Disability 101: The ADA and employment
August 5, 2008
One of the biggest areas of discrimination people with disabilities encounter is in employment. Readers with disabilities have been sharing their stories with me and I’ve discovered common themes.
I’ve heard stories about employees with disabilities who were physically unable to work overtime, yet their entire job performance was rated on their inability to work longer than 40 hours each week. I’ve heard about employers who get nervous about a perceived “safety threat,” thinking an employee with a disability is a danger to themselves or others, when no such threat actually exists.
I’ve heard about employers who were unwilling to learn about the needs of an employee with a disability, then judged that employee as lazy, incompetent, or having a poor attitude. Yet the real issue was simply a need for understanding and an accommodation that could easily be supplied and would allow the employee to capably manage their job.
I’ve heard about small employers who found ways to get rid of an employee with a disability because the cost of their employer paid health insurance became too much. I’ve heard stories about co-workers harassing employees with disabilities and the employer not providing appropriate assistance to resolve the issue.
The Americans with Disabilities Act, ADA, provides civil rights protection to people with disabilities in the area of employment. Title I of the ADA covers private employers that have 15 or more employees. Title II protects employees working for state and local governments of any size.
Additional laws cover other situations. The Rehabilitation Act protects federal employees with disabilities. Colorado law provides even more protection. C.R.S. 24-34-402 extends civil rights protection to employees working for employers of any size. In other words, in the state of Colorado, even if an employer retains only one employee, they are prohibited from discrimination.
These laws provide protection for “qualified” employees. In other words, an applicant or employee with a disability must meet legitimate skill, experience and education requirements needed to perform the “essential functions” of a job.
The requirements of the ADA and Colorado law cover application procedures, hiring, firing, promotion, demotion, compensation, training, recruitment, layoff, leave, fringe benefits and all other employment-related activities.
At the request of an employee with a disability, an employer must provide “reasonable accommodations” needed to allow the employee to perform essential job functions. Examples of such “reasonable accommodations” may include creating physical accessibility, providing technology compatible with an employee’s needs, providing flex time to allow the employee to attend medical appointments, the elimination of required overtime, and allowing the employee to sit on a stool when others normally stand. Employers are not required to make accommodations that result in significant difficulty or expense or that would change the fundamental nature of the job. However, tax credits are often available to employers to help offset the cost of such accommodations.
The area of civil rights in employment for people with disabilities is very complex and we are not even scratching the surface.
But why is it we have all these laws to protect employees with disabilities and yet discrimination still occurs on a regular basis? Very often employers, particularly smaller employers, aren’t aware of the regulations and lack experience and guidance in how these requirements play out in the average workday. Then it’s up to the employee with the disability who has experienced discrimination to file complaint with the Colorado Civil Rights Division or the Equal Employment Opportunity Commission.
That tends to be a complicated, time consuming, and intimidating option. But perhaps it’s our only option, if we are ever to realize the promise of these laws.
Frisco resident Sandy Lahmann is a disability consultant with Wheels on the Summit. E-mail her at firstname.lastname@example.org .