The Lacy Employment Law firm

The Lacy Employment Law firm

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ADA Lawyer: Helping you Exercise Your Disability Rights

Perhaps you want to ask your company for help so you can do your job.  

Maybe you need to come into work a little later or on a modified schedule so you can attend a doctor’s appointment. Or maybe you need to work from home every once in a while. 

Perhaps it’s something worse.  You may have told your company you need a reasonable accommodation, and they fired you as a result.

If so, an ADA Lawyer can help you.  The Lacy Employment Law Firm represents individuals who have been discriminated against based on their disability.  

Employment discrimination based on disability is unlawful.  Under federal law, employers must follow certain statutory requirements.  

These are some of the most common legal issues we face. Mostly everyone will have an illness or disability during their lifetime.

At The Lacy Employment Firm, we have experience in pursuing these types of cases.  

This guide will give you the information you need to ask the right questions to your company and ADA attorneys interested in your case.  You will learn:

  • What an ADA lawyer is;
  • Who is covered under the ADA;
  • To which companies the ADA applies;
  • What constitutes a disability;
  • Whether you can sue under the ADA;
  • How to prove your ADA case;
  • Why you must still be able to work;
  • What is a reasonable accommodation, and how to request one;
  • Whether you should disclose your disability; and
  • How to spot ADA retaliation claims.

What is an American with Disabilities Act (ADA) Lawyer?

An ADA attorney is a lawyer who has experience with bringing cases under the federal disability employment statute.  The federal disability employment statute is the “ADA”  –  the Americans with Disabilities Act.

The Americans with Disabilities Act makes it unlawful to discriminate in the workplace against a qualified individual with a disability.  

The creation of this statute was a turning point in American history. Before the ADA, those with disabilities were not protected from discrimination in the workplace. 

Today, we take it for granted that people with impairments can work, and shouldn’t be fired because of their impairments.  

And the disabled can work just as, and often more effectively, than those without disabilities.  

The ADA was monumental in that it forced employers to recognize this fact and provide assistance to those with disabilities.

As you might expect, employers use every possible legal avenue to avoid liability under the ADA. It’s our job to hold them accountable.

Who is Covered under the ADA?

The Americans with Disabilities Act (ADA) covers employees with disabilities.   It also covers individuals who are regarded as disabled, even if you don’t have a disability.

The statute covers most types of employees, including both part-time and full-time employees. However, there are a few categories of “employee” that do not receive protection under the ADA.

It is not clear whether retirees or former employees are protected under the ADA.  Some courts have found that retirees and former employees are not protected.

Imagine that an employee retires because of disability discrimination.  Shouldn’t this person have her day in court too?

Independent Contractors are not Protected

It may surprise you to learn that the ADA might not protect independent contractors.   Independent contractors are workers that are not under the control of the employer.

Independent contractors can normally dictate how they perform their job duties.

Courts have mostly excluded these types of workers from the ADA. But other courts have found those same groups protected against discrimination.   

We call this a split amongst the courts, which means that the law here has not been decided.

Volunteers are Not Protected

Thinking of doing a good deed?  Maybe you want to go out and donate your time. Or maybe you want to gain experience in a particular field by volunteering your time.  And you should, volunteering is great.  

Just do not expect to have protections under the ADA.  No good deed goes unpunished. 

To Whom Does the ADA Apply?

Under the ADA, employers who have more than 15 employees must follow the requirements of the ADA.  

If you work at a company with less than 15 employees, you may still be entitled to some protections under the law.  

In Pennsylvania, the Pennsylvania Human Relations Commission (PHRC) is an administrative agency that protects against discrimination at the state level.

With an ADA Lawyer you can file a complaint at the PHRC

You can learn more about the PHRC on their website

Pennsylvania’s anti-discrimination law applies to employers with more than 4 employees. 

Although the laws and procedures differ slightly under state law, your employment rights are still protected.  Even if only state law applies to your employment law claim.

What Constitutes a Disability Under the ADA?

Disabled employees have protections under state and federal law.    

The precise definition of disability is — as you may have guessed — subject to interpretation.  

The official definition of disability under the Americans with Disabilities Act is a person who: 

∙ has a physical or mental impairment that substantially limits one or more major life activities  (actual impairment); 

∙ has a record of such an impairment (record of); or 

∙ is regarded as having such an impairment (regarded as).

In practice, we mostly focus on the first element.  That is, having a physical or mental impairment that substantially limits one or more major life activities. 

Actual impairment involves either a physical or a mental impairment.  There are certain types of disabilities that courts generally agree qualify an employee for protection under the ADA.

Physical Impairments are Protected under the ADA

ADA Lawyers Protect those with Physical and Mental Impairment

When most people think disability, they often think of physical impairment.  Disability has almost become synonymous with physical impairment.

A physical impairment is any physiological disorder or condition, such as:

  • cosmetic disfigurement or anatomical loss;
  • Neurological disorder;
  • Musculoskeletal arthritis;
  • respiratory disorder;
  • cardiovascular disorder;
  • reproductive disorder;
  • digestive disorder;
  • genitourinary disorder; and
  • hemic and lymphatic disorder.

Employers generally, but not always, take more care with physical impairments. That’s because they are more difficult to ignore.

In today’s world, more and more jobs do not require physical strength.  Workers often sit behind a computer desk.  Yet that does not always stop discrimination based on your physical impairment.  

Your supervisors may still make comments about your physical disability.  They may say that you are not up to the job.   This could ultimately result in you receiving worse assignments.  Or it could lead to demotion, reassignment to a different position, or even termination. 

This type of discrimination may or may not be obvious.  But if you suspect discrimination, you should contact a disability discrimination lawyer.  

Disability Lawyers Protect those with Mental Impairments

Mental impairments include, amongst others, learning disabilities, psychological disorders, and intellectual impairments. 

Here’s a list of common mental impairments that substantially limits major life activity: 

  • depression;
  • anxiety disorders;
  • bipolar disorder;
  • schizophrenia;
  • obsessive-compulsive disorder;
  • post-traumatic stress disorder (PTSD);
  • and personality disorders.

Unfortunately, mental impairments carry stigma.  You cannot see a mental impairment.  This often means employers don’t treat them like other types of disabilities, or erroneously believe that the employee is making it up. 

ADA Lawyers with the ADA provide the same level of protection for mental impairments as physical impairments. 

The ADA provides the same level of protection for mental impairments as physical impairments.   

Can you Sue under for ADA Violations?

There are many ways in which you can sue for violations under the Americans with Disabilities Act (ADA).  But those ways typically fall under two types of claims.  You can sue for discrimination or for your employer’s failure to accommodate you.

A disability discrimination claim requires adverse employment action.  This means that your employer must have harmed your employment in some way.  This could be demotion, reassignment, or termination.  

To succeed on a discrimination claim, you must also have proof that the discrimination was because of your disability.

Failure to accommodate cases occur when your company does not give you the accommodation you need to perform your job.  But just because your employer denies your requested accommodation does not mean they broke the law.  

Your employer is not required to provide you the specific accommodation that you request. They’re only obliged to engage in the interactive process with you and discuss what type of accommodation you need to perform your job. 

This means that when your employer becomes aware that you have a disability requiring an accommodation, they must discuss with you how they can help. 

Whether your employer grants your request depends on whether the accommodation is reasonable.  And whether it would impose an undue hardship on the company.  More on this later.

Lastly, you might have a retaliation claim. These are very common with ADA lawsuits.  Retaliation means that your company decided to take adverse action against you.  And it did so because you asked for an accommodation or took other protected action.

How do you Prove ADA Discrimination?

Proving discrimination typically involves showing that you are disabled, able to work, that your employer took an adverse employment action against you, and that you were discriminated against.   

Concerning disability, most disabilities under the Americans with Disabilities Act are noncontroversial.  No one is disputing that paralysis is not a disability. 

Attorneys are important here because they know the law.  And with their knowledge of the law, they can make sure that you get over the first hurdle.  Even if it’s the easiest one.

The second hurdle, proving that you’re able to work (discussed more below), is a bit higher.  You must provide evidence that you could still work with or without a reasonable accommodation.  

Failure to do so dooms most discrimination cases.  Positive performance reviews and testimony from co-workers are great ways to prove your ability to work. 

The next hurdle is about even with the last.  You have to show that your employer took an adverse action against you.  This would include firing you, demoting you, reassigning you, failing to promote you, and giving you worse work assignments.

The highest hurdle you’ll have to clear is proving discrimination.   

Gathering evidence of discrimination can be tricky.  It’s rare that a supervisor comes out and says, “you’re fired, we need people without disabilities.”  This would be an extremely easy case.

And you would be in for a big settlement.

Most times, supervisors discriminate against disabled persons without saying a word.  We then need to find examples of similarly-situated people who did not face discrimination.

This means that if you believe discrimination occurred, we’d look for people who were not disabled.  And then show that they did not suffer the same consequences you did.

Proving ADA discrimination take a disability attorney who is attentive to the details.  Someone who can piece together evidence to make your case.

You Still Must Be Able to Work

An often overlooked part of a disability claim is the fact that you still must be able to work.  

Even if you have an impairment that substantially limits a major life activity (disability), you must still be qualified to perform your job. 

That is, you must meet the requirements for your position you are working in, even if you need some assistance from your employer to perform the job.

The ADA refers to this as the ability to perform the essential functions of your job.  

The essentials functions of your job: “are the basic job duties that an employee must be able to perform, with or without reasonable accommodations.”

Simply, if an employee cannot do the job, even with some form of assistance, the employer does not have to keep that employee.

For example, an employee at a warehouse may be required to lift heavy products as part of his job. The doctor may inform the employee that he can’t lift more than 5 pounds. 

The employer can decide to let that employee go if there is no one to help him lift the packages.  Or if he will not recover soon to do it himself.  

This job may require lifting very heavy objects.  And that requirement is essential for performing the job.

If you can’t do that even with a reasonable accommodation, your employer may let you go.

ADA Lawyers can help you if you are fired for your disability

Most people hire employment attorneys after they are fired.  Yet you may actually need help during employment.

Let’s say you become disabled after you have worked at a job for ten years.  You like your job.  You do not want to find a new one.  And you do not want to lose your job.

A disability discrimination lawyer can advise you first on whether you actually have a qualifying disability.  Then, your ADA attorney can advise you on whether you can still perform the essential functions of your job.

Most times, employees with disabilities can still do their job.  And oftentimes, they can do so if provided with the right reasonable accommodations.  

An ADA Lawyer Can Help You Request a Reasonable Accommodation

A reasonable accommodation under the Americans with Disabilities Act (ADA) is:

  • any change to the application or hiring process, to the job, to the way the job is done; or
  • any change to the work environment that allows a person with a disability who is qualified for the job to perform the essential functions of that job and enjoy equal employment opportunities.

Reasonable accommodations are the heart of disability law.  If you believe you have a disability and need your employer’s assistance to perform your job, then you should request a reasonable accommodation. 

This triggers your employer’s obligation to engage in the interactive process with you. Even if the company just suspects you need one, it has an obligation to start the interactive process with you.

This is key.  You can ask or not ask for an accommodation.  But, in reality, if you want one, you should ask.  Courts have found that those who do not ask, do not receive. Your company must know that you need a reasonable accommodation. 

And it’s easy for your company to say they did not know you needed an accommodation.

If an employer is on notice that you may need an accommodation, they have to engage in the interactive process with you.

For example, consider the situation where an employee suffering from depression finds it hard to get out of bed in the morning. 

He does not ask for an accommodation or tell his employer that he has depression.  His employer thinks the employee is lazy.   

The employer, unsurprisingly, disciplines,, and eventually terminates the employee’s employment.   In this situation, it is unlikely that the employee will win a disability discrimination lawsuit. 

The employer cannot discriminate or fail to accommodate an employee if the employer is not aware of the disability. 

How to Request a Reasonable Accommodation

There’s no special way in which you request a reasonable accommodation.

You do not have to say anything specific.  You could just say that you have a disability.  And you would like to request a reasonable accommodation because of this disability.  

If you have suggestions on how your employer can help you, you can also tell them. But they do not have to provide you with a specific accommodation. 

After making you request, your employer is required to engage in the interactive process.  That means that your employer must work with you to find accommodations. 

You must cooperate during this process.  If you do not, you may lose protections under the Americans with Disabilities Act

Here are some examples of requests for accommodations: 

  • Equipment to adjust the height of your desk so you can use your wheelchair.
  • Some defined period of additional unpaid leave, even if the employee is not eligible for leave under the FMLA. 
  • Extra breaks, time off, or a modified work schedule.
  • Reassignment to a different position.
  • Assistive technology, such as telephone amplifiers, screen reading software, and other computer modifications.

This list is by no means exhaustive.   A lawyer can help you. 

An attorney for disabled workers could suggest additional accommodations that you could request, and ensure that the employer treats you in accordance with the law.

Also, the law may require your employer to suggest possible accommodations. 

Your company, however, has no obligation to provide you with the specific accommodation you requested. They also do not have to provide you with an accommodation if it presents an undue hardship. 

An undue hardship means the accommodation requested is an unreasonable burden on a company. 

If you have a disability, make sure you know your rights.  If you feel that you need help to do your job, ask for it.   

Your Decision to Disclose your Disability  

Requesting reasonable accommodations is necessary to protect your rights.  But what happens if your employer insists on trampling on them?  Will they discriminate as soon as you disclose your disability?

The fact that disability discrimination still exists is a hard truth. Stigma around disabilities still exists.  Especially stigma around mental disabilities.  

For instance, let’s take someone with bipolar disorder.  People with disabilities, like bipolar disorder, are seen as unpredictable.  People believe the manic highs may make them irrational.

Further, the depressive lows may inhibit their ability to get out of bed and go to work.  

Unsurprisingly, many people with disabilities like this choose not to disclose it.  There are valid reasons for not doing so.  

Because of stereotypes surrounding disability, supervisors may consider people with disabilities like bipolar mentally incompetent.   

Deciding whether to disclose to your job is a personal decision.  You need not make this decision alone. 

I would, however, say that you have the most protection if you do disclose.  After you disclose, your employer is on notice.  They are on notice that they have to uphold their statutory obligations. 

And the failure to do so will result in lawsuits and settlements.  

Retaliation under the Americans with Disabilities Act

If your company takes tangible employment action against you (fires you, demotes you, or reassigns you) after you disclose you have a disability, you will have multiple employment actions against them.  

Amongst others, you will have a disability discrimination case and a retaliation case.

A disability discrimination case occurs when your employer fires, demotes, or reassigns you because you have a disability.

A retaliation case, however, is where your employer takes an adverse action against you in retaliation because you either (1) requested an accommodation for a disability, or (2) complained about disability discrimination. 

To prove retaliation, you must show that you engaged in protected activity. That is, you made some kind of complaint.  There are other categories of protected activity, but complaints are the most common type of protected activity. 

Next, you have to show that the employer terminated you because of your protected activity. 

This is usually proven by providing evidence that the retaliation was close in time to the adverse employment action. In other words, you were fired a few days or months after you complained.

You can also show this if your supervisor gave you negative performance evaluations or targeted you after you complained.

Determining whether you should tell your employer is a tough decision.  But think of it this way.  If your work is slipping, your employer might fire you.  And you have no recourse.

But if your work is slipping and you tell your employer it’s because you have a disability, you can request a reasonable accommodation.  

This puts your employer on notice of your disability.  And employers are reluctant to fire employees with known disabilities. 

Employers hate being sued.  And they hate paying settlements even more.  

Conclusion

This area of employment law requires lawyers for disability discrimination that know and understand the nuances of the ADA statute.  

As you can see, many pitfalls exist.  If you fail to properly request an accommodation, you could lose your ADA case before it even starts.  

Contact us at The Lacy Employment Law Firm.  We are not afraid to take cases like these all the way to trial if need be.  We can help you in Philadelphia, Pittsburgh, and throughout Pennsylvania. 

Even if you have not been fired, we can help.  We can advise you on your rights before termination and hopefully prevent it.  

Do you have a disability?  What will you exercise your rights?

The information provided is not legal advice.  It is informational use and does not form an attorney-client relationship. To form an attorney-client relationship with The Lacy Law Firm, contact us to learn more about our services and for a free consultation. 

If we cannot take your case, we will help you find a lawyer or law firm that can. We will make sure you get legal advice and representation you need.

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