Disability Discrimination and Employment Decisions

Disability discrimination occurs when an employer or other entity covered by Title I of the Americans with Disabilities Act (ADA) (which protects private and state and local employees) or the Rehabilitation Act (which protects federal employees) treats a qualified employee or applicant unfavorably because of disability.  The disability laws forbid 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.

Definition of Disability

The ADA directs that the definition of disability is construed broadly, in favor of extensive coverage, to the maximum extent permitted by the law. Nonetheless, not everyone with a medical condition is protected from disability discrimination. Under the law, a person has a disability if the person:

• Has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function, such as brain, musculoskeletal, respiratory, circulatory, or endocrine function).
• Has a history of a disability.
• Is subject to an adverse employment action because of a physical or mental impairment the individual actually has or is perceived to have, except if it is transitory (lasting or expected to last six months or less) and minor.

A medical condition does not need to be long-term, permanent, or severe to be substantially limiting.  Also, if symptoms come and go, what matters is how limiting the symptoms are when they are active.

Reasonable Accommodation and Undue Hardship

When job applicants or employees request job modifications, the disability laws require employers in the private, federal, and state and local government sectors to provide reasonable accommodations (changes to the ways things are usually done) to employees and job applicants who have or had an impairment that substantially limits a major life activity, unless doing so would cause undue hardship for the employer. A reasonable accommodation can help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.  

Some possible reasonable accommodations could be making the workplace accessible for wheelchair users, providing a reader or interpreter for someone who is blind or hearing impaired, making a schedule change, granting telework, allowing leave for disability-related treatment or symptoms, or reassignment to a vacant position where reasonable accommodation is not possible in the current job.

An employer doesn't have to provide an accommodation if doing so would cause undue hardship to the business.  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, however, just because it involves some cost. An employer does not have to provide the accommodation the employee or job applicant wants, as long as it provides an effective reasonable accommodation.  If more than one accommodation effectively meets the disability-related needs, the employer may choose which one to provide

Disability-Related Questions, Medical Exams, and Confidentiality

The law places limits on employers when it comes to asking job applicants or employees to answer disability-related questions, take a medical exam, or identify a disability.  Information that employers may obtain about employees’ disabilities must be treated as confidential.

During Employment Application & Interview Stage 

An employer may not ask a job applicant to answer disability-related questions, such as if they have a disability, or require them to take a medical exam, before extending a job offer. 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.

After A Job Offer

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering disability-related questions and/or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions and/or take the exam.  An employer may only revoke the job offer if the information reveals the individual cannot safely perform the job (even with reasonable accommodation, if entitled to it).

After Employment Starts

Once an employee is hired and has started work, an employer generally can only ask disability-related questions and/or require a medical exam if the employer needs medical information to support an employee's request for an accommodation or if the employer has objective evidence that an employee is not able to perform a job successfully or safely because of a medical condition.

Confidentiality

The law also requires that employers keep all medical records and information confidential and in separate medical files.

Harassment

It is illegal to harass an applicant or employee because of a current or past disability an actual or perceived physical or mental impairment that is not transitory and minor, or for association with an individual with a disability. Harassment can include offensive remarks about a person's disability. 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). Unlawful harassment may occur whether the harasser is 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.

Retaliation and Interference

Job applicants and current and former employees are protected from retaliation for asserting their rights under the ADA and any of the other federal equal employment opportunity laws.  Speaking out about or exercising rights related to workplace discrimination is called “protected activity” and can take many forms, including complaining to a supervisor about harassment.  Witnesses who seek to assist individuals affected by discrimination are also protected. 

The ADA also prohibits interference with an individual’s ADA rights.  Employers may not intimidate, threaten, or otherwise interfere with a job applicant’s or current or former employee’s exercise of ADA rights.  For instance, it is unlawful for an employer to use threats to discourage an individual from asking for a reasonable accommodation or to pressure them not to file a disability discrimination complaint.

Association

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 the employee’s spouse has a disability.

Although the federal anti-discrimination laws don't require an employer to provide a reasonable accommodation to an employee to care for a family member with a disability, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA.

Available Resources

Return to the EEOC Disability-Related Resources page.