We fill the communication gap between representative/lawyer and client by working on a set-fee basis, not an hourly rate, and by giving unlimited time to research and to discuss the facts and issues. Our goal is to assure each client that he or she has someone in their corner at all times and that the arguments presented are accurate and comprehensive. We keep all parties on the same page.

That's what Due Process Advocacy is all about: preserving the right to be heard and to have relevant facts considered.

Saturday, November 18, 2017

Discrimination and Filing a Complaint With the EEOC

If you believe you have a claim for disability discrimination, you should file a complaint with the United States Equal Employment Opportunity Commission (EEOC) as soon as possible. There are time limitations which are all too often missed.

Without missing your deadline for filing, I suggest that you take the time to read up on the Laws which protect your rights in the workplace, even if you hire an Attorney. Be an informed client.

Read the Sections on Prohibited Practices and Policies, and the Discrimination By Type which the EEOC prohibits. Gather all of your notes, emails, tapes, videos, and documents on the actions and people who you think have discriminated against you, and write a detailed timeline summarizing all the misconduct, with dates, times, place, and any other facts.

Betsy Combier
Editor, Advocatz.com
President, Advocatz
betsy@advocatz.com

Disability Discrimination

Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. Learn more about the Act at ADA at 25.
Disability discrimination also 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).
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer ("undue hardship").
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.
Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The protections are mostly the same.

Filing With the EEOC

If you believe that you have been discriminated against at work because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information, you can file a Charge of Discrimination. A charge of discrimination is a signed statement asserting that an employer, union or labor organization engaged in employment discrimination. It requests EEOC to take remedial action.
All of the laws enforced by EEOC, except for the Equal Pay Act, require you to file a Charge of Discrimination with us before you can file a job discrimination lawsuit against your employer. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity. There are time limits for filing a charge. The laws enforced by the EEOC require the agency to notify the employer that a charge has been filed against it.
A Charge of Discrimination can be completed through our EEOC Public Portal after you submit an online inquiry and we interview you. Filing a formal charge of employment discrimination is a serious matter. In the EEOC’s experience, having the opportunity to discuss your concerns with an EEOC staff member in an interview is the best way to assess how to address your concerns about employment discrimination and determine whether filing a charge of discrimination is the appropriate path for you. In any event, the final decision to file a charge is your own.
If you have 60 days or fewer in which to file a timely charge, the EEOC Public Portal will provide special directions for quickly providing necessary information to the EEOC and how to file your charge quickly. Or, go to https://www.eeoc.gov/field/index.cfm and enter your zip code for the contact information of the EEOC office closest to you.
The laws enforced by the EEOC require the agency to accept charges alleging employment discrimination. If the laws do not apply to your claims, if the charge was not filed within the law’s time limits, or if the EEOC decides to limit its investigation, the EEOC will dismiss the charge without any further investigation and notify you of your legal rights.

With A State or Local Agency

Many states and local jurisdictions have their own anti-discrimination laws, and agencies responsible for enforcing those laws (Fair Employment Practices Agencies, or FEPAs). If you file a charge with a FEPA, it will automatically be "dual-filed" with EEOC if federal laws apply. You do not need to file with both agencies.
Note: Federal employees and job applicants have similar protections, but a different complaint process.

Disability Discrimination & Work Situations

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Disability Discrimination & Harassment

It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or 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 he does not have such an impairment).
Harassment can include, for example, offensive remarks about a person's disability. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Disability Discrimination & Reasonable Accommodation

The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
While the federal anti-discrimination laws don't require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA. For more information, call: 1-866-487-9243.

Disability Discrimination & Reasonable Accommodation & Undue Hardship

An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer's size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

Definition Of Disability

Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
  • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
  • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
  • A person may be disabled if he 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 he does not have such an impairment).

Disability & Medical Exams During Employment Application & Interview Stage

The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

Disability & Medical Exams After A Job Offer For Employment

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

Disability & Medical Exams For Persons Who Have Started Working As Employees

Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee's request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.

Available Resources

In addition to a variety of formal guidance documents, EEOC has developed a wide range of fact sheets, question & answer documents, and other publications to help employees and employers understand the complex issues surrounding disability discrimination.

The ADA Amendments Act

Veterans with Disabilities

The Questions and Answers Series

Mediation and the ADA

HIV/AIDS and the ADA

The following documents were developed by the U.S. Department of Justice.
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