A recent study by the National Bureau of Economic Research (NBER) has revealed that disability discrimination in hiring is rampant in America’s workforce. The organization conducted a study in which over 6000 fake cover letters were sent to management level executives of accounting firms. The results show that America is still grappling with its commitment to diversity and equality in the workplace concerning disabled workers.
That commitment stems from adherence to important employment discrimination laws passed over 55 years ago. Title VII of the Civil Rights Act is the primary federal authority on the subject of employment discrimination. The law protects disabled applicants and workers from unequal treatment and harassment in the workplace as well as from retaliation for reporting discrimination.
In addition, the Americans With Disabilities Act (ADA) is also a chief authority on the subject. The ADA is newer than the Civil Rights Act. Enacted just 25 years ago in 1990, the law has helped disabled individuals challenge unfair social norms and has helped support the independent living movement which brought disabled individuals out of hospitals and institutions and into the workplace.
Each state also provides disability discrimination protection. Most state laws on discrimination are similar in nature to federal law, but, with a lower threshold number of employees than Title VII or the ADA, may cover more companies. Both federal laws require an employer to have at least 15 or more employees before the law applies, whereas states can require as few as one employee.
What Makes Disability Discrimination Illegal?
According to the EBER study, employers failed to show interest in disabled candidates for jobs, even where the disability might have proven to be a significant advantage in the field. The disability bias, on full display in the study, highlights some of the most apparent factors involved in disability discrimination.
Often, what makes such discrimination illegal is the prejudice and perceptions behind an employer’s decision-making process. An employer’s illegal conduct, then, can lead to employment discrimination in a variety of ways:
Explicit Bias in Hiring Decisions
When an employer uses bias rather than the objectiveness of an employee’s personal qualifications to analyze whether job candidates are the best for a particular job, it could constitute a violation of state and federal laws against discrimination. The anti-discrimination laws of the U.S. are meant to provide protection to employees that could be subject to bias in specific instances, and disability is one of them.
Employers often harbor misinformed notions about a disabled applicant’s ability to perform the functions of a job, but that is still no excuse for unfair exclusions or unlawful treatment in the workplace, according to anti-discrimination law. For instance, an employer may assume that since a worker is pregnant, she cannot handle the rigors of her position and attempt to force her to early sick leave without pay. This would be a violation of Title VII and a violation of several state laws with protection in place for pregnant workers – a condition also protected under the ADA.
Failure to Provide Reasonable Accommodation
Speaking of pregnant workers, the laws against disability discrimination also provide that an employer must provide reasonable accommodation on request from a disabled employee. Unless that accommodation would place undue burden on business, an employer must comply with the request or be subject to the liability.
What is an undue burden? According to the EEOC, an employer is not obligated to allow an accommodation that significantly interferes with business in terms of time money and operations. Also, an employer is not obligated to accommodate until an accommodation is requested.
Still, employers cannot circumvent the law by getting clever. This means arguing that an accommodation cannot be provided because it involves cost or is against company policy may not be enough to convince a court that an employee is not entitled to damages concerning disability discrimination.
Harassment Based on Disability Status
Anti-discrimination law concerning disability is not just limited to addressing unfair treatment such as exclusion or demotion. It also addresses instances of harassment based on disabilities. This means that disabled employees have a right to work in a discrimination-free environment that is both safe and devoid of hostilities directed at the employee’s disability status. That includes harassment coming from a supervisor, co-worker, or even from clients and customers.
Failure to Provide Adequate Benefits
When an employer hires a disabled individual, the chief concern may be the amount of expensive benefits that will be necessary in order to accommodate the worker. This concern, if skewed too far in favor of bias rather than objective criteria, could lead to liability. The truth is that benefits can and should be applied equally to all workers according to the law.
Demotions and Terminations Based on Disability Status
Just as a disabled employees can and should expect not to be discriminated against during the hiring process, he or she can and should expect terminations and demotions to be based on fair criteria as well. Title VII and the ADA both afford this right and the courts have confirmed it, along with the help of the EEOC.
If you suspect that your termination or demotion has been based on bias due to your disability, chances are you have a federal or state disability discrimination case involving the ADA or a similar state statute. The benefits of pursuing a case against your employer could include reinstatement, back pay and lost wages.
One Last Issue: To Disclose or Not to Disclose
The above is not, of course, an exhaustive list of all the ways that disability discrimination can be illegal. The list of possible infractions and issues could go on. For instance, one more major point of concern, highlighted by the ERBC study, is whether or not it’s wise to disclose a disability to an employer in the first place. Considering the amount of evident backlash and bias present in the U.S., some may feel more inclined to keep quiet.
Still, disabled applicants should keep in mind, your rights are protected by federal and state law. These laws allow for dutiful and rigorous scrutiny in the courts if challenged. Opportunities to work as an equal employee do not only exist for the non-disabled. The law applies equally to everyone.