Disability Discrimination in Employment
About
What is Employment Discrimination Based on Disability?
The right of employees to be free from discrimination based on disability is protected under the law, including the following enforced by the Equal Employment Opportunity Commission (EEOC) :
The law against discrimination based on disability includes all aspects of employment. This includes hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.
Retaliation
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It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.
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It is illegal to harass an applicant or employee because he or she has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).
Harassment
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It is unlawful to harass a person based on disability.
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Harassment can include, for example, offensive or derogatory remarks about a disability. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
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The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Americans with Disabilities Act (ADA)
What is disability discrimination under Titles I and V of the Americans with Disabilities Act of 1990 (ADA)?
- Disability discrimination occurs when an employer or other entity covered by The Americans with Disabilities Act (ADA), as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because he or she has a disability.
- Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because he or she has a history of a disability (such as a past major depressive episode) or because he or she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).
- The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship").
- The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability).
- For example, it is illegal to discriminate against an employee because her husband has a disability.
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Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the ADA. The protections are the same.
About
- The law requires an employer to provide reasonable accommodations to employees and job applicants with a disability, unless doing so would cause significant difficulty or expense for the employer.
- A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
- Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
- While the federal anti-discrimination laws don't require an employer to accommodate an employee because he or she must care for a family member with a disability, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA. For more information, call: 1-866-487-9243.
- An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the employer.
- Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
Not everyone with a medical condition is protected from discrimination. In order to be protected, a person must be qualified for the job and have a disability as defined by the law. A person can show that he or she has a disability in one of three ways:
- A person has a disability if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function).
- A person has a disability if he or she has a history of a disability (such as cancer that is in remission).
- A person has a disability if he or she is subject to an adverse employment action and is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he or she does not have such an impairment).
The law places strict limits on employers when it comes to asking any job applicants to answer disability-related questions, take a medical exam, or identify a disability.
- For example, an employer may not ask a job applicant to answer disability-related questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain disability-related questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.
- Once any employee is hired and has started work, an employer generally can only ask disability-related questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
- The law also requires that employers keep all medical records and information confidential and in separate medical files.
State Law
Louisiana State Law and Disability Employment Discrimination
Louisiana Law, LA Rev Stat 23:332 prohibits intentional employment discrimination.
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Title 23 Labor and Workers Compensation - RS 23:332 Intentional Discrimination in Employment
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LA Rev. Stat. Sec. 23:332 includes age, disability, equal pay/equal compensation, national origin, race/color, religious, and sex-based employment discrimination.
Retaliation claims for other types of discrimination complaints are not covered under the Louisiana Employment Discrimination Law. Under La. Rev. Stat. § 23:967 General Whistleblower Protection Law an employee may not be discharged (or discriminated against) in retaliation for performing, in good faith, the following activities:
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Disclosing (or threatening to disclose) a workplace act or practice that violates state law;
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Providing information or testimony in a public investigation, hearing, or inquiry into any violation of the law;
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Refusing to participate in (or objecting to) an illegal employment act;
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To be protected under this statute, the employee must first inform the employer of the violation. An employee is not protected if he goes directly to a governmental agency without first advising the employer. Also, an employee must be certain that the illegal conduct actually happened; a reasonable, good faith belief will not protect an employee if no violation actually occurred.
The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, there are exceptions to the general rule; the Louisiana whistleblower protection statute. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: health care employees, insurer employees, labor investigations & proceedings, and workers' compensation.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
How to File a Charge
To File a Charge
Laws like The Americans with Disabilities Act (ADA), require you to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the Louisiana Commission on Human Rights (LCHR) before you can file a discrimination lawsuit against your employer. An individual alleging a violation of ADA must file a charge with the EEOC or the LCHR before you can file a discrimination claim in federal court. You can also file your claim in state court based on state law without filing with the EEOC or LCHR first.
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To File an Equal Employment Opportunity Commission (EEOC) Charge:
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Within 180 days of the alleged unlawful compensation practice (2 years under the EPA)
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15 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last) (20 or more for age-related claims).
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To File with the Louisiana Commission on Human Rights (LCHR)
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Within 180 days of the alleged unlawful compensation practice
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20 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).
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To File in a State Court under Louisiana State Law:
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You may file a claim under state law without having first gone to either the EEOC or LCHR.
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Generally, to preserve your claim under state law based on your state discrimination claims, you must file within 1-year or 360 days of the date you believe you were discriminated against.
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If you file your discrimination claim with the EEOC or LCHR within 300 days of the discriminatory treatment, then you have an additional 6-month extension from the 1-year period to file your claim in Louisiana state court (meaning you have 18 total months).
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A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute such as Title VII, ADEA, ADA, GINA, and/or PDA, or because the employer is based in another state.
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To File a Discrimination Claim in Federal Court
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To preserve your claim under federal law, you must cross-file with the EEOC or LCHR within 300 days of the date you believe you were discriminated against.
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A federal employment discrimination case cannot be filed in court without first going to the EEOC or LCHR , as discussed above, and having the EEOC or LCHR dismiss your claim.
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This process is called “exhaustion” of your administrative remedy. The EEOC or LCHR must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim.
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A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice.
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