RPJ Partner Deena Merlen on Disability Discrimination and Reasonable Accommodations
The month of May has become a very popular month for raising awareness of a wide range of health conditions, particularly so-called “invisible illnesses” from which many suffer not only from the disease itself but also from the condition being less apparent and therefore perhaps less likely to be believed and accommodated.
Let’s make the month of May not only a month in which we raise awareness of various illnesses, diseases and health conditions, but also awareness of important employee rights and employer obligations with respect to the reasonable accommodation of disabilities.
Federal law prohibits employers from treating a qualified employee or job applicant unfavorably because of a disability under the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act. The ADA pertains to private, state and city/local employees and covers employers with 15 or more employees, and the Rehabilitation Act pertains to federal employees. State and local laws throughout the country extend equal or greater protection than under the ADA with respect to disability discrimination, including coverage of smaller employers in many jurisdictions and often defining “disability” more broadly than under federal law. Bottom line: Most people in our country are protected against disability discrimination at work.
The US Equal Employment Opportunity Commission (the “EEOC”) is the federal agency that enforces the federal laws pertaining to discrimination, including discrimination based on race, sex, age, religion, disability and other enumerated categories. Notably, in recent years and continuing through the present, the EEOC fields more disability discrimination claims each year than claims in nearly any other protected category. See https://www.eeoc.gov/data/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2021. For example, for the EEOC’s 2021 fiscal year ending in 2022, out of all the charges filed with the EEOC, there were more disability discrimination claims filed than discrimination claims based on any of the other protected categories, including sex, religion, age, national origin, race, color, GINA and equal pay act violation. Only retaliation claims surpassed the number of discrimination disability claims – and a good portion of those retaliation claims related to retaliation over disability claims.
Covered employers are not only prohibited from discriminating against their employees because of disability but they also have an obligation to provide reasonable accommodation (for example, modifying the work environment or the way a job is normally done) to enable a qualified individual with a disability to enjoy equal employment opportunities, if such accommodation can be provided without undue hardship to the employer. The Job Accommodation Network (“JAN”), a service of the U.S. Department of Labor’s Office of Disability Employment Policy, provides a number of resources that can help employers and employees considering possible workplace accommodations.
On that note, and in support of the various efforts this May (and every May) to raise awareness of a wide range of illnesses, diseases and health conditions, we are taking the opportunity to spread the word about an interesting new report recently announced by the U.S. Department of Labor.
The report, which was published by JAN last week, follows an extensive effort to collect and analyze survey data collected from employers from 2019 to 2022. The study found that that nearly half of workplace accommodations made for people with disabilities can be implemented at no cost to employers, and of those that do incur a one-time cost, the median expenditure has decreased when compared to previous reports to only $300. It may cost the employer very little to provide a reasonable accommodation to a qualified individual with a disability, but to the person with the disability it can make a world of difference.
Among the findings:
- More than half of employers surveyed made accommodations to retain valued employees.
- The direct and indirect benefits of making accommodations included retaining valuable employees, improving productivity and morale, reducing workers’ compensation and training costs, and increasing workforce diversity.
To this list of the benefits of making accommodations, we add another important benefit to employers: reducing your likelihood of being sued. As indicated by the EEOC statistics referenced above, disability discrimination claims are on the rise.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Deena R. Merlen, who counsels clients in areas of employment and labor law, intellectual property, media and entertainment, general business law, commercial transactions and dispute resolution. Ms. Merlen is admitted to practice law in Connecticut and New York.