Disability Discrimination in the Workplace
The Americans with Disabilities Act, as Amended ("ADA"), and the Arizona Civil Rights Act ("ACRA") require employers with 15 or more employees to provide "reasonable accommodations" to employees with a qualifying "disability." The ADA and ACRA define a "disability" as any physical or mental impairment that substantially limits one or more of a person's major life activities. Common examples of major life activities include walking, sitting, standing, running, breathing, speaking, hearing, and thinking.
When an employee claims to have a disability and requests an accommodation, employers must meet and confer with the employee to discuss the employee's situation. A "reasonable" accommodation depends on all of the facts and circumstances involved. The employer must consider such things as the amount of time that the employee will need the accommodation and the resources needed to provide the accommodation. If there are certain job duties an employee can no longer perform (i.e., lifting heavy objects), it may be reasonable to assign those tasks to another employee. Employers are not required to provide an accommodation that would pose an "undue burden."
Employers must also take steps to prohibit its employees from making inappropriate comments about the employee's disability, even if those comments are made "off duty." If inappropriate comments are sufficient to create a "hostile work environment" and the employer fails to take prompt remedial action, the employer can be sued for disability discrimination. Generally, offhand jokes and isolated comments are not sufficient to create a hostile work environment, unless the comments are extremely offensive or frequently made. Courts evaluate the totality of the circumstances, including whether a supervisor or a co-employee made the comments, how often the comments were made, and what affect it had on the victim's ability to perform their job.
Consequences For Failing To Comply
Employers can be required to pay the employee's lost wages, damages for emotional distress, damage for harm to reputation, attorney's fees, and punitive damages. To avoid a costly lawsuit, employers should have a zero-tolerance policy with respect to harassment and should take prompt remedial action as soon as they become aware of possible harassment. Employers should also consult with counsel before denying an accommodation.
Jeffrey A. Silence is an attorney at Jaburg Wilk that focuses his practice in employment law and represents both employers and employees navigate these and other difficult issues.