On September 5, 2018, board-certified employment attorney Kerry O’Brien participated as the “employee lawyer’s perspective” for the “Who is the client?” presentation to the Austin Bar Association Labor & Employment Section. The panel discussion with Kerry and three employer-side attorneys discussed the ethical considerations involved in determining when someone is, and is not, a “client.” […]Read More
If you can do the job, then you should get to, regardless of any disability you may have.
When it comes to disabilities, our nation has come a long way. In the 1800s, people with disabilities were often considered to be tragic, pitiful and hopeless individuals that were the victims of ridicule. People with mental illnesses that we now know as things like major depressive disorder were simply deemed “melancholy” and sent to “insane asylums.” Those assumptions and misconceptions persisted well into the 1900s. The way the disabled were treated is heartbreaking to think about in our present time. We can’t fix the past, but we can pave a better way for the future.
President Franklin D. Roosevelt was the first president with a major disability – having been rendered a paraplegic from contracting polio in 1921 at the age of 39. Yet the public accepted him regardless, and he ended up serving longer than any other president. It was a hint that our country was beginning to soften in their perceptions of the disabled.
Thanks to the subsequent Disabilities Rights Movement and the opening of the eyes of the public and recent presidential and legislative administrations, our country has come a long way. We now recognize that a disability is a part of the individual but does not define the individual. We have passed laws that collectively demand that the disabled will be treated with dignity and be given the same opportunities to succeed where they’re just as qualified to do so. However, because of fear or simple ignorance, some employers and co-workers still consciously or unconsciously discriminate against the disabled in a job opportunity or ongoing employment. The O’Brien Law Firm is here to continue the fight and help enforce the Americans With Disabilities Act.
When you’re treated differently because of your disability even though you should have an equal opportunity, that’s discrimination. And when you’re harmed by it, it’s illegal. Sometimes the evidence is clear and direct (specific comments) and sometimes it shows up through suspicious circumstances. And when you’re retaliated against because you complained about disability discrimination, that can be illegal as well.
Q: I don’t feel like I’m “disabled.” When I think of a disabled person, I think of someone in a wheelchair, which I’m not. I’m have a long-term medical condition, but am I really “disabled” and therefore protected by the Americans With Disabilities Act?
You may be. When it comes to disability discrimination, get rid of your preconceptions or notions of what it means to be “disabled.” The law has been written broadly to cover all sorts of impairments that might not seem like a “disability” as you have understood that term in your life until now. The key purpose of the law is to protect people with certain physical or mental health conditions or illnesses who can otherwise perform the essential functions of their job and could just use some accommodation in the work environment because of their “disability” to make it more conducive to the full performance of those duties.
Q: Then what’s a protected disability?
Whether someone has a legally protected “disability” focuses on whether they have “a physical or mental impairment” that “substantially limits” one or more “major life activities” – or a record of such impairment.
So the key on whether you have legally protected “disability” depends a lot on how it affects what law calls “major life activities.” This phrase is interpreted broadly under the Americans With Disabilities Act to mean things such as concentrating, walking, breathing, procreating, eating, seeing, hearing and many other activities that healthy or fully abled people take for granted. With this broad definition, here is a (non-complete) list of conditions that have been considered “disabilities” under the law:
AIDS, and its symptoms;
Blindness or other visual impairments;
Hearing or speech impairments;
Complications from Pregnancy;
Thyroid gland disorders;
Loss of body parts.
Q. How does the Americans With Disabilities Act protect me?
The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
Q: Are all employers covered?
No. Currently, federal and Texas state anti-discrimination laws only apply to employers with 15 or more employees. However, if your employer appears to have close to 15 employees, talk to a board-certified employment attorney about this before ruling out taking action. The standard used is very specific. But sometimes employers will have 15 employees for just long enough to be covered. Or perhaps the employer is using a few “independent contractors” who actually should count as employees. Or, perhaps the employer has his or her business operations split into multiple legal entities that should be considered, practically speaking (and legally, for ADA enforcement), as one unit, and that together would put the total employees over 15. Again – an attorney can sort this out. Talk to one before you walk away from holding an employer accountable for violating the law against you because of your disability.
Q: What if I had cancer, but it’s in remission? I’m afraid my supervisor is concerned about a relapse based on some comments he’s made to me recently. And now, he’s talking about demoting me to a job with less responsibility. Is this legal?
An employer cannot discriminate against someone with a “record” of a qualifying impairment. So just because you (fortunately) aren’t currently suffering from the condition that qualifies as a “disability,” you are still protected from discrimination stemming from that condition.
Q: What if I’m not actually disabled – but the employer treats me like I’m disabled in discriminating against me?
You are even protected by the ADA if an employer thinks you have a disability that you actually don’t have, and treats you worse because of it in a meaningful, job-related way. It’s called a “perceived disability.” One example of this is if the employer believes you are suffering from a mental impairment and takes a discriminatory action against you based on that – even though you don’t actually have one.
Q: My boss found out that my wife suffers from a serious disability that will presumably require my attention and care. I don’t have a disability myself. I’m afraid my very demanding boss will see me as less reliable now. Am I protected at all from job discrimination?
Yes. The ADA prohibits discrimination based on relationship or association in order to protect individuals from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance.
Q: I haven’t been fired or anything, but people at work are harassing me because of my disability. Does the law protect me from this?
First, it happens, and it’s disgusting. We’re getting to be more sensitive and compassionate overall as a society, but plenty of people are still behind the curve in the department. The bottom line is that you should be able to work without having to endure that kind of crap.
With that said – if the harassment rises to the level of being “severe and pervasive” – the official legal threshold required by our courts – then it can mean you are working in a true “hostile work environment,” which under these circumstances would be a violation of the disability anti-discrimination laws. There are a lot of considerations that are taken into account to determine whether there is a violation of law, so talk to a board-certified employment attorney to understand your rights and perhaps get some leverage and intervention to stop this from continuing.
Q: Can an employer ask me about any disabilities when I apply?
No, you normally cannot be asked about any disabilities or physical limitations before the employer makes an offer of employment to you.
Q: My employer says that my disability makes me a danger on the worksite, so I’ve been demoted to an office job. Can they do this?
It depends on your disability and the actual nature of your work environment. The employer can’t simply make an assumption that your disability is a danger. The employer must establish through objective, medically supportable methods that there is genuine risk that substantial harm could occur in the workplace if you’re permitted to work in your position with your disability. Sometimes the employer is correct – and often the employer is wrong. So yes, the law protects you from inaccurate and unfair assumptions – while balancing the interest of the employer in genuinely ensuring safe working conditions for you and the other employees around you.
Q: What’s the process if I’ve been discriminated against based on disability?
For discrimination cases in Austin, you have to first file a “charge of discrimination.” The O’Brien Law Firm normally files our clients’ charges of discrimination with the San Antonio Field Office of the Equal Employment Opportunity Commission. (Austin doesn’t have its own EEOC field office because the Texas Workforce Commission Civil Rights Division handles much EEOC work under a work-sharing agreement, and they are already based in Austin.) Dallas/Fort Worth-area discrimination cases are filed with the EEOC Dallas District Office. Houston-area cases are filed with the EEOC Houston District Office. You only have the right to file a lawsuit against the employer after the EEOC (or the TWC-CRD) has completed its investigation and issued you a notice giving you the right-to-sue the employer.
At that point, you usually have 90 days from your receipt of the EEOC notice (60 days from receipt of a TWC-CRD) notice to file your lawsuit. So, don’t wait until you get your right-to-sue notice to start looking for a board-certified employment attorney to help you. Our firm has worked with the San Antonio, Dallas and Houston EEOC investigators on a substantial number of investigations and can be a great asset to leveraging a satisfying result against an employer who is willing to negotiate early to resolve a violation. And if they aren’t – we are ready to use your skill and experience to get you justice in court and hold the employer accountable for the sake of protecting future job applicants and employees like you from the same type of job discrimination.
And unlike other types of discrimination, where there is ongoing illegal but non-malicious disability discrimination in your job, we can sometimes intervene and help get the employer on-track so that they make changes to get compliant with the law. The leverage of a board-certified employment attorney who is dedicated to helping employees can be very useful to making your job situation compliant with the law and discrimination-free.
If you believe that you are being or have been discriminated against due to a disability, call the O’Brien Law Firm NOW at (512) 410-1960, set up a FREE phone consultation or fill out the form below so that we can get to know you and your situation. Your information is confidential and the form submission goes directly to attorney Kerry O’Brien for his review.
On June 21, 2018, the O’Brien Law Firm sued Compass Datacenters, LLC on behalf of the firm’s client, a former sales director who, as the lawsuit alleges, was denied $200,000 in earned commissions from his work on the Tierpoint Tulsa Datacenter lease and a project for American Electric Power. In June 2017, Compass Datacenters’s CEO, Chris […]Read More