Disability harassment pertains to discriminatory actions, unfair requirements, and derogatory comments about people with physical and mental disabilities. Such behavior in the workplace is illegal and should never be tolerated.
The American Disabilities Act, as amended, protects disabled employees-whether the disability is physical or mental-from discrimination and harassment because of the disability. That protection extends into the workplace.
A disabled employee must be treated no differently than non-disabled employees. Acts to the contrary are illegal and actionable. Such detrimental behaviors include but are not limited to:
- Failure of the employer to make reasonable accommodation for the disability.
- Derogatory comments or actions from co-workers, subordinates, or superiors.
- Unfair performance evaluations without justifiable cause.
- Denial of promotion or advancement without reasonable cause.
- Denial of benefits due to a disability.
- Unfair or unequal treatment of a relative or spouse of a disabled person, to include all primary’s disability protection areas regarding the job.
The government determined that employers must make reasonable accommodations if a candidate or employee fills or can fill a job slot. The key is the word “reasonable.” The limitations an employer must take pivot on employer hardship-if it is too expensive or extensive or difficult for the employer to undertake.
Physical disability accommodation include access ramps, easy-open doors, larger stalls in restrooms, lower time punch clocks within easy reach, or voice recognition programs for computers, Braille print access programs, and the like.
It could also pertain to adjusted work schedules to allow regular medical treatment appointments, such as kidney dialysis, therapist appointments, chemotherapy, and the like. Sometimes, schedule accommodation might encompass a lateral transfer within the organization to a different position that would more easily adjust to an altered schedule.
Mental disability accommodation might be adjusted work schedules for therapy appointments or lateral transfers to adjust physical surroundings or sensory input.
When Harassment Occurs
If a disabled employee experiences continued, unwanted discriminatory actions or comments by others-whether co-worker, supervisor, subordinate, client or contractor, the act or acts should be reported immediately.
If the harassment continues, the victim should follow company procedures completely and unhesitatingly. If the victim finds no relief or if the harassment changes, additional action beyond the employer may be necessary. What action that is would depend on the employee. Choices include:
- Finding other employment.
- Seeking legal advice.
- Filing discrimination and/or harassment charges against the employer.
However, no action against the employer should be taken until the victim and/or employer take all reasonable attempts to resolve the situation.
Quote: “Another major difficulty for employers in this area is addressing whether an employee’s poor performance is the result of a disability, or rather an inclination to avoid performing one’s job duties.”
Source: Gavin S. Appleby Harassment and Discrimination: And Other Workplace Landmines
Entrepreneur Press Legal Guide Services
Quote: “Under a hostile environment, or disability theory, Title I would be violated if the employer’s behavior discriminated against the qualified employee because of his disability.”
Source: Peter David Blanck and David L. Braddock The Americans With Disabilities Act and the Emerging Workforce: Employment of People With Mental Retardation
Amer Assn on Mental Retardation
US Equal Employment Opportunity Commission; Disability Discrimination; http://www.eeoc.gov/laws/types/disability.cfm
University of North Carolina; School Law Bulletin, Summer 2002. “Disability Harassment: An Emerging Claim or an OCR Pipe Dream?” ©2002 by Carolyn Walker; found at: www.sog.unc.edu/pubs/electronicversions/slb/slbsum02/article1.pdf
US Equal Employment Opportunity Commission; “Facts about Americans with Disabilities Act.” Found at: http://www.eeoc.gov/eeoc/publications/fs-ada.cfm
US Department of Labor; Disability programs, found at: http://www.doleta.gov/disability/