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you believe you have been denied or deprived of
a job, a place to live or a government service,
on account of discrimination against you, because
you have a brain injury, you should strongly consider
filing a complaint with the federal EEOC within
180 days and seek advice from the EEOC staff or
from an organization that advises people of their
rights under the ADA. Details for contacting the
EEOC are listed below. |
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AMERICANS WITH DISABILITIES
ACT [ back
to Resources ]
Data collected by our federal government during the 1990s shows
that disabled people have an unemployment rate of 70%, as compared
to the unemployment rate of non-disabled people which rarely
reaches or exceeds even 7%. The unemployment rate among disabled
people with a TBI was found to be 94%. There is no question
that many barriers (both intended and unintended) exist to employment
of people with disabilities, including people with a TBI. One
legislative effort by the Congress with potential to improve
the situation is the Americans with Disabilities Act (ADA). |
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The ADA is a federal civil rights statute enacted in
1990. The ADA guarantees equal opportunity for persons
with disabilities in four areas. These are: securing and
maintaining employment as well as the terms, conditions
and privileges of employment; access to and use of all
places of public accommodation (such as housing, stores,
restaurants, movie theatres, sports arenas and museums);
access to and use of telecommunications devices and systems;
and obtaining the benefits of state and local government
services, programs and activities. The ADA does not apply
to the federal government, which is covered by Section
504 of the Rehabilitation Act of 1973. Under the ADA,
all employers with 15 or more employees (other than the
federal government) are covered and are required to follow
its non-discrimination provisions.
Some states have passed their own version of the ADA.
California's version is found in its Government Code at
Sections 12926 and 19702. State versions of the ADA may
cover employers with fewer than 15 employees. In Alaska,
an employer with just 1 employee is covered. In addition
to private employers with 15 more more and state/local
government entities, the ADA applies to labor organizations,
labor-management committees and employment agencies.
ADA violations should be brought promptly to the attention
of the nearest field office of the EEOC (Equal Employment
Opportunity Commission) which requires filing of a complaint
within 180 days of the violation. Under state versions
of the ADA there may be a longer filing period with the
state department of fair employment, but this should be
carefully checked in the particular state where the employer
is located. In 1995 and again in 2000, the EEOC issued
a printed booklet called a "Guidance" to let
covered employers know what questions they can and cannot
ask job applicants and how they may or may not respond
to information they acquire about an existing employee's
disability. This booklet is a free publication obtainable
by anyone, including job applicants or existing employees
with a disability.
The beneficiaries of the ADA are people with disabilities;
people with a record of having had a disability in the
past (e.g. a person who used to be addicted to narcotics);
and non-disabled people who are regarded as having a disability
(e.g. someone with HIV, morbid obesity or facial disfigurement
from burns). The ADA forbids discrimination (unequal treatment)
against people with a disability. The ADA defines "disability"
as a physical or mental impairment that substantially
limits a major life activity. Substantially limits means
the person cannot perform the activity at all or is significantly
restricted in performing it as compared to the general
population. Major life activities include such basic functions
as thinking, learning, seeing, hearing, speaking, breathing,
walking, self-care, performing manual tasks and interacting
with others.
In the preface to the ADA, in the findings and purpose
section, Congress wrote that there are 43 million Americans
with a mental or physical disability and the number is
growing as our population ages. Congress also wrote that
historically people with disabilities have been isolated,
segregated and discriminated against in employment, housing,
public accommodations, education, transportation, communication,
recreation, health services, voting and access to public
services. The ADA was passed as remedial legislation to
remove barriers erected through conscious and unconscious
discrimination against people with disabilities, so they
could enjoy full participation in our society and its
economy.
What conditions represent mental and physical impairments
covered under the ADA? Courts have found that diseases
of the heart and lung as well as cancer, arthritis and
osteoporosis are "physical impairments" covered
under the ADA. Courts have found that certain learning
disorders and psychiatric disorders are "mental impairments"
covered by the ADA. Merely feeling stressed or merely
having difficulty working in stressful situations does
not constitute a covered mental disability. There must
be an underlying physical or mental impairment that makes
ordinary workplace stress intolerable and precludes employment
without reasonable accommodation. Courts have found that
personality traits, sexual orientation, pregnancy and
aging are not covered impairments. Appellate courts in
different jurisdictions are in conflict over whether particular
conditions such as carpal tunnel syndrome constitute a
covered disability. The US Supreme Court recently ruled
that carpal tunnel syndrome is not a covered disability
if it only precludes performing certain tasks on the job
and does not make it difficult to carry out activities
of daily living like brushing one's teeth.
In California, by statute, certain listed conditions qualify
as "mental disabilities" if they substantially
limit one or more major life activities. These are mental
retardation, organic brain syndrome, emotional or mental
illness or a specific learning disability. See, California
Government Code Sec. 12926(i)(1). California has its own
Fair Employment and Housing Act that covers a much broader
array of disabilities, those that merely limit (rather
than substantially limit) a major life activity. Under
California's FEHA, when determining whether a person is
disabled, the court may not consider the mitigating effect
of medications or devices the person uses to treat or
manage his medical condition (such as taking Dilantin
for seizures).
With regard to employment the ADA does not protect all
disabled persons. Rather it protects disabled persons
who are qualified to do the "essential tasks"
of the job with or without reasonable accommodation. The
essential tasks of a job are those which are fundamental
not marginal to the job. If you can perform the essential
tasks of a job (with or without reasonable accommodation.)
an employer cannot refuse you employment just because
you have a disability.
To accommodate a person otherwise qualified to do the
job who has a disability, requires the employer to find
way to modify the environment, procedures, training or
hours of work, to make the workplace accessible to, and
its facilities and equipment usable by, that person. Further,
the employer must make the accommodation. within a reasonable
time. Taking a year or more to make it is not reasonable,
as some courts have ruled.
Making the accommodation. is often not nearly as hard
or as disruptive as employers contend, and may simply
require some old fashioned creativity. For instance, a
person with migraines triggered by bright light or loud
noise could be given a quiet, dimly lit office. A person
who cannot type but can do the cognitive work required
by the job, could be given a computer with voiceware that
transcribes and prints what he says aloud. Accommodation.
does not always require expenditure of funds. It may be
as simple as job sharing, telecommuting or modifying work
schedules. The ADA does not require accommodation. without
regard to financial limits. It requires "reasonable
accommodation." and allows employers to oppose making
accommodations where the accommodation. would be so expensive
as to create an "undue hardship."
During the job interview an employer may not ask an applicant
if he is disabled and an applicant is not obligated to
volunteer that information. The employer may not ask about
the job applicant's genetic background or workers' compensation
claim history. However, if the applicant requests accommodation.
so that he can participate effectively in the job evaluation
process, the employer may ask for medical proof of disability
if such disability is of the hidden not the obvious type
(like a paraplegic in a wheelchair or a blind person with
a white cane and dog). Once the job applicant or employee
puts the employer on notice that he wants a reasonable
accommodation. for his disability, the employer must make
a legitimate and good faith effort to comply. The employer
can do this through "an interactive process designed
to determine the appropriate accommodation." In practice,
this requires the employer to ask the employee how the
disability impedes his job and how the employer could
rectify the situation through reasonable changes. The
employer may also consult with ADA experts on how to comply.
However, the employer cannot respond by ignoring the request
for accommodation. or by demoting, transferring or firing
the employee. If the employee perceives the employer is
not making a good faith effort to comply and files a discrimination
complaint with the EEOC or state equivalent, the employer
may not retaliate by firing the employee and if he does,
he will be subject to penalties under the ADA.
Traumatic Brain Injury (TBI) comes in varying grades of
severity and has different effects on different people
depending not just on the location and severity of the
initial damage to the brain, but also upon the victim's
genetics, age, gender, general health, previous history
of concussions, psychological condition, educational background,
employment background, quality of family support, quality
of medical and rehabilitative care, and so forth. Once
an employer knows his employee has a TBI, he cannot lump
him with all other brain injured persons and treat him
in a stereotyped fashion. Employers must look at each
person with a brain injury on an individual basis when
determining the appropriate accommodation. A person with
blurred vision could have someone read to them. A person
with right arm weakness, could have others carry things
for him. A person suffering from cognitive fatigue, could
be given more frequent rest breaks or work only in the
morning before they become too tired to continue. A person
who is easily distracted and thrown off task by interruption,
could be put in a quiet room, and could be given a variety
of prompts to keep him on track, such as computer reminders,
visual cues, checklists or frequent progress reviews.
There are limitations to the scope of ADA rights. Having
a covered mental impairment does entitle a qualified employee
to reasonable accommodation., but does not shield that
employee from the same discipline (including termination)
that would be meted out to any employee for disruptive,
menacing or violent behavior towards co-employees, managers
or clients of the business. The US Supreme Court has recently
ruled that ADA rights do not entitle a disabled person
to take a job ahead of a co-employee with vested rights
due to seniority.
If you believe you have been denied or deprived of a job,
a place to live or a government service, on account of
discrimination against you, because you have a brain injury,
you should strongly consider filing a complaint with the
federal EEOC within 180 days and seek advice from the
EEOC staff or from an organization that advises people
of their rights under the ADA. You may ultimately decide
to file a lawsuit for discrimination, and if so, you should
locate an attorney in your community who has solid litigation
experience with ADA claims and suits, and who is recognized
by his colleagues as a competent and effective professional
in that field of law. Some ADA lawyers specialize in "access"
cases involving physical barriers to entering or using
a building. Others specialize in employment cases. Some
handle both. Because of statutes of limitation, you should
avoid delay and seek professional legal advice at the
very earliest moment.
To contact the EEOC call 800-669-4000 (voice) or 800-669-6820
(TDD). For free advice on the ADA In California you can
contact Protection & Advocacy, Inc. at 800-776-5746.
For free advice on the ADA for violations committed in
Oregon, Washington, Alaska or Idaho, you can contact the
Northwest ADA/IT Center at 800-949-4ADA voice/TTY; E-mail
at nwada@ohsu.edu or log on to www.nwada.org. |
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