Despite the Americans With Disabilities Act (ADA) being passed in 1990, the significant majority of disabled employees still encounters discrimination in hiring and in employment itself. Less than 20 percent of disabled people are employed as of 2017, and once employed, they have to deal with conduct that most non-disabled people do not face. Some of it is malicious, but some of it is perpetrated by well-meaning coworkers and employers that are simply unaware of their responsibilities under the ADA. Here’s an ADA 101 crash course to help answer your questions.
Hiring and Firing Misconceptions
Some of the most common misunderstandings surrounding disabled people are in regard to hiring and firing disabled employees. Many employers think, for example, that they cannot in good conscience refuse to hire a disabled person. This is not accurate. The ADA holds that an employer cannot refuse to hire someone on the basis of their disability. If there are simply other more qualified applicants, an employer may hire one without making any reference to disability, and no inappropriate conduct has occurred.
Firing a disabled person is an action equally surrounded by myths. It is a common misconception, for example, that a disabled employee cannot be fired at all, or else an employer risks a discrimination claim. This is untrue. If a disabled person is a legitimate threat to others on the job (such as on a factory floor), if the person is unable to perform the job even with accommodation, or if there is another reason to terminate the person that is not related to their disability, they may be terminated. Disability is not an excuse to keep a job; it is a fact that must be taken into account when assessing job performance.
The other major area of confusion is reasonable accommodations. The key word is “reasonable.” Many parse it as “reasonable” to the disabled person, when in reality the issue is whether an accommodation is reasonable to the employer. If it is not, there is no provision in the ADA saying that the accommodation must be provided. What may be “reasonable” for a multinational corporation is not reasonable for a small business, and the law recognizes this principle.
The same issue is seen with issues of “undue hardship.” What is an “undue hardship” to a small business will not be in most cases to a larger company; the ADA defines it as an action requiring “significant difficulty or expense” in light of the employer’s financial resources and ability to perform. If an employee requires a very specific accommodation, but the cost would be significant for the employer, the employee must do without, contrary to popular belief which paints the ADA as always coming down in favor of the employee.
Ask An Experienced Attorney
While the Americans With Disabilities Act often gets a bad rap, it can still be quite complex. We hope that this brief ADA 101 post has helped, but in order to understand it fully, speaking to an employment discrimination attorney may be a good idea. Attorney A. Christopher Potts has experience in these types of cases and is happy to sit down and try to answer your questions.
Contact the Charleston firm of Hitchcock & Potts today.