Disability in the Workplace: Discrimination, Harassment, and Retaliation
By: Meaghan Kramer*
In honor of the Americans with Disabilities Act’s (ADA’s) 30 Year Anniversary, the ACDL is posting a five-part series to educate Arizonans with disabilities about their rights at work. Today’s post is part five of this series and discusses discrimination, harassment, and retaliation under the ADA.
The ADA protects job applicants and employees with disabilities are protected from employment discrimination, harassment, and retaliation in the workplace.
What is discrimination under the ADA?
An employee who works for a covered employer, or an applicant who applies to work for a covered employee, has a claim for employment discrimination under the ADA if he or she:
- was disabled within the meaning of the ADA;
- was qualified to perform the essential functions of his or her job with or without reasonable accommodation; and
- was subjected to an “adverse employment action” as a result of his or her disability.
An employee or applicant may also have a claim for discrimination based on association with a person with a disability.
“Adverse employment actions” include, but are not limited to, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of unlawful harassment by other employees, supervisors or third parties in the workplace (e.g. customer, vendor).
Consider these examples.
An employee who is Deaf and whose primary language is American Sign Language (ASL) is put on a corrective action plan for not implementing new procedures at work that were rolled out during a series of training sessions. He had requested ASL interpreters for the training but was denied the interpreter and told to get notes from co-workers. He may have a claim for employment discrimination based on denial of reasonable accommodation.
An employee is denied a promotion because her employer tells her that although she is performing well in her current position, the company believes she will not be able to juggle the needs of her child who has autism with the stress of the new position. This employee may also have a claim for employment discrimination based on association discrimination.
If an employer fails to offer a qualified applicant a position on the basis that the applicant voluntarily reveals during the interview that he has a history of clinical depression, the applicant may have a claim for employment discrimination based on the ADA’s general anti-discrimination provision.
The above examples are not comprehensive but meant to illustrate the spectrum of discrimination claims in the employment context.
What is harassment under the ADA?
The Ninth Circuit Court of Appeals, which handles appeals from Arizona federal courts, has not yet ruled whether plaintiffs can have a claim of harassment under the ADA. The ADA has only been enacted for 30 years and the case law is still developing across the country. Employees or applicants who experience harassment, though, may have a cognizable claim if they can show the following elements, which have been established by a growing consensus of appellate courts across the country and by the federal district court in Arizona:
- the employee/applicant was disabled within the meaning of the ADA;
- she was subjected to unwelcome harassment;
- the harassment complained of was based on her disability or request for accommodation;
- that the harassment complained of affected a term, condition, or privilege of employment;
- that the employer knew or should have known of the harassment and failed to take prompt, remedial action.
In determining whether “unwelcome harassment” occurred, courts consider the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with an employee’s work performance.
“Terms, conditions, or privileges of employment” include, but are not limited to: job application procedures, hiring, firing, promotions, and compensation.
As an example, an employer has knowledge that its employees are bullying a co-worker with an intellectual disability by moving her work tools, calling her “retard” and other offensive names, hiding her backpack, and following her to and from the bus stop to intimidate her. The employee may likely have a claim for harassment under the ADA.
Harassment claims are not limited to harassment by co-workers and can include harassment by a supervisor or third-parties at work, such as customers.
The employer’s knowledge of the harassment is an important element of establishing a claim for harassment against a co-worker or supervisor. If you are being harassed by your co-workers or supervisors, you should inform your supervisor or your human resources department.
What is retaliation under the ADA?
An employee is retaliated against under the ADA if she:
- engaged in protected activity;
- suffered an adverse employment action; and
- the adverse employment action was the result of the employee’s having engaged in protected activity.
“Protected activity” includes two general types of activities: opposing a practice that is unlawful under the ADA or participating in the procedures for processing discrimination complaints through the U.S. Equal Employment Opportunity Commission (EEOC).
Here are some examples of protected activity:
- filing charges alleging discrimination with the EEOC or other appropriate agencies;
- giving testimony as a witness to an EEOC investigator;
- complaining to an employer, either formally or informally, regarding disability discrimination;
- aiding or encouraging another employee to exercise rights under the ADA;
- reporting disability-related harassment of a co-worker by other employees;
- advocating on behalf of disabled students or on behalf of the employee’s own child;
- requesting a reasonable accommodation or reassignment;
- recalculating an employee’s long-term disability benefit amount; and
- filling vacancies for which an employee had applied with employees with a lower rank.
As in discrimination claims, “adverse employment actions” include, but are not limited to, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, reduction in pay or hours, and toleration of harassment by other employees.
An employee or applicant, for example, cannot be demoted because she asked her employer for time out of the office to obtain chemotherapy treatments. An employee cannot be skipped over for a promotion because he has previously reported to his employer that his co-workers had harassed him because of his visual impairment. As a final example, an employer cannot fire an employee because she has filed a charge of discrimination against the employer with the EEOC. Again, these are just examples of retaliation. Employees or applicants who suffer any type of retaliation that meets the elements set forth above may have a claim for retaliation under the ADA.
If you have questions about whether you have a claim for discrimination, harassment, or retaliation, you can contact the EEOC, or contact our intake department to set up an appointment. If you do have a claim, it is likely subject to a statute of limitations, so it is important that you consider your options without delay.
This article is the final installment in a five-part series that the ACDL is posting to educate Arizonans with disabilities about their rights at work. Check out our earlier Disability in the Workplace posts on the disabilities (blog #1) and employers covered by the ADA (blog #2), reasonable accommodations (blog #3), and the interactive process (blog #4).
*Meaghan Kramer recently joined the Phoenix office of the Arizona Center for Disability Law. Before joining ACDL, Meaghan spent 9 years in private practice, where she focused on employment law and litigation.
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