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a project of

Are You Protected?

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
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
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.
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
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
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
Many states also have laws that
make it illegal to discriminate
against people with disabilities.
6. Who enforces the law?
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
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
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
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

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
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?
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
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
Do you have a disability which would interfere with your ability to perform the
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
15. Can I be asked about my disability in a job
An employer cannot ask you if you have a
disability or for any details about your
They can ask you if can do the job. And can
you do the job with or without
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
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
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
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
reasonable accommodation
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
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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