The federal law prohibiting discrimination against an applicant or employee is known as the Americans with Disabilities Act (ADA) or the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).
To be covered by the ADA/ADAAA, an employer must employ 15 or more employees.
ADA Protections & Provisions
The ADA/ADAAA makes it unlawful for public or private employers, employment agencies, licensing agencies, and unions to refuse to hire, to fire, or otherwise discriminate against any individual in compensation or the terms or conditions of his/her employment based on the individual’s actual or perceived disability. It further prohibits harassment in the workplace based on an individual’s actual disability, and makes it imperative for an employer to provide reasonable accommodations to disabled employees.
The Americans with Disabilities Act (ADA) also prohibits acts of retaliation taken against an individual because that individual opposed disability discrimination or harassment in the workplace.
What is a “Disability” Under ADA
Under the ADA/ADAAA, a “disability” is defined three ways:
- An “actual disability”: a physical or mental impairment that substantially limits on or more “major life functions”;
- A “record of” disability: a record of a physical or mental impairment that substantially limits one or more major life functions; or
- “Regarded as” disabled: an employer treats an individual’s actual or perceived impairment is a disability, although it may not technically qualify as a “disability.”
Under ADA, an employer is prohibited from taking an unlawful action against an individual based on any of these defined forms of “disability.”
Reasonable Accommodations Under ADA
Under the ADA/ADAA, employers have an affirmative duty to accommodate disabled individuals in the workplace if the accommodation would aid the individual in his/her ability to perform the essential duties of the job. The accommodation must be reasonable and must not be an undue hardship on the employer.
In determining what accommodation is “reasonable,” the employer and employee must engage in an interactive process and discuss options and alternatives.
Remedies Available Under ADA
If an individual is successful at trial and it is found by a judge or jury that the individual was the victim of unlawful disability discrimination, harassment, or retaliation under the ADA/ADAAA, that individual is entitled to recover his/her back pay (lost wages), attorney fees and costs, and out of pocket expenses (for example the out-of-pocket cost of insurance if benefits were lost). Reinstatement (getting his/her old job back) is also available.
Compensatory damages (pain and suffering) and punitive damages (monetary punishment levied against the employer for discriminating) are available through the Americans with Disabilities Act; however, an individual is not entitled to such damages.
Compensatory damages are subject to the following monetary caps, based on the number of employees employed by the defendant-employer:
- Up to 100 employees: $50,000
- 101 – 200 employees: $100,000
- 201 – 500 employees: $200,000
- 500+ employees: $300,000
Compensatory and punitive damages are not available in retaliation cases brought under the Americans with Disabilities Act.
Statute of Limitations
Before filing in an ADA/ADAAA claim in federal court, an individual must start his/her employment disability discrimination, harassment or retaliation case in an administrative agency – the Department of Workforce Development – Equal Rights Division (ERD) or the Equal Employment Opportunity Commission (EEOC). The individual must also first secure a Notice of Right to Sue letter from the EEOC.
From the date that the Notice of Right to Sue is received, an individual has 90 days to file a federal complaint. Thus, if the Notice is dated December 30th, but you do not receive it until January 2nd, your federal complaint must be filed within 90 days from January 2nd (April 2nd). If the federal employment complaint is not filed within the 90 days, it is barred and the individual loses his/her claim under ADA.
View the full text of the Americans with Disabilities Act, with the changes made by the Americans with Disabilities Act Amendments Act of 2008 incorporated.