American's With Disabilities Act
One of the most insidious forms of discrimination is disability discrimination. Congress recognizes that physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination. The most recent attempt to remedy this issue is the Americans With Disabilities Amendment Act of 2008 ("ADAA"). The ADAA significantly broadens the scope of Act's protections by legislating over many of the limiting interpretations which the U.S. Supreme Court has handed down over the years since its original enactment in 1990.
The 2008 Amendments gave the employee a fighting chance by making sweeping changes to the legal standard an employee must meet to get a case to the trial phase of litigation. This came primarily by changing the the definition of being a "qualified person with a disbility" by broadening the definition of "disbility" itself. Prior to the amendments the employee was in a somewhat "catch 22" situation because he or she must prove both that she capable of performing the essentional duties of the job, with or without a reasonable accommodation and at the same time prove that she suffered from a medical condition that interfered with a major life activity. Usually, if the employee could meet the standard for being disabled, they could not meet the standard for being qualified for the job, or vice-versa.
Further, any mitigating measures to the disability, i.e. crutches, medication, therapy, was factered in to the court's decision of whether the employee was truly disabled. In other words, if an employee was taking medication that mitigated the symptoms of the disability, it was less likely that ailment qualified as an ailment. The 2008 abolished this vague factor of the standard, and require that any mitigating measures towards an employees disability will not be considered in assessing whether an employee wualified for protection under the act. See 29 C.F.R. Sec. 1630.03(j)(1)(vi). While the favorable changes in the 2008 Amendments cannot be fully discussed for the present purposes, it should suffice to say tha Defendants are no longer advised to focus their attack on whether the employee meets the standards of being disbled under the Act. This was previously a Defendant's easiest and fastest way to make a victims case disappear. With advent of the new amendments, employees suing under Title I of the American's With Disabilities Act have skyrocketed as a direct result that he or she has an extradinarily greater chance of success in the suit.
The Americans with Disabilities of 1990 now protect the rights of workers to be free from workplace discrimination in the United States to much greater extent due to the 2008 amendments. However, Illinois workers have additional protection under the Illinois Human Rights Act. For example, the American's with Disabilities Act only applies to employers with 15 or more employees after July 26, 1994. But the Illinois Human Rights Act covers alleged discrimination based on physical, mental or perceived handicap by any Illinois employers with one or more employees.
Under the both the federal and the state law, no covered entity shall discriminate against a qualified individual with a disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, or other terms, conditions, and privileges of employment.
A "qualified individual with a disability" means an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. As mentioned above, this is not always a difficult standandard to meet since the 2008 amendments.
The term "reasonable accommodation" may include:
In addition to the above, both laws also protect non disabled employees from certain types of medical examintions an employer may give to an employee. There are numerous eception to the general rule which forbids employers from requiring uncessarry medical exams from an employee, such requirements are often in violation of the ADA despite whether the employee is disabled. This particularly the case, when it appears that the employer is using the test as a pretext of terminating, or sreening out a qualified individual with a disability because her or she has, or is thought to have,
Ryan Scott Nalley is experienced in successfully handling discrimination cases based on disability against both employers and educational institutions. If you feel you have been discriminated against due to your disability, or denied a reasonable accommodation, call the Law Office of Ryan Scott Nalley for a free telephone consultation today.
(773) 621-6809
