What do do When You Face Discrimination at Work

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Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In this episode, I will briefly recap Title I of the Americans with Disabilities Act (Title I) before discussing steps you should take in case you face discrimination at work.

If you have any comments or questions about this episode, you can complete the contact form on the Demand Our Access website, or you can email me at Jonathan@DemandOurAccess.com.

For more information about Title I, visit the page called ADA Title I Information.

If you are concerned as to how recent political events will affect the ability of people with disabilities to have concerns of discrimination addressed by the federal government, I will be covering that in the next episode. That episode will be live on ACB Community on Saturday, December seventh at 2:00 PM EST. It will be posted to Demand Our access shortly after it is presented live.

As I have said several times before, there is no way to cover this kind of material without using words like "impaired" that many of us in the disability community don’t use. I’m using words like "impaired" here because those are the words used in the law.
Whether we like it or not, when communicating about the law we are required to use terms that are outdated. Maybe someday the ADA will be revisited and the updated law will provide for meaningful enforcement and be written in modern language. For now, we have to discuss the law as it has been written.

Briefly Recapping Title I

Our brief recap of Title I is based on the rules defining compliance with Title I as set forth by the Equal Employment Opportunity Commission (EEOC) in 29 C.F.R. § 1630. To make this presentation easier to follow, I’m not going to mention the exact citations to different sections of the Code of Federal Regulations. If you are interested in the citations, you can find them in the episodes where I discussed Title I.

I decided that the term "covered entity", while used in the Code of Federal Regulations, may be too confusing for people just learning about Title I. So, I have decided to replace the term "covered entity" with the term "employer". While I’m doing this to make the presentation easier to follow, it must be remembered that not all employers are covered by Title I; for example, if an employer employs fewer than 15 employees that employer is not covered by Title I.

If you heard either of the episodes where I discussed Title I in greater detail, some of this will be review for you. I have included what I believe are some of the most important things to know about our rights under Title I here so if someone listens to this episode prior to listening to the episodes on Title I, some of the information they will need is here.

Important Concepts

• For an employer to be covered byTitle I, it must have at least 15 employees.
• The United States government is not subject to the provisions of Title I; however, Section 501 of the Rehabilitation Act of 1973 provides similar protections for federal positions.
• To be clear, state and local governments are covered by Title I. If you work or you are interested in working for a state or local government, what I am covering here applies to you.
• Private membership clubs (excluding labor organizations) are not covered by Title I.
• Religious institutions are covered by Title I. But they may give preference to people of their religion.
• Members of the clergy and people perform essentially religious functions are excluded from the protections of Title I.

Discrimination Prohibited

It is unlawful for an employer to discriminate on the basis of disability against a qualified individual in regard to the following:

1. Recruitment, advertising, and job application procedures
2. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring
3. Rates of pay or any other form of compensation and changes in compensation
4. Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists
5. Leaves of absence, sick leave, or any other leave
6. Fringe benefits available by virtue of employment, whether or not administered by the employer.
7. Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities and selection for leaves of absence to pursue training
8. Activities sponsored by an employer, including social and recreational programs
9. Any other term, condition, or privilege of employment

The term "discrimination" under Title I includes but is not limited to the acts described in 29 C.F.R. 1630.4 through 29 C.F.R. § 1630.13. Again, visit the page ADA Title I Information to learn more.

Contractual or Other Arrangements

It is unlawful for an employer to participate in a contractual or other arrangement or relationship that has the effect of subjecting the employer’s own qualified applicant or employee with a disability to the discrimination prohibited by Title I.

Contractual or Other Relationship Defined

The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with an employment or referral agency, labor union, including collective bargaining agreements, an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

The requirement that employers not discriminate through contractual arrangements or other relationships is important because of the number of relationships employers typically enter into that affect employees; for example, when an employer signs a contract whith a third party to manage the benefits the employer provides its employees, anything covered by that contract must be accessible. If an employer contracts with a third party for the use of an online portal where employees are to manage the benefits of their employment, the portal must be accessible.

Relationship or Association with a Disabled Person

It is unlawful for an employer to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.

The provision providing protections for those who have a relationship with a disabled person typically arises when an employer knows the family member of an employee has a disability requiring expensive health insurance. If the employer fires the employee to avoid the cost of their family member’s health care, the employer has violated Title I.

Not Making Reasonable Accommodations

• It is unlawful for an employer not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
• It is unlawful for an employer to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such employer to make reasonable accommodation to such individual’s physical or mental impairments.
• An employer shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act.
• An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.
• An employer is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the actual disability prong or the record of a disability prong under the definition of disability. Someone who is regarded as having a disability is not entitled to reasonable accommodations under Title I.

Retaliation and Coercion

Retaliation

It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by Title I or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision contained in Title I.

If you face discrimination at work, the retaliation provision is important because it protects any coworkers who tell the truth about the discrimination you are facing.

Coercion, Interference, or Intimidation

It is unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of, or because that individual aided or encouraged any other individual in the exercise of, any right granted or protected by Title I.

This means an employer cannot bully you to prevent you from advocating for the rights you have under Title I.

What to do When you Face Discrimination at Work

A Note About Me

I am not going to share everything about my situation now, but I believe you should know that I was recently laid off by my former employer. One of the reasons I believe I was laid off is their inability to accommodate me. Since I have been facing discrimination since I began working for them in March of 2018, I have been following the practices outlined below for years. Because I have documented much of the discrimination I have faced, I believe I have a good chance at having the EEOC determine that my former employer discriminated against me based on my status as a disabled person. I will provide more details of the discrimination I faced in future episodes.

Things to do as Soon as You Apply

Here are things every employee and job applicant with a disability should remember:

• Discrimination does not need to be intentional.
• Since most employers are not familiar with their responsibilities under Title I, my advice is to prepare as if you will face discrimination.
• When something does not work as you think it should, save all related emails and documents.
• If things are not going well, do as much of your communicating with your boss or human resources in writing.
• If your boss or human resources schedules a meeting with you to discuss something related to an accommodation, confirm your take-aways from the meeting in writing.
• If someone says something that sounds like discrimination, confirm what they said in writing.
• If you are part of a union, report the discrimination you are facing to a shop steward.
• At the first sign of trouble, don’t run to the EEOC.
• Don’t wait too long to run to the EEOC.

Let’s unpack some of these points.

Intentionality

This may be hard for some to understand, but I believe we are better off assuming we will face discrimination at some point and preparing to defend ourselves if it happens. As I said before, discrimination under Title I does not need to be intentional to be discrimination. This does not mean you should be expecting everyone to constantly discriminate against you; instead, the idea of preparing to defend yourself against discrimination is an acknowledgment that most employers are not familiar with their responsibilities under Title I. Even if an employer has no intention of discriminating, they may do so accidentally. Whether the discrimination you face is intentional or not, it is still discrimination. When you face discrimination, you have a right to have your discrimination remedied.

Save Related Information

There are many ways people communicate at work. Whether it be through email, Teams chats, or the sharing of documents, and more, there are many ways workplace communications are sent. How you communicate at work depends a lot on choices made by your employer. No matter how you communicate at work, you should develop a strategy for keeping communications that address any potential discrimination you face at work.

As soon as I started working for my previous employer, I knew there was going to be trouble. Critical online tools employees are expected to use were not accessible. Most employee trainings were not accessible. Almost no one working in human resources had any idea of my rights as a disabled person under Title I.

Understanding these realities and accepting that I may someday face discrimination that would be so severe that I would need to file with the EEOC, I began keeping all emails related to the discrimination I faced. I kept the emails I believed I would need by forwarding them to my personal email and moving them to a special folder in my personal inbox. When I wound up having to file with the EEOC, I had dozens of emails and documents going back more than six years to prove the discrimination I had faced.

Communicate in Writing

As often as you can, you should get important things related to potential discrimination put in writing. If someone tells you why a certain accommodation cannot be provided, send them an email as close to the meeting’s ending as you can summarizing what you believe were the key points they made during the meeting. Ask them nicely to confirm whether your summary of the meeting is accurate. Tell them if they do not correct anything, you will proceed as if your understanding of the meeting is agreed to by them. By telling them no response will be considered an acceptance of your summary, you increase the chances that important information will be available in writing for you to use to strengthen your complaint.

Tell Your Union

If you are lucky enough to be a member of a union, you should reach out to your union when you are facing discrimination at work. Union’s have many tools such as unfair labor practices, grievances, and appeals to civil service review boards that may be able to help resolve your discrimination. Even better, the union will provide assistance and, where possible, may even fund actions that could help you.

Every contractual relationship between a union and an employer is different. But if you are a member of a union, there is a good chance your union may be able to help.

My union has filed unfair labor practices against my employer, they have also filed with the Civil Service Review Board, and they organized a show of support at an employer-sponsored picnic. In short, my union has been a stong supporter of me and is strongly advocating on my behalf.

Don’t Run to the EEOC

For many reasons, filing a complaint with the EEOC and/or a state or local agency that accepts complaints under Title I should not be the first thing you do when you face discrimination at work. Here are some of the reasons why this kind of complaint should not be filed right away:

• Filing an external complaint really escolates the tension between you and your employer.
  *Filing too early prevents you from putting together a stronger case if you wind up needing to file.
• The EEOC and its local partners take a long time to investigate.
• In most cases, the EEOC will not represent your if you wind up needing to sue your employer.

Don’t Wait Too Long to File

In my case, I waited too long to file my complaint with the EEOC. I had, what seemed at the time, good reasons for waiting. But had I filed earlier, I don’t believe there is any chance my former employer would have taken the illegal actions it wound up taking to terminate me when it had no grounds to terminate me. I say that because had my former employer been under an ongoing investigation for the consistent discrimination it subjected me to, it would have been extremely unlikely to commit even more violations that would immediately be scrutanised by the EEOC.

Deciding When to File

On one hand, I have told you not to file too quickly. On the other hand, I have told you not to wait too long to file. So, how do you decide when is the right time for you to file an external complaint against your employer? The answer is that you should file an external complaint against your employer when it becomes obvious to you that no internal action is available that may reduce the discrimination you are facing.

Here are questions to ask when determining whether it is time for you to file an external complaint:

• Does your employer have a policy for how it will address requests for accommodation made under Title I?
• Is anyone trained on the policy for addressing accommodations requests under Title I?
• What happens when you file a request under Title I?
• If things aren’t going well, does your employer have an internal complaint procedure?
• Have you tried to use your employer’s internal complaint procedure?
• Did your employer’s internal complaint procedure result in actions being taken to reduce the discrimination?

If your employer has no procedures for how it will address requests for accommodation made under Title I, things are unlikely to get much better. If you file an internal complaint about the discrimination you are facing and going through the process does nothing to materially reduce the discrimination you are facing, it is unlikely any additional internal processes will result in change.

Going through an internal complaint process that results in no meaningful change in your circumstances is a great way to show discrimination if you wind up filing with the EEOC or a relevant state or local agency.

Final Thoughts

Abelism is alive and well. Through ableism, we often face discrimination. The workplace, because most of us have difficulty finding work, is often a place where we face discrimination. The purpose of this episode isn’t to scare people. Nor is it intended to make you feel like every employment setting will be hostile. The purpose of this post is to be very frank about the reality of disability discrimination in the workplace and to hopefully help some of you begin to figure out how you will address the discrimination you are facing on the job.

Far from suggesting you file with the EEOC a week after you being a new job, I hope you will take from this episode the need to be realistic about the discrimination you may face at work. If you begin saving emails and documents that could be used if a complaint is eventually filed, you will be glad you were prepared. In the meantime, showing proof of the discrimination you are facing could encourage your employer to do better–reducing the chances that you will need to file an external complaint.

Simply put, once things don’t feel right you should begin preparing as if things will go very badly. But before you take the huge step of turning your employer in to an external agency to investigate, you should work within the systems, such as they are, that have been established by your employer. The more internal steps you take to resolve the discrimination you are facing, the better the chance you will never need to file. If you wind up filing, your efforts to resolve the discrimination internally will really add to your case.

Conclusion

Thanks for listening to this episode of the Demand Our Access podcast. I really appreciate your support.

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