Private employers, employment agencies, and labor unions with 15 or more employees are covered by the ADA (also referred to as the ADAAA, with the additional AA standing for “as amended”).  Additionally, State and local governments of any size are covered by the ADA.

Under California’s Fair Employment Housing Act (FEHA), private employers with five or more employees are covered. 

Under Florida’s Civil Rights Act (FCRA), private employers with 15 or more employees in 20 or more calendar weeks in the current or preceding calendar year are covered. 

Under Georgia’s Fair Employment Practices Act, any Georgia state agency and any private employer with 10 or more employees cannot discriminate against any individual on the basis of disability.

Under Michigan’s Persons with Disabilities Civil Rights Act (PDCRA), private employers of any size are covered.

The ADA defines an “individual with a disability” as a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

“Major life activities” specifically include: 

• Seeing
• Hearing 
• Speaking
• Walking 
• Breathing
• Performing manual tasks
• Learning
• Caring for oneself, and 
• Working. 

The second part of the definition would include, for example, a person with a history of cancer that is currently in remission or a person with a history of mental illness.

The third part of the definition protects individuals who are regarded and treated as though they have a substantially limiting disability, even though they may not have such an impairment. For example, this provision would protect a severely disfigured qualified individual from being denied employment because an employer feared the “negative reactions” of others.

Almost all state laws have a similar definition.

While there is no specific time-duration requirement to meet the “disability” definition, generally, an individual with a minor, nonchronic condition of short duration, such as a sprain, infection, or broken limb, generally would not be covered. 

One common misconception is that disabilities lasting less than 6 months automatically fall outside of the “disability” definition.  This is false. While the ADAAA excludes transitory (lasting less than six months) and minor impairments from the “regarded as” avenue of coverage (employers who regard an employee as disabled even though they are not), neither the ADAAA nor the final regulations apply this exception to the other two definitions of disability. One of the “rules of construction” states that the effects of an impairment lasting less than six months can be substantially limiting. Title 29, Part 1630.2(j)(1)(ix) 

A qualified individual with a disability is a person who: 

• Meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks; and 
• Who can perform the “essential functions” of the position with or without reasonable accommodation. 

If the individual’s disability makes them unable to perform the “essential functions” of the position, the employer must consider whether the individual could perform these functions with a reasonable accommodation. 

The best evidence of the “essential functions” of the job is a written job description prepared before advertising or interviewing applicants for a job.  Obviously, the job description is written after the employee’s disability is known, it will be looked upon more skeptically by the court and a jury.

No, unless they can cite a “direct threat” caused by your disability, see FAQ 6 below. Both state and federal disability discrimination statutes prohibit your employer from discriminating against an employee because of their disability when making decisions regarding: 

• Hiring
• Firing 
• Layoffs
• Tenure 
• Promotions
• Leave 
• Compensation 
• Fringe benefits 
• Training, 
• And all other terms, conditions, and privileges of employment. 

If you believe you are the victim of disability discrimination, you should make a formal complaint to your employer in writing (e.g. an email cc’ing HR and your supervisors), AND file a charge of discrimination with both your state civil rights agency and the EEOC immediately.  

Yes. The ADA expressly permits employers to establish qualification standards that will exclude individuals who pose a “direct threat”—a significant risk of substantial harm—to the health or safety of the individual or of others, if that risk cannot be lowered to an acceptable level by reasonable accommodation. 

Crucially, your employer may not simply assume that a threat exists; your employer must establish through objective, medically supportable methods that there is a genuine risk that substantial harm could occur in the workplace. This requirement prevents your employer from acting on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

No, so long as the decision not to hire or promote you is unrelated to your disability.  

No. The ADA prohibits discrimination based on a relationship or association with a disabled individual. Often this form of discrimination is based on an unfounded assumption that the employee’s relationship with a person with a disability will affect their job performance (e.g. they will need to take more leave or will be distracted from work assignments). 

The ADA defines a “reasonable accommodation” as a modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or perform essential job functions.

The ADA requires reasonable accommodations as they relate to three aspects of employment: 1) ensuring equal opportunity in the application process; 2) enabling a qualified individual with a disability to perform the essential functions of a job; and 3) making it possible for an employee with a disability to enjoy equal benefits and privileges of employment. 

Common examples of reasonable accommodations include:

• Making existing facilities used by employees readily accessible to and usable by an individual with a disability
• Restructuring a job
• Modifying work schedules
• Providing additional leave
• Reassignment to a vacant position for which the individual is qualified
• Acquiring or modifying equipment

A fantastic resource for reasonable accommodation requests is the Job Accommodation Network (JAN). 

Yes, assuming it does not create an undue burden (e.g. excessive cost).  An employer may be required to modify facilities to enable an individual to perform the essential functions of their job and to allow individuals with a disability an equal opportunity to participate in all employment-related activities. For example, if an employee break area is inaccessible to a person using a wheelchair, the break area might need to be modified, relocated, or a comparable break area might need to be provided in an area that would permit the disabled individual to take a break with co-workers.

Yes. An employer is required to accommodate only “known” disabilities.  Generally, if you do not request an accommodation, your employer is not obligated to provide you with one. If a disabled employee requests a reasonable accommodation, but cannot suggest a specific accommodation, the employee and their employer must work together to identify a reasonable accommodation. This is called the “interactive process.”  

The “interactive process” involves four steps to be completed jointly by the disabled employee and their employer:

(1) Analyzing the position held by the disabled employee to determine its purpose and essential functions;

(2) Consulting with the disabled employee to determine the exact job-related limitations caused by their disability and how those limitations can be overcome with a reasonable accommodation;

(3) Identifying potential accommodations and assessing how effective each accommodation would be in enabling the employee to perform the essential functions of their position; and

(4) Considering disabled employee’s preferences when selecting and implementing the accommodation.  

Yes. First, you must (1) have a qualifying disability, (2) be qualified for the position, and (3) your disability must be known to the employer. Assuming you meet all three preconditions, your employer is still not required to make an accommodation if it would impose an “undue hardship” on the business. “Undue hardship” is defined as “an action requiring significant difficulty or expense” when considered in light of several factors. 

These factors include the nature and cost of the accommodation in relation to the (1) size, (2) resources, (3) nature, and (4) structure of the employer’s operation. When your employer is part of a larger entity,  the structure and overall resources of the larger organization will be considered, as well as the financial and administrative relationship of the facility to the larger organization. Generally, the larger your employer the tougher it will be to show that the requested accommodation is an “undue burden.” 

Are you the victim of disability discrimination, harassment, or retaliation?  Premier Litigators handles high-value, high-impact disability discrimination, harassment, and retaliation matters (AKA “wrongful termination”) in California, Florida, Michigan, Georgia, and Illinois.  For a free consultation with one of our attorneys about your disability discrimination case, contact us at (877) 858-6868 or coordinator@caklegal.com.