Attig Law Firm P.L.L.C.

These are some of the questions that are most commonly asked in our initial consultations. Hopefully, they are helpful to you in understanding the rights of disabled workers.

Before reading the questions and answers below, it is important that you understand a couple general themes of the law of discrimination in the workplace.

First, this area of the law is loaded with "legal terms of art" - these are, generally speaking, words that seem simple to understand to a lay person, but have special meaning to lawyers and judges. We try to define some of those legal terms of art here, but these definitions can never take the place of having competent legal representation by your side throughout the process.

Second, very few employees actually successfully prove disability discrimination - not because it doesn't exist, but because the legal community has developed a very mechanical approach to analyzing claims of disability discrimination. In other words, lawyers and judges get caught up in the legal terms of art, the proofs, the elements, the exceptions and forget to look at what is really happening. So as you read the questions and answers below, if you start to feel lost in the complicated nature of the law, you're not alone. Hopefully, the Americans With Disabilities Amendments Act of 2008 will remove some of the mechanical analysis of the rights of our nation's disabled workforce.

Finally, the discussion below can never take the place of competent legal counsel. The discussion below is meant to be a primer so that you can more easily understand and confidently discuss the complex law of discrimination as it applies to disabled employees. What appears below is not legal advice. Contact a lawyer that has experience representing employees who have been the victim of disability discrimination.

What rights do I have as a disabled worker?

Am I protected if I am not disabled, but my employer treats me as though I am?

What is disability discrimination?

What do I have to show to prove disability discrimination?

What is a "prima facie" case of disability discrimination?

What do I need to show to prove that I am a member of the protected group of disabled employees?

What is an adverse action?

How do I show nexus between my status as a disabled employee and an adverse action?

What is a reasonable accommodation?

What if I associate with individuals with disabilities - does the ADA offer any protection?

Do I have to be disabled to be the victim of disability discrimination?

How much does an attorney for a disability discrimination cost?

Can I recover my attorney fees if I win?

What rights do I have as a disabled worker?

As a disabled worker, you are entitled to a workplace free of disparate treatment based on your status as a disabled worker. You are entitled to a reasonable accommodation of your disability, if your disability prevents a barrier to the workplace that is not an "undue hardship" for the employer to remove.

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Am I protected if I am not disabled, but my employer treats me as though I am?

Generally, yes. If your employer perceives you to be disabled, or regards you as disabled (whether or not you actually are), then you are entitled to a workplace free of disparate treatment due to the employer's perception that you are disabled. In other words, if the employer considers your medical condition to be a disability and takes some sort of adverse action against you based on that perception, you may have a viable claim of disability discrimination. If your employer perceives you to be disabled - and you are not - then you are not entitled to a "reasonable accommodation".

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What is disability discrimination?

There are, generally speaking, three ways that an employer can discriminate based on a disability.

The first is by enacting a rule or policy that, while not discriminatory on its "face", has a greater negative impact on disabled employees; this kind of discrimination is rare - but it does not require proof that your employer intended to discriminate against you. This is called disparate impact discrimination.

The second is by treating a disabled employee differently (and most likely, less favorably) than a non-disabled federal employee. This is called disparate treatment discrimination.

The third is by failing to accommodate a employee who is a "qualified individual with a disability" - so long as that accommodation will not place an undue hardship on the employer.

The fourth is by creating a workforce that is permeated with hostility towards disabled individual(s). This is called hostile work environment discrimination. While it is what most victims of discrimination feel, it is often the hardest legally to prove.

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What do I have to show to prove disability discrimination?

Generally speaking, to prove to judge or jury hat you have been treated differently because of your membership in a protected group, you have what is called the "burden of proof".

Unless you have direct evidence of discrimination (the rare smoking gun), the disabled worker must prove their case by "circumstantial evidence". In other words, you must convince a judge or jury to infer discrimination where there is no smoking gun.

To prove disability discrimination using circumstantial evidence, the employee must first prove a "prima facie" case of discrimination. Once you a "prima facie" case of discrimination, the Employer must persuade the Judge or jury that they had a "legitimate, non-discriminatory reason" for the action they took. If they do persuade the Judge or jury of the legitimacy of their action, then the employee has the burden of proving that the Agency's legitimate non-discriminatory reason is a pretext - a smoke-screen - for discrimination.

The Employee's burden of proof is, generally speaking, a "preponderance of the evidence". I'll spare you the legal definition - the best way to describe it is that it is one feather more than 50%.

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What is a "prima facie" case of disability discrimination?

A "prima facie" case of disability discrimination is the first step in what is known as the McDonnell-Douglas burden-shifting analysis. "Prima facie" generally means "at first look" or "at first appearance". Generally, the "prima facie" case is the same for most legal claims of discrimination. First, you must show that you are a member of the protected group, in this case, a disabled worker. Second, you must show that you suffered an "adverse action". Third, you must show some surface nexus between the first two elements.

Most claims fail at this stage, either because the Complainant could not show the basic nexus required, or, more typically, because there was no adverse action. An adverse action is something that, essentially, affects the terms or conditions of employment.

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What do I need to show to prove that I am a member of the protected group of disabled employees?

Generally, you must show that you have an impairment which substantially limits a major life activity, and that you are able to perform the essential functions of a job, or broad class of jobs, with or without an accommodation.

You may also, in some cases, be required to prove that you are "otherwise qualified" - in other words, even if you meet the above definition, it is highly unlikely that a blind job applicant will be hired on in a position requiring vision (driving a truck or bus, for example).

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What is an adverse action?

The legal bar and courts dispute this element of the prima facie case quite often. Employers and their attorneys tend to argue that the only adverse actions are things that affect your pay - termination, suspension without pay, and the like. Employees and their attorneys tend to argue that an adverse action is anything that alters the terms and conditions of employment. Whether or not you have suffered an adverse action in a disability discrimination claim requires individualized analysis, and you should consider contacting an attorney that has experience in disability discrimination claims.

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How do I show nexus between my status as a disabled employee and an adverse action?

There are many ways to show a causal connection between the fact that an employee is disabled and an adverse action taken by an employer. Generally, it is easier to prove the nexus element if your boss and other supervisor know that you have a medical condition that substantially limits a major life activity. Other than that, establishing this element is not a topic that can be summarized in a paragraph on a website. Consider contacting an attorney that has experience in disability discrimination claims.

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What is a reasonable accommodation?

If a Federal employee is found to be a qualified individual with a disability, his/her Agency is required to enter an "interactive process" to discuss a reasonable accommodation. In other words, the Agency is supposed to sit down with the federal employee and help to find a way to remove the barrier that prevents him or her from performing their work. This can include adjustments to the federal employee's work environment, to the federal employee's work itself, and/or to the federal employee's work schedule. As long as the accommodation is reasonable, the Agency is required to provide it.

If, however, the Agency feels that the accommodation creates an undue hardship on them, or the Agency feels like they have to alter the essential functions of the federal employee's job, they are likely to resist accommodation. Just because the Agency resists accommodation doesn't mean they are right. However, there are far more arguments supporting a denial of a reasonable accommodation than there are arguments that require a reasonable accommodation. Once again, unfortunately, the federal employee has the uphill fight. Be sure to contact a lawyer familiar with the EEOC process for federal employees if you feel that you are entitled to a reasonable accommodation for a disabling medical condition.

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What if I associate with individuals with disabilities - does the ADA offer any protection?

Generally, again, yes. This is one of the lesser known, and least litigated, claims of disability discrimination. It was originally designed to protect two broad classes of employees: 1) friends and family of victims of HIV/AIDS, and 2) friends and family of those diagnosed with other chronic and terminal medical conditions.

While the situation is slowly improving, there used to be a strong sense in the workplace that if you hang around with individuals with HIV/AIDS, then you must be either gay, lesbian, or have the condition yourself. This false fear motivated the firings of many individuals over the past 20-30 years just because an employee was friends with or hung around with, someone diagnosed with HIV or AIDS. As such, the "association provisions" of the ADA were designed to ensure that employees - who weren't disabled - weren't fired because of the employer's unreasonable fears and stereotypes about certain illnesses.

This provision also provides great protection to family members of individuals who are diagnosed with chronic and terminal medical conditions such as various forms of cancer, multiple sclerosis, Alzheimers, etc. These conditions require intensive treatment, often with family members at their side; these provisions help protect employees from getting fired or adversely affected in the workplace because they spend a lot of time assisting a loved one with long-term medical care for a chronic or terminal condition.

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Do I have to be disabled to be the victim of disability discrimination?

In a word, no. If you are not disabled, but your employer treats you like you are, then you may be protected by the ADA and Rehab Act because you are "regarded as" disabled. In some cases, you may be protected under the ADA just because you are closely associated with disabled individuals. This happens most often in cases where a federal employee has cancer or HIV/AIDS. These are not always disabling conditions, but if the Agency treats a Federal employee as if (s)he is disabled because (s)he has cancer, or because a federal employee's best friend at work has HIV and the boss assumes the employee does too, then the federal employee may have "perceived disability" status.

This is an interesting twist in the law; the ADA was designed not only to remove barriers from the workplace in favor of disabled individuals, but also to remove or limit the "stigma" associated with certain disabling and non-disabling medical conditions.

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How much does an attorney for a disability discrimination cost?

The Attig Law Firm, PLLC, charges the following fees in disability discrimination cases.

First, we may charge a small consultation fee to evaluate your case and determine if you and the Firm have a mutual interest in an attorney-client relationship.

Second, if we decide to work together, we often represent disabled employees on a "contingent fee" basis. This means that your legal costs and attorney fees will be paid as a percentage of any settlement or judgment or jury award in your case. In some cases, we may charge a small engagement retainer to assist the Firm in initial costs (obtaining legally sufficient medical records, etc.)

Third, in our Federal employee cases, we will charge an engagement retainer, and/or hourly rates. The reason that our fee structure for Federal employees is different is twofold. First, the Federal Employee pre-suit complaint process is very lengthy, time-consuming, and requires a good deal of hands-on attorney involvement. Second, the Federal Government - despite the fact that Congress has declared the Fed to be the "Model Employer" for disabled employees - is one of the most ruthless litigators in the EEOC Administrative Process. For Federal Employees, I will need to discuss your case with you in depth before we can set up a fee structure that works for you and for the Firm.

For your convenience, the Firm accepts checks, money orders, cashier checks, and all major credit cards (Mastercard, Visa, American Express, and Discover).

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Can I recover my attorney fees if I win?

Maybe. In some situations, an employee may be able to recover the attorney fees, costs and expenses that were incurred. Because the answer to this question depends on the remedy received in your discrimination claim, and in what forum you achieved that result, and whether you worked for a private corporation or the Federal Government, it cannot be completely answered here.

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