Disability Discrimination

Rob Wiley: My name is Rob Wiley, and today I'm going to be speaking with Austin employment lawyer Colin Walsh about disability discrimination. So, Colin, starting off, I know that we see a lot of disability discrimination cases. What are the kinds of disabilities that are covered under our Americans with Disabilities Act?

Colin Walsh: Pretty much all disabilities are going to be covered under the Americans with Disabilities Act. Now, things like a broken leg or broken arm are probably not going to be disabilities, but everything else pretty much is.

Rob Wiley: And we see a lot of cases for individuals that have HIV. We see cases for folks that have diabetes. Uh, we have folks with mobility impairments. A lot of times a disability could be an inability to lift. Obviously, cancer is going to be a disability. Usually, any time you have a condition, like an actual disease or something like that is something that you have to look at and make sure that the condition meets the legal definition of disability. But since the Americans with Disabilities Act got amended effective in 2009 I would say that the question is not whether or not the person has a disability; it's whether or not the adverse employment action was because of that disability. So, and if someone believes that they're being discriminated against because of their disability, how long does that person have to take action?

Colin Walsh: That person has 180 days from the date of the discrimination to file a charge to preserve their state law claims. They would have 300 days to preserve their federal law claims.

Rob Wiley: And is that something that an attorney would do?

Colin Walsh: Yes. An attorney, an employment attorney would definitely be able to meet those deadlines and would help anybody who feels they are being discriminated against because of their disability ensure that they put their best case forward to the EEOC or to the Texas Workforce Commission.

Rob Wiley: And I think there's two fact patterns that we see a, a lot of. One is the person who can't get a job because of disability. So, in other words, they're otherwise qualifying for the job but once the employer learns of the disability they don't seem to be so interested in that candidate, and then the other type of discrimination that we see with disability is the everything- changes moment. Because a lot of times these things have to be disclosed. An employee discloses that he has HIV or diabetes or has an epileptic attack in the workplace, and then after that, everything changes. Or, in the alternative, we get a new supervisor who comes in who is not as accommodating of somebody who has diabetes or HIV or one of these other disabilities and then all of sudden that employee can seem to do no right. Now, one of the things about someone with a disability is that that may impact his or her ability to do the job at issue. Under the Americans with Disabilities Act, what if somebody has a disability that might affect their job? Does that mean that the employer can take action against them?

Colin Walsh: No. In fact under both the Americans with Disabilities Act and under Texas state law, an employer has the responsibility and duty to accommodate, reasonably, an employee's disability.

Rob Wiley: And that's my understanding of the test: If you can do your job, do the essential functions of your job with accommodation, then an employer cannot change the terms and conditions of your employment. Based on your experience, what makes for a strong disability discrimination case?

Colin Walsh: A strong disability discrimination case is going to be somebody that has a disability who's requested an accommodation that is, on its face, very reasonable. For example, somebody requests maybe leave to go attend chemotherapy appointments, and the employer then takes adverse action; they fire them, they demote them, they cut their vacation. That's going to be your strong disability discrimination: failure to accommodate claim.

Rob Wiley: And I think disability discrimination is one of those areas where sometimes employers do come out and say it. They take issue with the person's disability, because in their own biases and prejudices, somebody with a disability can't do then the job. And then, so then it becomes a fight about whether or not in fact they can, with or without accommodation.

Colin Walsh: Well, and I think an important thing to note on that is that since the ADA was amended, you now have a regarded-as disability. So, if your employer simply treats you as if you are disabled and treats you as if you are unable to do your job, you are being discriminated against under the ADA.

Rob Wiley: That's a good point. It covers people with disabilities, people who are regarded as having a disability, even if they don't have one and it also covers individuals with a record of a disability. So, if it was something that had happened in your past but you're not disabled anymore, you would also be covered. Thank you, Colin.

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