Being your own best advocate against disability discrimination

By Christy Hickman, ISEA staff counsel

Congress enacted the Americans with Disabilities Act (ADA) in 1990 with the stated purpose of setting clear and consistent standards to address discrimination against individuals with disabilities. 42 USC Â§ 12101 et seq.

The ADA does not create a preference for individuals with disabilities, but attempts to level the playing field for a portion of society Congress found to be "severely disadvantaged socially, vocationally, economically, and educationally." One way Congress sought to eradicate disability discrimination was to make it illegal for any employer with 15 or more employees, including state and local governments, to discriminate against qualified individuals with disabilities in hiring, firing, advancement, compensation, job training, and other terms and conditions of employment.

This Your Rights column will help you evaluate whether you are a disabled person entitled to the protections of the ADA and give you an action plan for being your own best advocate against disability discrimination on the job.

Are you entitled to protection under the ADA?

The ADA prohibits employment discrimination only against "qualified individual[s] with a disability." A qualified individual with a disability is a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of the job the person desires or currently holds. To be a qualified individual, a person must be able to satisfactorily perform the job. If a disabled person needs a reasonable accommodation to be able to perform his or her job, an employer must provide one. An employer does not have to hire or continue to employ a disabled person who cannot perform the job even with an accommodation.

In addition to being "qualified" for the job, the ADA requires that a person is "disabled." To be disabled under the ADA, a person must 1.) have a physical or mental impairment that substantially limits one or more of the person's major life activities; 2.) have a record (or history) of such an impairment; or 3.) be regarded by the employer as having such an impairment. Impairment under the ADA is a physical or mental impairment or psychological disorder, cosmetic disfigurement, or anatomical loss affecting one or more of the major body systems. Illegal drug use, compulsive gambling, kleptomania, and sexual behavior disorders are some of the conditions explicitly excluded from the definition of disability under the ADA.

Not all mental and physical impairments rise to the level of a disability. Only when a person's mental or physical impairment "substantially limits a major life activity" will the impairment be considered a disability. This concept has been the subject of much litigation. Courts have interpreted this ADA concept fairly conservatively and have maintained a high standard for what impairments constitute a disability. For an impairment to substantially limit a major life activity, the impairment must be permanent or long-term and significantly restrict an individual from carrying out at least one basic activity of daily living.

What is a reasonable accommodation?

A person with a disability is entitled to a reasonable accommodation if one is necessary to carry out his or her job duties. A reasonable accommodation is one that is feasible or plausible and will be defined by the needs of the person with a disability. The ADA does not require the provision of an accommodation that imposes an undue hardship on the employer. An undue hardship is much more than an inconvenience for the employer and is marked by significant difficulty or expense. An accommodation that would require an employer to fundamentally change its operation would cause an undue hardship for the employer.

What should you do if you believe you are entitled to a reasonable accommodation?

First, you should contact your UniServ Director for assistance in assessing your circumstances. With the help of the ISEA legal staff, you and the UniServ Director can evaluate 1.) whether you are entitled to an accommodation, and 2.) what type of accommodation is reasonable under the circumstances. If it is determined that you are entitled to an accommodation, your UniServ Director will assist you in submitting a request for an accommodation to your employer.