Recognize the Invisible Disabilities in the Workplace
Invisible disabilities aren’t expressly provided for in the Americans with Disabilities Act (ADA), but the 2008 amendments suggest a place for such disabilities under the protections of the ADA. The federal courts have not moved so far as to define these often hidden or invisible disabilities. This can make it more difficult for employees to receive protections for invisible disabilities.
The Definition of Invisible Disability
A hidden or invisible disability is one that is not immediately view-able to an onlooker. These disabilities are usually physical, mental, or neurological and limit the individual’s activities due to an impairment of senses or movements. Below is a list of disabilities that might be defined as invisible disabilities.
Examples of Invisible Disabilities
- Anxiety disorders
- Attention deficit disorders
- Autoimmune disorders
- Brain injury
- Chronic fatigue syndrome
- Chronic pain
- Cystic fibrosis
- Diabetes
- Dyslexia and other learning disabilities
- Epilepsy
- Fibromyalgia
- HIV/AIDS
- Mental or psychiatric illness (depression, bipolar disorder, PTSD, etc.)
- Sleep disorders
ADA and ADAA Protections for Invisible Disabilities
Before the ADA received amendments in 2008, the court defined disabilities very narrowly. This often meant that hidden disabilities were excluded from the ADA protections. With the amendments, the definition of disabilities was widened.
“Substantially Limits”
The Americans with Disabilities Act Amendments (ADAA) and the Equal Employment Opportunity Commission (EEOC) now assess situations with a broader perspective on what “substantially limits” means for interacting with major life activity. In fact, the EEOC specifies that a disability doesn’t need to severely impair a major life activity to be considered “substantially limiting.”
Non-exhaustive List of Major Life Activities
To further aid courts in recognizing what disabilities receive ADA protections, the ADAA included a non-exhaustive list of major life activities in the regulations. This list includes activities such as concentrating, eating, hearing, learning, seeing, sleeping, and walking. Furthermore, the list outlines other bodily functions such as the endocrine system, immune system, and normal cell growth.
Situation by Situation Assessment
The ADAA emphasizes the fact that each individual with a disability should receive a personal assessment. However, the determination of the disability should not demand extensive analysis.
Employment Relationship Responsibilities to the ADA and the ADAA
Employers and employees alike are obligated to follow the law and the regulations therein. When either party violates the law, legal repercussions can be expected. Therefore, it’s important for employees to understand what the law requires of their employer as well as themselves.
Employer Responsibilities
The ADA and ADAA place certain requirements on employers for the hiring process as well as day-to-day employment. This ensures that individuals are not just judged for their disability rather than their other qualifications for the job. When disability discrimination is recognized, employers may face legal action.
Hiring Duties to the Applicant
An employer cannot ask disability-related questions or require a medical examination before a job offer has been made to the applicant. A physical agility test is not a medical exam so it can be conducted at any time during the hiring process. However, an employer cannot ask an applicant to fill out a form, indicating any potential impairments that he or she may have.
Medical Exams after Job Offer
Employers can require new employees to have a medical exam. But this must be policy for all employees and not select employees. The information received from those medical exams must be kept confidential and used only in accordance with ADA. If an employer withdraws a job offer due to the results of the medical exam, the reasons must be job-related and not due primarily to disability.
Reasonable Accommodation Interactive Process
When an employer becomes aware of an employee who has a disability, it is the responsibility of the employer to initiate an interactive process to determine a reasonable accommodation for that individual. This requirement is only satisfied when the employee states that they do not require a reasonable accommodation.
Employee Responsibilities
When it comes to the ADA and ADAA, employees have few responsibilities. However, the law recognizes the benefits received when an employee informs the employer about the need for reasonable accommodation. After all, the employee exercises the most personal knowledge of the disability.
Sue Your Employer for Invisible Disability Discrimination
Once you are certain that your employee rights have been violated by disability discrimination, you must follow the below steps to sue your employer. It’s important that you’ve done everything you can from within the business to resolve the discrimination before pursuing legal aid. Check your employee handbook for the company policy.
Before starting this process, consult an employment attorney to ensure that you are fully aware of all your legal options under the law.
1. File a Charge of Discrimination
When filing a charge of discrimination, you must choose whether to file with either the EEOC or the PHRC. Of course, you may choose to dual file as well. Dual filing allows for the most flexibility in choosing which court to file a lawsuit in later.
2. 180 Days and Right to Sue Letter
If 180 days have passed since you filed your charge with the EEOC and you’ve heard nothing, request a Right to Sue letter. This letter allows you to file a lawsuit. Be sure to file within 90 days of receiving the letter.
3. File your Disability Discrimination Lawsuit in Federal or State Court.
The key to choosing the right court to file your lawsuit with is knowing which laws you are claiming for your discrimination case. For example, a case filed under the Americans with Disabilities is a federal law and belongs in a federal court for a lawsuit whereas a case filed under the Pennsylvania Human Relations Act is a state law so would be handled in the state court. You cannot file in both federal and state court.
If you believe that your employer has discriminated against you due to your invisible disability, speak with an employment attorney today to determine your legal options.
Don’t hesitate, talk to an attorney: (412) 626-5626 or lawyer@lawkm.com.
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