Rather than asking the question of ‘if’ an individual is disabled, the laws that regulate disability discrimination attempts to measure ‘how much’ a person is impaired by their disability. Arguably, it can be a tad degrading when you feel like you are being asked, ‘exactly how disabled are you’ or ‘how incapable are you’. Aside from the issues of political incorrectness within those statements (a discussion for some other time), it is counterintuitive to have to prove you actually have limitations while also maintaining that you deserve an equal shot at belonging in the workplace. Nonetheless, in order to gauge whether someone is protected from disability discrimination in the workplace, the law does draw certain distinctions as to the degree of limitation a person has due to their disability as well as what kind of activities the individual is limited to by the particular disability. By looking at the way in which an individual is restricted and the degree of that restriction, the law sets out boundaries on how an employer is to approach the hiring process of a person with a disability as well as how to accommodate current employees with a disability. Employers need to be aware of the individual’s needs and have a responsibility to reasonably accommodate those needs.
1. To what extent are you limited by your impairment?
The Americans with Disabilities Act looks to the diminishment of physical and/or mental capabilities of an employee or applicant to determine whether there is, in fact, a disability. Broadly speaking, certain employment laws may require that an employee or person applying for a job demonstrate how their impairment restricts a “major life activity”. This demonstration must indicate that not only is their ability to perform a major life activity restricted but that it is significantly restricted. In other words, the individual’s inability to do something due to their disability must be severe rather than merely impeding or hindering their ability.
Keep in mind that the employee or applicant can prove that he or she is in fact significantly limited by performing a single major life activity without having to show that it impacts other major life activities. This is not necessary to prove that the individual’s impairment is a disability.
2. Reasonable accommodations
The law recognizes the refusal of providing reasonable accommodation can be considered as disability discrimination. Refusing to provide adjustments to an employee is a means of measuring disability discrimination.
Note that an employer is likely obligated to provide reasonable accommodation to the individual even if the disability was incurred at work or outside of work. For example, if a restaurant employee hurt their wrist while lifting chairs and tables during their shift, an employer may still be expected to provide adjustments to the injured employee’s duties at work. An example of an adjustment for this particular employee would be perhaps to allow the injured employee to temporarily work at the register, or wipe down tables instead of lifting and stacking tables and chairs at the end of their shift. In contrast, if an employee was injured in a car accident while on a family vacation, the individual may still have a right to have certain accommodation provided to them based on their disability incurred from the car accident.
Whether the employee’s disability happened at work or occurred outside of work, the employer would need to address the employee’s particular needs in their current state of impairment. Again, the employer would need to address requests for accommodation that are within reason. This means that the employer may not be obligated to provide adjustments for an employee that may bestow unreasonable costs on the employer such as modifying the physical workspace or hiring additional support staff to help the employee.
3. Case-by-case basis
Whether or not a particular person, current employee or a potential hire, has a disability is determined on a case-by-case basis. This application of the law demonstrates the existing flexibility in disability discrimination law. Specifically, just because a person has been diagnosed with a particular illness, injury, disease, and/or disorder does not automatically render a person “disabled”. For example, Rick applied for a position to work as a crane operator for a construction company. For this particular position, each applicant was required to undergo a physical examination for safety reasons. A report from Rick’s General Practitioner noted that he experienced mild episodes of epilepsy as a child. When Rick’s application was reviewed by the construction company, management, as well as Human Resources, declared Rick’s application was not “valid” and therefore was not a desirable candidate for the position due to his history of mild epilepsy. Rick contacted an employment lawyer to discuss whether he had a disability discrimination case against the construction company for denying him employment due to his previous disability. Here, a court would possibly need to review the facts of Rick’s individual claim to decide if he was ‘disabled’ based on his actual impairment rather than the actual word used to identify his diagnosis, “mild epilepsy”.
As stated previously, it seems degrading for a person with a disability to have to prove just how limited he or she is by their disability. And again, it seems even more illogical to have to prove just how limited you are while simultaneously attempting to demonstrate that you are capable to perform within the position. However, in looking at the law in detail and context, it seems that in one aspect the laws are constructed this way in order to operate as safeguards for employers. Going back to the employer’s obligation to provide reasonable accommodation, it makes sense to apply the law on a case-by-case basis in the measurement of what is considered as a ‘disability’. This also can be seen as beneficial to employees or applicants who are majorly impaired and are in dire need of accommodation in that those particular individuals will be differentiated from mild cases of need. Overall, for both employees and employers, the flexibility of this area of law has a way of leveling the playing field for both parties.