Your Employment Rights as an Individual With a Disability
Authored By: Guam Legal Services Corporation
In This Section:
- What is the ADA?
- Who is covered by the ADA?
- Discrimination in employment practices.
The Americans with Disabilities Act ("ADA") is a federal law passed in 1990. This law makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA also outlaws discrimination against individuals with disabilities in government services, public accommodations, transportation and telecommunications.
What Employers Are Covered by the ADA?
Job discrimination against people with disabilities is illegal if practiced by private employers, state and local governments, employment agencies, labor organizations, and labor-management committees.
The part of the ADA enforced by the Equal Employment Opportunity Commission (EEOC) outlaws job discrimination by all employers. This includes State and local government employers, with 25 or more employees after July 26, 1992, and all employers, including State and local government employers, with 15 or more employees after July 26, 1994.
Another part of the ADA, enforced by the U.S. Department of Justice (DOJ), bans discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, after January 26, 1992. Because the ADA sets up overlapping responsibilities in both EEOC and DOJ for employment by State and local governments, the Federal enforcement effort is coordinated by EEOC and DOJ to avoid duplication in investigative and enforcement activities. Some private and governmental employers are already covered by nondiscrimination and affirmative action
requirements under the Rehabilitation Act of 1973. EEOC, DOJ, and the Department of Labor similarly coordinate the enforcement effort under the ADA and the Rehabilitation Act.
Are You Protected by The ADA?
If you have a disability and are qualified to do a job, the ADA protects you from job discrimination based on your disability. Under the ADA, you have a disability if you have a physical or mental problem that substantially limits a major life activity. The ADA also protects you if you have a history of such a disability, or if an employer believes that you have such a disability, even if you don't. To be protected under the ADA, you must have a record of, or be regarded as having a large, as opposed to a minor, problem. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working. If you have a disability, you must also be qualified to perform the essential roles or duties of a job, with or without reasonable accommodation, to be protected from job discrimination by the ADA. This means two things. First, you must satisfy the employer's requirements for the job, such as education, employment experience, skills or licenses. Second, you must be able to perform the essential functions of the job with or without reasonable accommodation. Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job.
What is Reasonable Accommodation?
Reasonable accommodation is any change or adjustment to a job or work environment that allows a qualified applicant or employee with a disability to:
- Take part in the job application process.
- To perform the essential functions of a job.
- Or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
For example, reasonable accommodation may include:
Providing or adapting equipment or devices
Part-time or adjusted work schedules
Reassignment to a vacant position, adjusting or modifying examinations
Training materials or policies
Providing readers and interpreters
And making the workplace readily accessible to and usable by people with disabilities.
An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show the accommodation would be an undue hardship -- that is, that it would require significant difficulty or expense.
What Employment Practices are Covered?
The ADA makes it unlawful to discriminate in all employment practices such as:
And all other employment related activities.
It is also unlawful for an employer to retaliate against you for asserting your rights under the ADA. The Act also protects you if you are a victim of discrimination because of your family, business, social or other relationship or association with an individual with a disability.
Can an Employer Require Medical Examinations or Ask Questions About a Disability?
If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to prove how, with or without reasonable accommodation, you will perform the duties of the job. An employer cannot require you to take a medical examination before you are offered a job. Following a job offer, an employer can condition the offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business. The employer cannot refuse to hire you
because of your disability if you can perform the essential functions of the job with an accommodation. Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer's business. Your employer may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that govern such laws. The results of all medical examinations must be kept confidential, and
kept in separate medical files.
Do Individuals Who Use Drugs Illegally Have Rights Under the ADA?
Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired based on such use. The ADA does not prevent employers from testing applicants or employees for current illegal drug use.
What Do I Do If I Think That I'm Being Discriminated Against?
If you think you have been discriminated against in employment based on disability after July 26, 1992, you should contact the U.S. Equal Employment Opportunity Commission or the Guam Department of Labor Fair Employment Office (671-475-7019). A charge of discrimination must be filed within 180 days of the alleged discrimination. You may have up to 300 days to file a charge if there is a State or local law that provides relief for discrimination based on disability. However, to protect your rights, it is best to contact the Fair Labor Office or EEOC at once if discrimination is suspected. You may file a charge of discrimination based on disability by contacting the Guam Department of Labor Fair Employment Office or any EEOC field office. If you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorney's fees.
The information provided above is general and may not be applicable under all circumstances. The Guam Legal Services Corporation does not intend anything stated here to provide specific legal advice, or to solicit or establish any kind of professional attorney/client relationship with the reader. In matters of such importance, a professional should always be consulted.