Facing Discrimination on the Job An Autism NOW webinar presented by Self-Advocates Becoming Empowered Self-Advocates Becoming Empowered Are You Protected? Facing Discrimination on the Job Time: Friday, August 22, 2014 from 2:00 to 3:00 PM EST Speakers: AJ Rubin, Supervising Attorney, Disability Rights Vermont Chester Finn, Council Member of President Obamas National Council on Disability and Client Assistant, New York State Office for People With Developmental Disabilities Max Barrows, Regional Representative for Self-Advocates Becoming Empowered and Outreach Director of Green Mountain Self-Advocates Self-Advocates Becoming Empowered Autism NOW Webinar: Are You Protected? Facing Discrimination on the Job This is an excellent opportunity to find out: how to recognize and respond to discrimination in the workplace disability disclosure: how to do it and why it is important what your rights are as a person with a disability when dealing with discrimination This presentation features legal advice from Disability Rights Vermont. Get useful information first-hand from Self-Advocates on steps you can take when facing discrimination in the workplace. Speakers Max Barrows AJ Rubin Chester Finn 1. What laws protect people with disabilities against employment discrimination? The Americans with Disabilities Act makes it illegal to discriminate against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. The Rehabilitation Act, makes it illegal to discriminate on the basis of disability in programs funded by Federal Government. 2. Who is considered to have a disability under the law?
Today according to the ADA the term "disability" means Has a physical or mental impairment that substantially limits one or more major life activities; A record of such an impairment; Being regarded as having such an impairment 3. What does it mean to be a "qualified person with a disability?" If you have a disability, you must also be qualified to do the job. You can use accommodations but for example if you want to be a nurse, you need have the required training to be a nurse. There are two things to keep in mind: You must fulfil the requirements for the job, such as have the education, experience, skills or licenses that are needed. You also must be able to do you job with or without help. 4. What are the most common types of job discrimination that you see as a lawyer? Treating you different Paying you less for the same job Teasing you or harassing you Treating you like you cant do your job when you really can Asking about your medical condition in an interview If any of these things have happened to you on the job, you may have suffered disability discrimination. If you have a disability and are qualified to do a job, there are federal and state laws protecting you from job discrimination, harassment, and retaliation on the basis of your disability. 5. Which employers are covered by the law? The ADA applies to all employers with 15 or more employees. Many states also have laws that make it illegal to discriminate against people with disabilities. 6. Who enforces the law? http://www.eeoc.gov/employees/charge.cfm If you believe you have been discriminated at work you can file a charge of Discrimination against your employer by contacting the Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission is the agency of the federal government responsible for investigating charges of job discrimination related to disability discrimination but most states also have their own agencies that enforce state laws against discrimination. 7. What if my employer does NOT know I have a disability? Am I protected?
If you want to be protected by the ADA you have to tell your employer that you have a disability. To protect your rights speak up before you have a problem. Dont wait until after you are fired. That will be too late. If you think you will need a reasonable accommodation when applying, tell the employer so that you are protected by the ADA if you are not accommodated. 8. I have heard advocates use the term essential job function What is an "essential job function?" Essential functions are the necessary job duties. What you must be able to do on your own or with the help of a reasonable accommodation. An employer can refuse to hire you if you cannot perform these duties on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you, however, because your disability prevents you from performing duties that are not essential to the job. An employer is not required to reallocate essential functions of a job as a reasonable accommodation. 9. What is a "reasonable accommodation?" It is an adjustment or modification that enables you to do the job. Examples of reasonable accommodations Getting shown how to do your job instead of things in writing Working less hours Having someone help you if you have any issues Have a job coach Getting moved to a different, open job that you can do
10 a. What are the steps to request a reasonable accommodation.
Let the employer know in writing and can be requested in a face-to-face conversation or using any other method of communication You do not need to mention the ADA or use the phrase reasonable accommodation. An employer cannot ignore you request. BUT this does not mean they are required to provide the change. If you are experiencing difficulty asking for an accommodation you should contact your local Protection and Advocacy organization.
10 b. When is my employer required to give me an accommodation? Make the request and then you and your employer should discuss your needs. A conversation is helpful to answer questions especially if what you need and why may not be obvious. It also can be helpful to work with your employer together to identify what accommodations might work. There are also many agencies like Vocational Rehabilitation that can help. Where more than one accommodation would work, your employer is allowed to choose the one that is less costly or that is easier to provide. Your employer may also ask you for additional documentation describing your disability and why the requested accommodation is needed, especially when your disability or need for accommodation are not obvious. 11. Can I be charged or paid a lower salary to cover the cost of the accommodation? No. However if the cost is an undue hardship (which basically means it is too much to ask your employer to pay for), then you must be given a choice to pay for it yourself. 12. What if my employer thinks the accommodation would be too expensive? An employer is not required to make an accommodation if it requires "significant difficulty or expense. Some of the factors include: the nature and cost of the accommodation the financial resources of the employer (a large employer may be expected to accept greater expenses than a small family business) the size and structure of the workforce It is not easy for employers to prove that an accommodation is an undue hardship just based on it costing too much. Other sources of money for making accommodations may be available, including tax credits or deductions and vocational rehabilitation funds. 13. What are examples of questions that an employer cannot ask on an application or during an interview?
Examples of prohibited questions during the pre-offer period include: Do you have a heart condition? Do you have asthma or any other difficulties breathing? Do you have a disability which would interfere with your ability to perform the job? How many days were you sick last year? Have you ever filed for workers' compensation? Have you ever been injured on the job? Have you ever been treated for mental health problems? What prescription drugs are you currently taking? 14. May the employer ask me these type of questions after they hire me? YES but only if they ask these questions to all the other people who they hire to do this type of job. 15. Can I be asked about my disability in a job interview? An employer cannot ask you if you have a disability or for any details about your disability. They can ask you if can do the job. And can you do the job with or without accommodations. An employer can also ask you to tell them or to show them how you would do the job, with or without reasonable accommodation. 16. Can I be forced to take a physical or medical exam? Before you are hired you cannot be required by an employer to take a medical examination. The employer can require you to have the exam after you are hired ONLY if that is a requirement of everyone else they hire for this type of job. 17. What if I need an accommodation to apply for a job? Yes, you are entitled to reasonable accommodations when you are applying a job. You need to ask the employer so you will be protected by the ADA if you are not accommodated in the application process.
18. I have an obvious disability. Can an employer ask me medical questions during an interview? No, an employer cannot ask questions about your even if they recognize that you have a disability.
19. Lets say I get a job and the employer had me get a medical examination. The they find out I have epilepsy. Can the employer change his mind and decide not to hire me? The employer cannot withdraw the job offer solely because they found out you have a disability during a medical exam. But do remember that they can withdraw the job offer if it turns out you cannot do the job with or without support.
Questions for Chester Finn Do you have any other advice for people out there who have been discriminated against? How can we reduce stereotypes like fear and miss-information about the cost of accommodations among businesses around hiring people with disabilities? What can people do to prevent job discrimination in the work environment? 20. Can an employer refuse to hire me because they believe that I might get hurt or they think that because of my disability it could be unsafe for me to do the job? An employer can refuse to hire you only if they think there is a significant risk of harm to you or others. But if an employer has concerns, he must get information to assess the level of risk and the nature of the harm. An employer cannot refuse to hire you based on a slightly increased risk, speculation about future risk, or generalizations about your disability. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation. 21. How would you handle this scenario? Paige works at a grocery store and is a cashier. Her disability prevents her from being able to stand more than 2 hours at a time, she ask her manager for a stool as an accommodation and the manager said The other cashiers dont have the luxury of sitting down on the job , so you cant have a stool! Is this discrimination? What should she do about it?
22. How would you handle this scenario? Kolby has autism and did not graduate from high school with a diploma. He applied for a landscaping job. He has training and experience training working as a landscaper. When he interviewed for the job he gave the employer a letter of reference. He did not get the job and the employer said it was because he did not graduate from high school. He doesnt really need a diploma to do that job. Is this discrimination? How should he handle it?
23. What steps should I take to deal with discrimination on the job? 24. If I get help and it turns out that my employer did discriminate against me because of my disability what will happen? What will my employer do to make it up to me? back pay hiring reasonable accommodation promotion reinstatement front pay emotional pain and suffering punitive damages other actions that will make an individual "whole" (in the condition she or he would have been but for the discrimination) Remedies also may include payment of: attorneys' fees expert witness fees court costs.
26. What financial assistance is available to employers to help them make accommodations? There are special tax credit available to help smaller employers make accommodations required by the ADA. For example they may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA. The credit is available for one-half the cost of "eligible access expenditures" that are more than $250 but less than $10,250. A full tax deduction, up to $15,000 per year, also is available to any business for expenses of removing qualified architectural or transportation barriers. Expenses covered include costs of removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles..
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