Labor: Disability law can force employers to discriminate

The ADA sometimes mandates that a covered employee receive preferential treatment

Employment law is full of inconsistencies. And that is what makes it fun, right? Well, there’s a particular “inconsistency” that exists in the laws that apply to qualified individuals with a disability relative to the employment laws with which most employers are more familiar. 

Indeed, it has been ingrained in the minds of employers that they must treat all of their employees consistently and equally, and that they cannot discriminate against employees because of their inclusion in a protected class. For example, Title VII of the federal Civil Rights Act proscribes discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin[.]” Similarly, the federal Age Discrimination in Employment Act prohibits employers from discriminating “because of such individual’s age[.]” Then along comes the world of disability law, in which these commonly held notions of “I can’t discriminate” and “I must treat everyone the same” are blown away.

The primary disability law is the federal Americans with Disabilities Act (ADA), though employers should consult other federal, state and local laws as well. For present purposes, it is the ADA’s requirement that employers “discriminate” that is critical here. The law is not that employers should—or can—treat covered individuals negatively, or worse than non-disabled individuals, but rather, that employers must treat them and their situations differently, that is, perhaps better than non-disabled individuals in some respects.

The ADA generally describes a disabled individual as one who has “a physical or mental impairment that substantially limits one or more major life activities of such individual[.]” The law also protects those with “a record of such an impairment” and who are “regarded as having such an impairment.” An employer cannot, however, just assume that one is disabled or not based simply on the name of the condition, or how others with that condition might be affected by the same condition. Instead, employers must make the determination of whether one has a disability on an “individualized basis.”

The ADA also imposes a unique accommodation requirement, which means that, when an employer is on notice that a covered individual needs or requests a reasonable accommodation to perform the essential functions of the job, the employer must engage in an informal interactive process with the individual to clarify what he or she needs, and what accommodation may be appropriate and effective. Sometimes that requires that a covered employee get different, even preferential treatment, than other employees in your workplace. As one Court of Appeals has made clear:

"In race and sex employment discrimination cases, discrimination is usually proved by showing that employers treat similarly situated employees differently because of their race or sex. However, the very purpose of reasonable accommodation laws is to require employers to treat disabled individuals differently in some circumstances[.]” [Emphasis in original.]

Even the U.S. Supreme Court has acknowledged that “[b]y definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially.” For example, such preferential treatment might mean that the employer may have to forego enforcing a blanket “100% healed policy” by performing an individual assessment as to whether an impairment prevents that employee from completing his job at a 100 percent level before returning to work. Other potential accommodations that may be reasonable under the circumstances include giving priority consideration to a covered individual over equally qualified non-disabled applicants for placement into vacant positions, restructuring the non-essential functions of a job that other non-disabled individuals with the same title have to perform, and modifying schedules and workplace policies that other non-disabled individuals must comply with.

So the bottom line is that sometimes you have to treat your employees the same, and sometimes you have to treat them differently. Got it? You should consult an employment attorney to help navigate when and to what extent a reasonable accommodation may be appropriate for a particular individual, and consult a doctor to alleviate the stress from trying to figure this all out.

Contributing Author

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Michael Schmidt

Michael C. Schmidt is a member of Cozen O'Connor and practices in the firm’s Labor & Employment Group. He concentrates in representing management in...

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