Disability Discrimination, Harassment or Retaliation

The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 are federal laws that protect individuals with disabilities.

The ADA prohibits employers from discriminating against, harassing, or retaliating against individuals based on their disability.

The Rehabilitation Act prohibits discrimination based on a disability in programs and activities that receive federal funding.

For employee to avail themselves of the protections of either of these laws, they must fall within one of the following categories: (1) they has a physical or mental impairment that substantially limits a major life activity; (2) they have “a record of such an impairment”; or (3) they are “regarded as having such an impairment”.

The ADA defines “disability” as: “a physical or mental impairment that substantially limits one or more major life activities. Regulations issued by the EEOC state that “major life activities” include “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working”.

Additionally, you must be able to perform the essential functions of your job with or without an accommodation. You are excluded from protection under the ADA if you need a reasonable accommodation to perform the essential functions of your job.

DISCRIMINATION BASED ON DISABILITY

In a disability discrimination claim under the ADA the employee must be able to demonstrate that: (1) an employee had a qualifying disability; (2) they were discharged; (3) at the time of discharge, they was performing their job at a level that met their employer’s legitimate expectations; and (4) the discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination.

HOSTILE WORK ENVIRONMENT BASED ON DISABILITY

To establish a hostile work environment based on disability an employee must show that: (1) they are a qualified individual with a disability; (2) they were subjected to unwelcome harassment; (3) the harassment was based on their disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer..

A hostile work environment claim involves widespread and/or severe harassment that creates an intimidating, offensive, or hostile atmosphere, thereby interfering with the employee’s ability to perform their job. Courts hold that to establish a hostile work environment based on race or national origin, the harassment must rise beyond simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is frequent, severe, and/or results in termination, demotion, or other adverse employment actions that affect an employee’s job benefits, such as a transfer, reduction in hours, or change in work schedule.

When deciding whether the harassment rises to the level of creating a hostile work environment, courts look at the totality of the circumstances, including the frequency of the harassing conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. A hostile work environment is one “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.”

Generally, an isolated incident does not constitute a hostile work environment unless it is severe and/or physically threatening in nature. Hostile environment claims typically involve repeated conduct that often occurs over a series of days, weeks, months, or even years.

IF YOU ARE EXPERIENCING DISCRIMINATION OR HARASSMENT BASED ON A DISABILITY, YOU SHOULD REPORT IT IN WRITING.  IT DOES  NOT HAVE TO BE FORMAL, AN EMAIL IS FINE.  UNDERSTANDABLY, IT IS SCARY AND MANY EMPLOYEES DON’T REPORT IT BECAUSE THEY FEAR RETALIATION.  HOWEVER, IF YOU DON’T REPORT IT, YOU MAY NOT BE ABLE TO BRING A CLAIM. MOREOVER, IF YOUR EMPLOYER RETALIATES, THEN YOU HAVE A STRONGER CLAIM BECAUSE YOU REPORTED IT. YOU SHOULD USE THE WORDS “DISABILITY DISCRIMINATION” OR HARRASSMENT BASED ON DISABILITY IN YOUR COMPLAINT.

RETALIATION BASED ON DISABILITY

If a manager, supervisor, or administrator terminates you, demotes you, reprimands you, or takes any other type of materially adverse action against you for reporting that you are being discriminated against or harassed based on your disability or because you requested accommodation for your disability, you may have a claim against your employer for retaliation.

It is illegal for an employer to retaliate against you because you reported discrimination or harassment based on your disability or because you requested an accommodation. Reporting harassment and/or discrimination is a protected activity. It is helpful to your claim if your employer’s retaliatory conduct occurs close in time to your complaint of sexual harassment or discrimination.

The Courts take a broad view of what constitutes retaliation. Retaliation can be subtle or blatant.  It consists of any negative action taken by an employer that would deter a reasonable employee from raising concerns or reporting discrimination or harassment.

Below is an inexhaustive list of examples of Retaliation.  However, retaliation is not limited to what is set forth below and can consist of many things:

• Reprimanding the employee shortly after they report harassment or discrimination.
• Changing the employee’s schedule
• Denying the employee training opportunities
• Denying the employee a promotion
• A reduction in pay
• A reduction in hours
• Giving an employee a performance evaluation that is lower than it should be
• Transferring the employee to a less desirable position ot location
• Subjecting the employee to increased scrutiny
• Leaving the employee out of important meetings
• Constantly criticizing the employee

The Retaliation does not need to be employment or workplace-related if it stems from you reporting harassment or discrimination based on your disability. Examples of non-related retaliation include:

• Your employer takes action against a family member.
• Your employer disparages you to others.
• A false report to the authorities.
• It can continue even after your employment ends.

Unfortunately, reporting harassment or discrimination does not shield you from discipline or discharge if your employer has legitimate reasons. But your employer must have a non-retaliatory and non-discriminatory reason for their actions. Your employer cannot make up a reason to terminate you when the real reason is discriminatory or because you reported harassment or discrimination. The burden is on the employee to demonstrate that the employer’s reason for terminating you is a pretext, meaning a dishonest reason not based on facts.

In order to pursue a claim for disability under the ADA

• Your employer must have at least 15 employees, and
• You must also file a charge of discrimination with Equal Employment Opportunity Commission (EEOC) or the South Carolina Human Affairs Commission (SCHAC) within 300 days of the alleged discriminatory conduct. It is preferable to have an experienced employment lawyer draft your charge. However, you don’t need a lawyer to file a claim with the EEOC or SCHAC. You can file a claim with these agencies on your own. See https://www.eeoc.gov/how-file-charge-employment-discrimination  Or go to the SC Human Affairs Commission website. https://schac.sc.gov/employment-discrimination/how-file-employment-complaints.

However, if you are bringing a claim under the Rehabilitation Act, you do not need to meet these prerequisites, but you can not recover damages for emotional distress under this Act.