RYAN SCOTT NALLEY IS A CHICAGO LAWYER DEDICATED TO ADVOCATING FOR THE RIGHTS OF EMPLOYEES TO BE FREE FROM UNPAID WAGES, UNPAID OVERTIME WAGES, AS REQUIRED BY THE FAIR LABOR STANDARDS ACT of 1938 AND/OR THE ILLINOIS MINIMUM WAGE LAW AND WAGE PAYMENT AND COLLECTION ACT OR DUE TO A BREACH OF WRITTEN OR ORAL CONTRACT; AS WELL AS RACIAL DISCRIMINATION; DISABILITY DISCRIMINATION, RELIGIOUS DISCRIMINATION, RETALIATION, INTERFERENCE AND/OR RETALIATION PURSUANT FAMILY MEDICAL LEAVE ACT of 1993, THE PROTECTION OF WHISTLE BLOWERS; AGE DISCRIMINATION, GENDER AND SEXUALITY DISCRIMINATION; OR A HOSTILE WORK ENVIRMENT UNDER ANY OF THE SAME. IF YOU HAVE THE ABOVE OR SIMILAR PROBLEMS, CALL ATTORNEY, RYAN SCOTT NALLEY, [773] 621-6809

ADA

 YOUR RIGHTS UNDER THE NEW AMERICANS 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, and stereotypes. Others who have a record of a disability or are regarded as having a disability by their employers or co-workers to the extent that it results in unequal treatment of the employee are also protected from discrimination pursuant to the Americans with Disabilities Act of 1990, ("Act").

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 definition of what being a person who is "substantially limited in a major life activity" by broadening the definition of "disability" itself. Prior to the amendments the employee was in a somewhat "catch 22" situation because he or she had to prove both that he or she was capable of performing the essential duties of the job, with or without a reasonable accommodation and at the same time prove that he or 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.

The purposes and intent of the 2008 amendments as stated in the Act are, ". . .

(b) Purposes

(1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA;

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;

(3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”;

(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis; and

(6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.

Further, mitigating measures such as, medication or therapy were factored into 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 protected by the Act. The 2008 abolished this vague standard, and now require that any mitigating measures towards an employee’s disability not to be considered in assessing whether an employee qualified 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 that defendants are no longer advised to focus their attack on whether the employee meets the standards of being disabled 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 of the fact that he or she has an extraordinarily greater chance of success prevailing in court.

However, as the Act only became effective on January 1, 2009, we have yet to see how faithfully the court's will honor the plain language of the amendments in there broadness, or whether they will slim them down with honeyed words.

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: making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. Additionally, you may be covered by the law in the event you are regarded as having a disability or have a record of such disability.

In addition to the above, both laws also protect non-disabled employees from certain types of medical examinations an employer may give to an employee. There are numerous exception to the general rule which forbids employers from requiring unnecessary 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 screening out a qualified individual with a disability because her or she has, or is thought to have.

Most importantly, as with virtually all discrimination cases, time is of the essence.  Thus, you must Act as quickly as possible, and it is recommended that you contact an attorney with a proven track record in handlind disability discrimination claims.

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

attorney@ryannalleylaw.com

 

 

YOU HAVE THE RIGHT TO BE FREE DISCRIMINATION IN THE WORKPLACE BASED ON RACE, DISABILITY, GENDER, NATIONAL ORIGIN, THE NEED FOR LEAVE DUE TO SERIOUS ILLNESS OF A FAMILY MEMBERS ILLNESS; TO BE PAID ON TIME AND AT A RATE OF ONE AND A HALF OF YOUR REGULAR RATE FOR ALL HOURS WORKED OVER 40 IN ANY WEEK; YOU HAVE THE RIGHT TO A REASONABLE ACCOMMODATION THAT ALLOWS AN EQUAL OPPORTUNITY TO PERFORM YOUR A JOB DESPITE YOUR DISABILITY; THE RIGHT EQUAL PAY, GENDER EQUALITY, TO BE PREGNANT; YOU HAVE THE RIGHT TO COMPLAIN ABOUT ANY OF THESE RIGHTS WITHOUT FEAR OF RETALIATION. THOUGH EMPLOYED AT WILL, YOU HAVE EMPLOYMENT RIGHTS. THE LAW OFFICE OF RYAN SCOTT NALLEY [773] 621-6809