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Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In this episode, I will briefly recap Title I of the Americans with Disabilities Act (Title I) before discussing steps you should take in case you face discrimination at work.

If you have any comments or questions about this episode, you can complete the contact form on the Demand Our Access website, or you can email me at [email protected].

For more information about Title I, visit the page called ADA Title I Information.

If you are concerned as to how recent political events will affect the ability of people with disabilities to have concerns of discrimination addressed by the federal government, I will be covering that in the next episode. That episode will be live on ACB Community on Saturday, December seventh at 2:00 PM EST. It will be posted to Demand Our access shortly after it is presented live.

As I have said several times before, there is no way to cover this kind of material without using words like "impaired" that many of us in the disability community don't use. I'm using words like "impaired" here because those are the words used in the law.

Whether we like it or not, when communicating about the law we are required to use terms that are outdated. Maybe someday the ADA will be revisited and the updated law will provide for meaningful enforcement and be written in modern language. For now, we have to discuss the law as it has been written.

Briefly Recapping Title I

Our brief recap of Title I is based on the rules defining compliance with Title I as set forth by the Equal Employment Opportunity Commission (EEOC) in 29 C.F.R. § 1630. To make this presentation easier to follow, I'm not going to mention the exact citations to different sections of the Code of Federal Regulations. If you are interested in the citations, you can find them in the episodes where I discussed Title I.

I decided that the term "covered entity", while used in the Code of Federal Regulations, may be too confusing for people just learning about Title I. So, I have decided to replace the term "covered entity" with the term "employer". While I'm doing this to make the presentation easier to follow, it must be remembered that not all employers are covered by Title I; for example, if an employer employs fewer than 15 employees that employer is not covered by Title I.

If you heard either of the episodes where I discussed Title I in greater detail, some of this will be review for you. I have included what I believe are some of the most important things to know about our rights under Title I here so if someone listens to this episode prior to listening to the episodes on Title I, some of the information they will need is here.

Important Concepts

For an employer to be covered byTitle I, it must have at least 15 employees.

The United States government is not subject to the provisions of Title I; however, Section 501 of the Rehabilitation Act of 1973 provides similar protections for federal positions.

To be clear, state and local governments are covered by Title I. If you work or you are interested in working for a state or local government, what I am covering here applies to you.

Private membership clubs (excluding labor organizations) are not covered by Title I.

Religious institutions are covered by Title I. But they may give preference to people of their religion.

Members of the clergy and people perform essentially religious functions are excluded from the protections of Title I.

Discrimination Prohibited

It is unlawful for an employer to discriminate on the basis of disability against a qualified individual in regard to the following:

Recruitment, advertising, and job application procedures

Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring

Rates of pay or any other form of compensation and changes in compensation

Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists

Leaves of absence, sick leave, or any other leave

Fringe benefits available by virtue of employment, whether or not administered by the employer.

Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities and selection for leaves of absence to pursue training

Activities sponsored by an employer, including social and recreational programs

Any other term, condition, or privilege of employment

The term "discrimination" under Title I includes but is not limited to the acts described in 29 C.F.R. 1630.4 through 29 C.F.R. § 1630.13. Again, visit the page ADA Title I Information to learn more.

Contractual or Other Arrangements

It is unlawful for an employer to participate in a contractual or other arrangement or relationship that has the effect of subjecting the employer's own qualified applicant or employee with a disability to the discrimination prohibited by Title I.

Contractual or Other Relationship Defined

The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with an employment or referral agency, labor union, including collective bargaining agreements, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

The requirement that employers not discriminate through contractual arrangements or other relationships is important because of the number of relationships employers typically enter into that affect employees; for example, when an employer signs a contract whith a third party to manage the benefits the employer provides its employees, anything covered by that contract must be accessible. If an employer contracts with a third party for the use of an online portal where employees are to manage the benefits of their employment, the portal must be accessible.

Relationship or Association with a Disabled Person

It is unlawful for an employer to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.

The provision providing protections for those who have a relationship with a disabled person typically arises when an employer knows the family member of an employee has a disability requiring expensive health insurance. If the employer fires the employee to avoid the cost of their family member's health care, the employer has violated Title I.

Not Making Reasonable Accommodations

It is unlawful for an employer not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

It is unlawful for an employer to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such employer to make reasonable accommodation to such individual's physical or mental impairments.

An employer shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act.

An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.

An employer is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the actual disability prong or the record of a disability prong under the definition of disability. Someone who is regarded as having a disability is not entitled to reasonable accommodations under Title I.

Retaliation and Coercion

Retaliation

It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by Title I or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in Title I.

If you face discrimination at work, the retaliation provision is important because it protects any coworkers who tell the truth about the discrimination you are facing.

Coercion, Interference, or Intimidation

It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of,