Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

1

PENNSYLVANIA EMPLOYMENT

DISCRIMINATION - DEFINING DISABILITY BASED DISCRIMINATION

“If you are a disabled employee it is imperative that you understand your rights in the workplace. If you are an employer you need to understand the law as well as your duties and

obligations with regard to disabled workers.”

Charles Curley Pennsylvania Employment Attorney

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

2

Not all that long ago it was perfectly legal to discriminate against a disabled

individual in the workplace. An employer was under no obligation to

accommodate a disabled worker on the job. All too often, disabled workers who

did find employment were compensated at considerably lower rates of pay than

their non-disabled counterparts. Fortunately, that all began to change during the

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

3

Civil Rights movement of the 1960s. Since then, both state and federal laws have

been implemented that specifically prohibit discrimination in the workplace based

on the disability, or perceived disability, of an applicant or employee. Today

about one-third of all non-institutionalized individuals with a disability are actively

working in the U.S. with another ten percent actively seeking employment. If you

are a disabled employee it is imperative that you understand your rights in the

workplace. If you are an employer you need to understand the law as well as

your duties and obligations with regard to disabled workers.

DEFINING “DISABLED”

To be protected from discrimination in the workplace based on a disability you

must first meet the definition of “disabled” found in the American with Disabilities

Act, or ADA. According to the ADA, you are considered disabled if any of the

following apply:

You have a physical or mental condition that substantially limits a major life

activity (such as walking, talking, seeing, hearing, or learning).

You have a history of a disability (such as cancer that is in remission).

You are believed to have a physical or mental impairment that is not

transitory (lasting or expected to last six months or less) and minor (even if

he does not have such an impairment).

In addition to meeting one of the above disability “tests”, the ADA requires that

you currently have, have a record of, or be regarded as having a substantial, as

opposed to a minor, impairment. A substantial impairment is one that

“significantly limits or restricts a major life activity such as hearing, seeing,

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

4

speaking, walking, breathing, performing manual tasks, caring for oneself,

learning or working.”

WHAT LAWS PROTECT DISABLED WORKERS?

In the United States workers are protected from discrimination in the workplace

by both federal and state laws. At the federal level, disabled workers are

protected by the Americans with Disabilities Act, or ADA, which prohibits

discrimination in any aspect of employment based on disability. At the state level,

the Pennsylvania Human Relations Act, or PHRA, also protects disabled

workers. Specifically, the PHRA makes it illegal for an employer to discriminate

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

5

based on “any non-job related handicap or disability or the use of a guide or

support animal because of the blindness, deafness or physical handicap of any

individual or independent contractor.”

HOW IS EMPLOYMENT DISABILITY DISCRIMINATION DEFINED?

If you are disabled, you undoubtedly know when an employer, or prospective

employer, is discriminating against you. For purposes of filing a claim against the

employer, however, it is important to know how the law defines employment

discrimination based on disability. According to the Equal Employment

Opportunity Commission, or EEOC, disability based employment discrimination

occurs when:

“a covered employer or other entity treats an applicant or employee less

favorably because she has a history of a disability (such as cancer that

is controlled or in remission) or because she is believed to have a

physical or mental impairment that is not transitory (lasting or expected

to last six months or less) and minor (even if she does not have such an

impairment).”

EXAMPLES OF DISABILITY BASED DISCRIMINATION IN THE WORKPLACE

As a disabled worker you may have already experienced employment

discrimination in a variety of situations. Unfortunately, employment discrimination

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

6

based on disability can take place in all aspects of employment, including, but not

limited to:

• The recruitment or application process for employees

• The hiring process

• Starting wages and raises

• Job assignments

• Direct and indirect job related benefits

• Promotions and advancement

• Firing and lay offs

IS IT REALLY DISCRIMINATION -- CAN YOU PERFORM THE JOB?

Sometimes, people are quick to claim “discrimination” when a disabled worker is

passed over for a position or job. If you find yourself in a position where you

suspect you have been discriminated against based on your disability, be sure to

ask yourself whether you are actually able to perform the functions of the job or

position first. Employers are prohibited by law from discriminating against a

disabled job applicant or employee; however, the law does not require an

employer to hire, retain, or promote a disabled worker if the worker cannot

actually perform the job functions necessary for the position. You must be

qualified to perform the job functions with or without reasonable accommodations

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

7

in order to pursue a claim for employment discrimination based on your disability.

The question to ask yourself is this: If the employer provided reasonable

accommodations could you perform the job? If yes, and the employer passed

you over for the position any, it is possible you are the victim of disability based

employment discrimination. If the answer is no, the inquiry stops right there.

If you believe you are the victim of employment discrimination it is imperative that

you consult with an experienced Pennsylvania employment law attorney as soon

as possible. Only an attorney can review your unique set of facts and

circumstances and advise you what legal options you have. In addition, please

refer to the companion article in this series for additional information about

applying for a job with a disability hat covers the topics of “reasonable

accommodations”, “undue hardship”, and “prohibited inquiries and examinations.”

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

8

U.S. Equal Employment Opportunity Commission, Disability Discrimination

U.S. Equal Employment Opportunity Commission, The ADA: Your Employment

Rights as an Individual with a Disability

U.S. Equal Employment Opportunity Commission, Questions and Answers:

Promoting Employment of Individuals with Disabilities in the Federal Workforce

Cornell University, Disability Statistics

Pennsylvania Human Relations Commission, The Pennsylvania Human

Relations Act

Pennsylvania Employment Discrimination – Defining Disability Based Discrimination curleyrothman.com

9

About Curley & Rothman, LLC

Curley & Rothman, LLC is a boutique firm of

commercial lawyers serving clients ranging from

individuals to Fortune 500 corporations in

Pennsylvania and New Jersey. We provide

clients with experienced, skilled, and honest

advice and representation in commercial and

business-related legal matters. Our mantra is

"Relentless Representation" and we hold to it.

We are determined to do everything possible to

provide you with the competitive edge you need to win.

At the Conshohocken law firm of Curley & Rothman, LLC, we understand your time and

resources are valuable, so we will not waste them by agreeing to represent you in a case in

which you cannot prevail. If we agree to take your case, it is because we are confident we can

come up with winning strategies for you. Contact us now by calling 610-834-8819 to schedule

your free consultation today.

Spring Mill Corporate Center

1100 East Hector Street

Suite 425, Conshohocken, PA 19428

www.curleyrothman.com

Phone: 610-834-8819

Fax: 610-834-8813