Disability Discrimination

Editor's Note: Be sure to implement policies and practices to address disability discrimination.

Melissa Burdorf Overview: The Americans with Disabilities Act (ADA), as well as various state and local laws, prevent employee discrimination against employees and applicants with disabilities. Under federal law, a qualified individual with a disability is defined as an individual who, with or without reasonable accommodation, can perform the essential functions of the job. A disability can be (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. This definition can vary from state to state.

Since the ADA was amended in 2008 - through the ADA Amendments Act (ADAAA) - it is easier to prove that an individual is disabled under federal law. Therefore, employers should aim to establish policies and practices that prohibit disability discrimination and focus on the interactive process. Employers should be careful regarding preemployment inquiries and employment decisions that violate the ADA. Employers should also understand that they are legally obligated to provide reasonable accommodations to employees and applicants with disabilities unless an employer can show that it would suffer an undue hardship.

Trends: Because the passage of the ADAAA significantly expanded the definition of disability, many individuals who were not considered disabled under the law, are now protected. For example, individuals with who are obese, who suffer from allergic reactions to fragrances, who suffer from post-partum depression and even individuals with a fear of heights have been able to prove that they meet the definition of disabled under the law. Employers should know that the current use of illegal drugs such as marijuana even if used for medical purposes is still not protected under the ADA. However, some state laws may provide users of medical marijuana with greater protection. As such, employers should be aware of all state and local laws with regard to disability.

Further, employers should be aware that the US Department of Justice (DOJ) recently released guidance regarding individuals with or perceived to have AIDS/HIV. The guidance explains that individuals who are HIV-positive or carrying AIDS are covered by the ADA regardless of if they are showing symptoms of the disease. It also provides examples of reasonable accommodations employers can offer.

Author: Melissa Burdorf, JD, Legal Editor

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HR guidance on disability discrimination and ensuring that employees and applicants with disabilities receive fair treatment.