Employers must treat qualified employees or job applicants, regardless of disability, fairly. It is unlawful to treat employees unfavorably due to any disability. Unfortunately, disability discrimination in Colorado happens. It could be a supervisor or a co-worker creating a hostile work environment. It does not matter who is causing it; what matters is that an employee feels discriminated against in the workplace based on his/her disability. When this happens, employers must take action.
At The Workplace Counsel, our employment lawyers based in Denver understand the complexities of the federal Americans with Disabilities Act (ADA) and the Colorado Anti-Discrimination Act (CADA), and will protect employer's rights. Contact us at 303-625-6400 to schedule a consultation and to learn more about legal options.
What Constitutes Disability Discrimination?
Disability discrimination occurs when a person who suffers from a disability is treated less favorably as an employee or a job applicant due to that disability. Disability discrimination also occurs when a person is treated differently due to their association with a person with a disability.
The federal Americans with Disability Act (ADA) became law in 1990. In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) became law. The ADAAA clarifies the scope and definition of disability under the ADA.
In Colorado, the Colorado Anti-Discrimination Act (CADA) also prohibits discrimination on the basis of disability.
What Is a Disability?
Disabled employees entitled to protection under the law must be qualified for the job and have a disability defined by the ADA and/or CADA. A disability can be established in one of three ways:
- The employee has a physical or mental condition, and it substantially limits a major life activity. Examples of major life activities include walking, seeing, and hearing.
- The employee has a history or record of a disability (mental or physical impairment) that substantially limited a major life activity, even though the employee may not have the disability now. An example of this type of disability is cancer––an employee had cancer but is now in remission.
- The employee is regarded as having an impairment, which means he/she does not have a disability but is treated by an employer as having one.
Examples of Qualifying Disabilities
- Bipolar disorder
- Cerebral palsy
- Depression (severe)
- HIV infection
- Loss of limb(s)
- Multiple sclerosis
- Muscular dystrophy
- Post-traumatic stress disorder (PTSD)
Examples of Non-Qualifying Disabilities
Simply having a medical condition or mental health issue will not always constitute a disability for the purposes of disability discrimination complaints or claims. Examples of conditions that do not generally constitute an impairment in terms of the ADA include:
- Compulsive gambling
- Psychoactive substance use disorders (as a consequence of illegal substance abuse)
- Sexual behavior disorders
Examples of Disability Discrimination
Disability discrimination can take various forms. Some common examples are described below.
A disabled employee should have the same access to areas around the office as other, non-disabled employees. An employee in a wheelchair, for example, should be able to maneuver around the same as everyone else and access all areas of the office available to other employees.
When an employer leaves areas inaccessible and, thus, fails to comply with the ADA, disability discrimination claims arise.
Failure to Provide Reasonable Accommodations
If an employee requires an accommodation to effectively perform their job that would not be an undue hardship on the employer, the employer should generally provide the accommodation. For example, if an employee is partially deaf and cannot hear well in a noisy environment and requests a workspace in a quieter area, the employer should provide them with a new workspace when possible.
When an employer fails to provide a reasonable accommodation, a disability discrimination claim may arise.
A disabled employee's disability should never be the subject of office jokes or teasing. For example, an employee who is blind should never be made fun of due to their loss of vision.
Jokes, however, do not have to be specific to the employee's disability but relevant to disabilities in general. If there's a pattern of jokes or teasing in the office, a hostile work environment may be created and the employer may be liable for disability discrimination.
Loss of Promotion
An employer cannot pass an employee over for a promotion if he/she has a disability or if he/she is close to someone with a disability. For example, an employee has a child with a disability and finds out that the reason they were not promoted is that their manager thought it would be too much responsibility for someone with a disabled family member.
This failure to promote on this basis may qualify as disability discrimination.
What Should Employers Do to Prevent Disability Discrimination?
While there may be differences in how disability discrimination is treated in the workplace in different states, there are steps that all employers should take to prevent it from happening.
All employers should provide training for employees, including those in leadership. Training should include federal, state and local laws on what is considered disability discrimination. It should be administered to all new hires.
Training, however, should not be a one-time event. The training should be reviewed on a regular basis so that it complies with any changes in the law or with all new rules and regulations.
Companies should create policies that address disability discrimination and clarify what is not allowed. There should also be a procedure in place to file a complaint. All complaints should be addressed and when appropriate, discipline should be administered.
Contact an Employment Law Attorney Today
At The Workplace Counsel, our employment law lawyers based in Denver understand how challenging disability discrimination matters can be for employers. We will help you take responsible and comprehensive steps to make sure you are handling employees with disabilities correctly. Contact us by filling out the online form or calling us at 303-625-6400 to schedule a consultation and to learn more about legal representation.