Employment
Who is protected from employment discrimination?
Who is a “qualified person with a disability”?
What limitations does the ADA impose on medical examinations and inquiries about disability?
What remedies are available in employment discrimination cases?
Who is protected from employment discrimination?
Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants and employees. A person is considered to have a “disability” if he or she:
- Has a physical or mental impairment that substantially limits one or more major life activities
- Has a record of such an impairment
- Is regarded as having such an impairment
People who experience discrimination because they have an association or relationship with a person with a disability also are protected.
Who is a “qualified person with a disability”?
A qualified person with a disability meets legitimate skill, experience, education or other requirements of a job, and who can perform the essential functions of the position with or without reasonable accommodation.
What limitations does the ADA impose on medical examinations and inquiries about disability?
This depends on the stage of employment:
- Pre-offer: An employer may not ask or require an applicant to take a medical exam before making a job offer. It cannot ask questions that would reveal an applicant’s disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask a person with a disability to describe or demonstrate how he or she would perform these functions.
- Post-offer: An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category.If a person is not hired because a post-offer medical examination or inquiry reveals a disability, the reason for not hiring must be job-related and consistent with business necessity.
- Current employees: After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity. Employers may conduct:
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- Employee medical examinations where there is evidence of a job performance or safety problem
- Examinations required by other federal laws
- Examinations to determine fitness to perform a particular job
- Voluntary examinations that are part of employee health programs
I believe that my employer is violating the ADA. Where can I file a complaint about employment discrimination?
Before you can file a lawsuit in court under the ADA, you must exhaust your administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission. You must file within 300 days of the adverse employment action.
You may also exhaust your administrative remedies by filing a charge of discrimination with the Illinois Department of Human Rights. You must file within 180 days of the adverse employment action.
Federal employees have a different enforcement process.
In addition, depending on where you live and/or work, you may be able to file a charge of discrimination with your local civil rights commission. This typically does not count as “exhausting” your administrative remedies, but provides another forum for you to seek relief.
What remedies are available in employment discrimination cases?
Available remedies include:
- Hiring
- Reinstatement
- Promotion
- Back pay
- Front pay
- Restored benefits
- Reasonable accommodation
- Attorneys’ fees
- Expert witness fees
- Court costs
Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.
Can an employer ask for documentation when an applicant requests an accommodation for the application process?
Yes. Generally, when an employee or applicant asks for an accommodation, an employer or prospective employer may ask for limited medical documentation to verify the disability and need for accommodation. This is true even at the application stage when an employer may not otherwise ask for medical information. Keep in mind that employers and prospective employers are only supposed to ask for medical documentation if the need for the disability is not obvious.
The EEOC has a helpful document about rights/responsibilities related to job applicants.
Can an employee request a designated accessible parking space as a reasonable accommodation, even if the employer already has the required number of accessible parking spaces?
Yes, accessible, reserved parking may be a form of reasonable accommodation under the ADA, particularly if an employer provides parking spaces to all personnel. However, any space reserved for an individual with a disability as an accommodation under Title I would be separate from, and in addition to, the employer’s accessible parking obligations under Title III of the Act.
If an employee requests a shift change as a reasonable accommodation, does the employer need to pay the employee same rate?
It depends. Under the ADA, employers are required to provide qualified employees with disabilities a reasonable accommodation so long as the accommodation would not be an undue hardship on the operation of the business. In some instances, a shift change can be a reasonable accommodation. However, employers are not required to “promote” an employee, including raising their level of pay if transferring shifts. In addition, if an employer reassigns an employer to a shift that pays less, it would not have to maintain the employee’s previous rate of pay unless the employer transfers employees without disabilities to lower level positions and maintains their original salaries.
See question 30 from the EEOC guidance about reasonable accommodations,
- Question: If an employee is reassigned to a lower level position, must an employer maintain his/her salary from the higher level position?
- Answer: No, unless the employer transfers employees without disabilities to lower level positions and maintains their original salaries.
Last updated: March 22, 2023