in the example above, if the employee can demonstrate that the hired applicant was in fact not more qualified for the position, the employee will have successfully rebutted the employer’s explanation and the case will proceed to trial.

Burden at Trial

The employee bears the burden of proving by a preponderance of evidence, that is, more likely than not, the following elements: 1.) the employee has a disability under the ADA; 2.) the employee was qualified for the position; and 3.) the employer would not have taken the adverse action but for the employee’s disability.

Retaliation in Violation of ada

The ADA prohibits an employer from retaliating against a disabled employee for engaging in conduct protected under the ADA. There are three types of protected conduct under the ADA, exercising rights guaranteed under the ADA, opposing or reporting violations of the ADA, and participating in an investigation in connection with an ADA violation.

An example of ADA retaliation for exercising ADA rights is retaliation for requesting an accommodation.

An example of ADA retaliation for opposing or reporting violations of the ADA is retaliation for filing a disability discrimination complaint with the EEOC.

An example of ADA retaliation for participating in an investigation in connection with an ADA violation is when an employee testifies on behalf of a co-worker who has filed a disability discrimination complaint.

ADA Retaliation claims are substantially similar to Title VII Retaliation claims, and you can learn more about the legal framework on our Know Your Rights, Retaliation page.

Hostile Work Environment disability claim

The ADA also prohibits harassment based on disability in the workplace of a disabled employee. Disability harassment claims are brought as hostile work environment based on disability claims.

To be successful on a ADA hostile work environment based on disability claim, an employee must prove: 1.) the employee was disabled or perceived as disabled; 2.) the employee was subjected to unwelcomed disability harassment; 3.) the harassment was based on the employee’s disability; 4.) the disability harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment; and 5.) the employer knew or should have known about the disability harassment and failed to act.

ADA hostile work environment based on disability claims are substantially similar to Title VII hostile work environment claims, and you can learn more about the legal framework on our Know Your Rights, Hostile Work Environment page.

do i have a disability lawsuit?

To summarize, in order to have a disability discrimination claim, you must be able to demonstrate that the employer took an adverse action against you because of your disability.

In order to have a failure to accommodate disability claim, you must be able to demonstrate that you could perform the position with reasonable accommodations, and that the employer refused to provide the requested accommodations.

To have a disability retaliation claim, you must have engaged in protected activity (such as requesting an accommodation), and that the employer took an adverse action against you because of the protected activity.

Lastly, to have a hostile work environment based on disability claim, you must demonstrate that you were subjected to unwelcome, severe or pervasive disability harassment and that the employer failed to act.

Even if you can satisfy the legal requirements for a disability claim, the employer may have defenses that you would need to overcome. In addition, the damages you may recover must justify the time and expense of bringing a disability lawsuit. You can learn more about how much your case may be worth by visiting our Know Your Rights, Case Valuation page.

The only way to know for sure whether you have disability lawsuit is to contact an experienced attorney specializing in employment law. If you have been the victim of any type of disability discrimination, contact Fett Law today and we would be happy to review your case free of charge. Visit our homepage for more information about our firm.

Know Your Rights