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Summary

The ADA (Americans With Disabilities Act) provides a variety of protections in the workplace for people with a "disability" including a prohibition against  discrimination or harrassment, and provision of a reasonable accommodation when needed to do the job.

This article deals with discrimination and harrassment. For information about other aspects of the law, see the below links.

Protection Against Discrimination With Respect To Work

The ADA (Americans With Disabilities Act) protects against discrimination in phases of work for eligible employees who work for covered employers. For instance:

  • Hiring: 
    • A covered prospective employer cannot ask about your health condition unless it is relevant to the performance of the job.
    • If an employer knows about your health condition, the ADA permits an employer to refuse to hire you if the work poses a direct threat to your health or safety or your condition poses a direct threat to others.
  • While you are at work:
    • You cannot be discriminated against in your work load, compensation, etc.
    • Your employer must provide equal access to whatever health insurance coverage is offered to other employees.
  • Firing: You cannot be fired because of your health condition. However, you can be fired for poor performance.
  • You cannot be discriminated against for enforcing your rights under the ADA.

Proving that you've been discriminated against can be difficult. The best protection is to be pro-active and start keeping a work journal. We're not suggesting that you assume that will be discriminated against. The journal is "just in case." It does not require a lot of effort to keep.

If the use of marijuana for medical purposes is legal in your state, it is not legal on a federal level and therefore may not be protected by the ADA.

If you feel you are being discriminated against, gather evidence. Then, speak with your supervisor. If that doesn't work, speak with the highest person you can reach in the Human Resource department if your employer has one. If there is no such person, speak with the head of the company. If discussion doesn't work, if you are protected by the ADA, it doesn't have to cost you money to enforce your rights. See Enforcement of the Americans With Disabilities Act and Enforcement of the Americans With Disabilities Act -- Getting Started.

NOTE:

  • You can avoid negative reactions from co-workers if you keep them updated about your situation. For instance, you can start by sharing information with a friend or colleague who can prepare the other people in the workplace. If there are negative reactions, try to talk it out with the person directly. Let him or her know what is happening with you so the person gets an understanding of the situation.  If that doesn't help, speak with a manager, supervisor or the HR department.  People in HR can frequently act as a buffer with other employees and can educate the other employees about what it is like for you.
  • The ADA does not prevent an employer from including a waiting period for health insurance coverage for pre-existing conditions even though such clauses may adversely affect employees with disabilities more than other employees. There is limited protection against such clauses thanks to the federal law known as HIPAA

For information, see:

For information about additional legal protections at work, click here.

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Medical Marijuana

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Accommodation

Protections Against Discrimination When Applying For, At Work, From Being Fired, Complaining

The ADA protects against discrimination in the different phases of work:

  • Hiring: 
    • A covered prospective employer cannot ask about your health condition unless it is relevant to the performance of the job.
    • If an employer knows about your health condition, the ADA permits an employer to refuse to hire you if the work poses a direct threat to your health or safety or your condition poses a direct threat to others.
  • While you are at work:
    • You cannot be discriminated against in your work load, compensation, etc.
    • Your employer must provide equal access to whatever health insurance coverage is offered to other employees.
    • You cannot be fired because of your health condition. However, you can be fired for poor performance.
  • When enforcing your rights: Under the ADA, you cannot be discriminated against at any time for enforcing your rights under the ADA.

To learn about what you can do to enforce your rights under the ADA, click here.

To learn about legal protections relating to work, click here.  




Why and How To Keep A Work Journal

Why Keep A Work Journal

A work journal is a form of insurance protection in the event of a loss.

  • The risk being covered is that you may be discriminated against because of your health condition or even a treatment.
  • The premium you're paying for the insurance is the few minutes it takes to keep a running diary of events. This doesn't mean you have to make an entry every day. Just when things happen.
  • The payoff is that in the event of a loss (in this case, discrimination against you), you have strong evidence to back-up your claim. A diary is strong evidence because it is "contemporaneous" -- made at the time events happen. Because of this, do not go back and change an entry later. If you do, make it clear when you made a change and why.

How To Keep A Work Journal

Include in your journal:

  • Things that happen at work that show you are doing a good job. For instance, you get a good job report, or are "employee of the month," or receive a letter from the president of the company telling you what a great job you're doing. Note who said or wrote the pat on the back and when. If you can, get a written copy of the good news and keep it with your diary.
  • Things that could indicate discrimination or harassment. They don't have to be out-and-out blatantly discriminatory or harassing events. It could be something as small as a joke about somebody with (fill in the blank.) Note the date, who did the action, and describe the action. If things don't ultimately add up to discrimination or harassment, there's no harm. If they do, you are prepared.

What Should I Do If I Think I'm Being Discriminated Against or Harassed?

Before you raise the issue with your employer, try to look at the situation as an independent third person would.

Speak with someone you trust who is knowledgeable about your job and the company. If you have a mentor or advisor in the company, speak with him or her. Describe your reasons for believing you're being discriminated about, and see what an objective third person thinks.

Look at the items listed in How Do I Prove Discrimination or Harassment. As you review the list, and think about what you would do in response to each item, do they seem to add up to a provable case of discrimination? Is it just your word against some one else's, or is there more evidence?

If you objectively believe you are the subject of discrimination, rather than waste your time, proceed informally. Even if you file a complaint with a governing body or go to court, there will be an attempt at an informal resolution.

Start with your supervisor. Perhaps the matter can be cleared up in a conversation.

If you don't feel comfortable having the discussion yourself, ask someone to do it on your behalf. If you hire an attorney to have the discussion, look for an attorney who has experience in employment law.

If you are a union member, ask your union to assist you.

If you don't get satisfaction:

  • Follow your employer's procedures for resolving employment issues informally.
  • If there is no formal procedure at your workplace, go to the highest placed person in the Human Resource office you can access. If there is no Human Resource office, speak with the head of the company.

If discussions don't work out, your next step is to file a claim with the Equal Employment Opportunity Commission (EEOC) or appropriate state agency. Watch out for filing deadlines -- if you miss a deadline your case can be dismissed.

To ask questions, call your local National Institute on Disability and Rehabilitation Research center. You can locate your regional center at: http://www.dbtac.vcu.edu/centers.aspx#maincontent offsite link. Once you have your answer, it can't hurt to call another regional office and ask the same question. Hopefully you'll get the same answer.

To find an attorney experienced in job discrimination cases contact:

  • National Employment Lawyers Association (NELA) 44 Montgomery St., Suite 2080, San Francisco, CA 94104 Tel: 415.296.7629 www.nela.org offsite link;
  • Your local bar association (check http://www.abanet.org/barserv/stlobar.html offsite link)
  • Local legal aid or legal services group (look in phone book)
  • The Cancer Legal Resource Center -- Tel. 866.843. 2572 Mon -- Thur, 9 -- 5 Pacific time

ADA Prohibition Against Harrassment

Under the ADA, you cannot be harrassed. For ADA purposes, "harrassed" is when a person is subjected to offensive conduct that is sufficiently severe or pervasive to create a hostile or abusive work environment.

Harassment doesn't have to come from an employer. It can be harassment by co-workers as well.

There is no clear definition of "harassment" for purposes of the ADA. It's more like pornography: the courts know it when they see it. Basically, it is unwelcome harassment  based on your "disability" that is so severe or happens so often as to alter a condition or privilege of employment

Following are a few examples of prohibited harrassment which are meant to help clarify what is meant by harassment. The examples are far from all encompassing:

  • You return to work after brain surgery and a surpervisor refers to you as "plate head"
  • A supervisor sabotages your work because she is afraid of people who are HIV positive
  • Telling other employees not to talk to a "disabled" person

How Do I Prove Discrimination Or Harassment?

Pull together everything which indicates that you are being discriminated against or harassed. Include:

Everything that leads you to believe you are being discriminated against or harassed. Be specific.

  • Include conversations to the extent you can remember them as well as everything you can find in writing. When did they occur? In what setting? Were any witnesses present?
  • Include anything you can find in writing. For example, company publications, memos, e-mails, copies of work assignments. Do not take documents or access information you're not entitled to.
  • If the discrimination is from a company policy, get a copy of the policy.

All the good words, awards, pay raises, advances, and evaluations you've received.

They all show with clear evidence how qualified you are. If you've kept a work diary you already have everything you need in one place.

If you feel certain other employees are being treated better than you, make note.

Note how and why you think you're more deserving, or at least as deserving, as they are.

Include statistics if you can.

If there are no statistics about people with your health condition, perhaps there are for a group of health conditions, or more visible disabilities in general.

Statistics can be very useful in proving discrimination in the workplace cases of all kinds. This is especially true when the company is very large. In those cases, there are large enough numbers to do a real statistical analysis. If the numbers are good enough, they can be very strong evidence of discrimination.

Identify witnesses.

Make a list of the names and contact information of co-workers or others who have a first hand knowledge:

  • Of how qualified you are and what a good job you have been doing.
  • That you are being discriminated against or harassed.

Summarize what you expect the witnesses to say.

Also make a list of people who may not think you are doing such a good job, and what they may say. This list will be for you (and your attorney if you engage one) -- not for your employer. It helps you be ready in case these people are asked for information.

Ask friendly witnesses to give you a written statement.

The statement should include everything they saw or heard in person regarding your situation.

Get statements that specify the who, what, when, and where of the discriminatory or otherwise unlawful action.

Make sure the witnesses state only the facts of which they are personally aware and give specific examples of what they saw themselves or what they were told directly.

If possible, have the written statement signed in front of a Notary Public.

If you know of employees who were mistreated in the same way you were, ask them for statements about the way they were treated.

Even better, ask them if they will join you in stopping the discrimination and/or harassment.

Examples Of Areas Where An Employer Cannot Discriminate

Pre work

  • Recruitment.
  • Job Application and hiring.
  • Interview.
  • Pre-hiring physical examination.

At work

  • Pay.
  • Bonuses.
  • Job assignments. Note that an employer does not have to allow you to perform a job that poses a significant risk of substantial harm to the health or safety of yourself or others -- unless the risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.
  • Training.
  • Tenure.
  • Promotions.
  • Benefits. The ADA does not prevent an employer from including a pre-existing condition exclusion in a health insurance policy.
  • Time off.
  • Lay off.
  • Firing.

An employer also cannot discriminate against you if you advocate for your rights under a law protecting you against discrimination.

On the other hand, having a disability does not prevent you from being fired for other reasons, such as downsizing, the use of illegal drugs, or you're not performing the essential functions of your job.

Can I Be Retaliated Against For Enforcing My Rights Under The ADA?

In a word: No.

The ADA prohibits retaliation by an employer against someone who:

  • Opposes discriminatory employment practices.
  • Files a charge of employment discrimination.
  • Testifies or participates in any way in an investigation, proceeding, or litigation. 

People who believe that they have been retaliated against may file a charge of retaliation with the EEOC.

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