Disability discrimination is a form of unequal treatment that people with disabilities may face in the workplace. According to the U.S. Equal Employment Opportunity Commission (EEOC), 36 percent of all charges filed with EEOC in 2020 were disability-based, making it one of the most common types of discrimination allegations.
If you believe you’ve faced negative attitudes, unfair practices, barriers to advancement or other discrimination because of a disability, you can take action. This article will help you better understand your options. First, we’ll explain what disability discrimination is and share examples of the different types of disability discrimination in the workplace. Then we’ll offer guidance on how to effectively address it.
What is disability discrimination?
Disability discrimination is unfair treatment that occurs when people with disabilities are treated less favorably than others in the workplace because of their disability. It not only violates the rights of employees with disabilities but also may harm their mental health and well-being.
This type of discrimination can take many forms, including exclusion from job opportunities, harassment, refusal of reasonable accommodations and unequal pay.
Types of disability discrimination in the workplace
While some types of disability discrimination are more overt—such as the outright refusal to hire or promote individuals with disabilities—discrimination can also be subtle, such as assumptions about an individual’s ability to perform certain tasks or fulfill job requirements.
Below, we explore the different types of disability discrimination that can occur in the workplace, providing examples of each and explaining how they violate the rights of individuals with disabilities.
Direct discrimination
Direct disability discrimination occurs when an employer treats an employee less favorably because of their disability. This type of discrimination is usually intentional and can take many different forms, including denial of a job, promotion or training opportunity solely because of an individual’s disability. It can also involve paying an employee with a disability less than other employees doing the same job, or subjecting them to harassment or a hostile work environment because of their disability.
Examples of direct discrimination based on disability include but aren’t limited to:
- Refusal to hire: This occurs when an employer discriminates against an individual with a disability, specifically because of their disability, during the hiring process. For example, a company refuses to hire a qualified candidate who is deaf solely because of their disability, despite the candidate being able to perform the essential functions with reasonable accommodation, such as a sign language interpreter.
- Refusal to promote: This is when an employer doesn’t promote an employee with a disability—even though they’re qualified for the position—because the employer believes the employee’s disability may prevent them from performing the job duties, despite there being no evidence to support this assumption.
- Derogatory remarks: This is a form of harassment when derogatory comments are made to or about the person with a disability. For example, a supervisor repeatedly makes offensive remarks about an employee’s disability, creating a hostile work environment that causes the employee to feel uncomfortable and excluded from their team.
- Lower compensation: This occurs when an employer pays an employee with a disability less than their non-disabled counterparts for doing the same job, even though the disabled individual performs their job duties just as well as their colleagues do.
- Refusal to provide reasonable accommodation: According to Americans with Disabilities Act (ADA), a reasonable accommodation is any change to the application or hiring process, the job, the way the job is done or the work environment that allows a person with a disability who’s qualified for the job to perform the essential functions of that job and enjoy equal employment opportunities. Accommodations are considered reasonable if they don”t create an undue hardship or a direct threat to the employer or employer’s business. When an employer refuses to provide a reasonable accommodation—such as a specialized workstation or assistive technology—to an employee with a disability, the lack of accommodation makes it difficult or impossible for the employee to perform their job duties.
Indirect discrimination
Indirect disability discrimination, also known as disparate impact, occurs when an employer has a policy or practice that, on the surface, appears to apply equally to all employees—but in reality, it puts employees with disabilities at a disadvantage. Though this type of discrimination can be unintentional, it negatively impacts employees with disabilities.
Indirect disability discrimination can take many forms, such as a company’s dress code policy that requires all employees to wear specific types of shoes, which may disadvantage employees with certain types of disabilities who require specialized footwear. Similarly, a policy that requires all employees to work full-time may disadvantage employees with disabilities who require a part-time schedule as a reasonable accommodation.
Other examples of indirect disability discrimination in the workplace include but aren’t limited to:
- A company’s requirement that all employees be able to work long hours and lift heavy objects may indirectly discriminate against employees with certain disabilities that limit their physical abilities.
- A dress code policy that requires all female employees to wear high-heeled shoes may indirectly discriminate against female employees with certain disabilities (such as back pain or mobility issues) that prevent them from wearing such shoes.
- A company’s policy of not allowing employees to work from home may indirectly discriminate against employees with disabilities who require a flexible work environment as a reasonable accommodation.
- A recruitment process that only accepts written applications may indirectly discriminate against applicants with certain disabilities that limit their ability to read or write, such as dyslexia or visual impairments.
- A company’s use of videoconferencing for meetings with no alternative meeting options may indirectly discriminate against employees with hearing impairments who rely on lip-reading or sign language interpretation.
Harassment and retaliation
For people with disabilities, harassment in the workplace involves subjecting an employee to unwanted conduct based on their disability that creates a hostile or intimidating work environment, making it difficult or impossible for the employee to do their job.
Retaliation occurs when an employee with a disability faces negative consequences—such as demotion, termination or other forms of discipline—because they made a complaint or filed a claim related to disability discrimination.
Examples of harassment and retaliation in the workplace include but aren’t limited to:
- A supervisor repeatedly makes derogatory remarks about an employee’s disability (such as using a derogatory term for their disability), creating a hostile work environment that makes the employee feel uncomfortable and excluded from their team.
- An employee with a disability complains to their supervisor about a co-worker who repeatedly makes fun of their disability, and the supervisor takes no action to address the behavior, causing the employee to feel isolated and vulnerable.
- An employer terminates an employee with a disability shortly after the employee files a complaint about disability discrimination. The employer gives a pretextual reason for the termination, such as poor performance, even though the employee’s performance had been satisfactory.
- A company retaliates against an employee with a disability who requested a reasonable accommodation by assigning them to menial or undesirable tasks, taking away responsibilities or subjecting them to disciplinary action, causing the employee to feel undervalued and unsupported.
Failure to accommodate reasonable requests
This type of discrimination happens when an employer fails to provide reasonable accommodation to an employee with a disability.
A reasonable accommodation is any modification or adjustment to a job or workplace that would allow an employee with a disability to perform their job duties or enjoy the same benefits and opportunities as their non-disabled colleagues. Employers have a legal obligation to provide reasonable accommodations unless doing so would cause undue hardship or a direct threat to the business.
Examples of failure to accommodate reasonable requests in the workplace include but aren’t limited to:
- An employee with a visual impairment requests a screen reader software program that would enable them to access the company’s computer systems, but the employer refuses to provide it, even though the program wouldn’t cause undue hardship to the business.
- An employee with a physical disability requests an ergonomic workstation that would enable them to work comfortably and efficiently, but the employer denies the request, despite the workstation being reasonably priced and readily available.
- An employee with a mental health condition requests a flexible work schedule as a reasonable accommodation. But the employer denies the request, insisting that the employee work a traditional 9-to-5 schedule, even though the employee’s condition makes it difficult for them to adhere to such a schedule, and the employer accommodating a flexible work schedule wouldn’t cause undue hardship to the employer’s business.
- An employee with a hearing impairment requests a sign language interpreter for an important meeting, but the employer refuses to provide one, even though doing so wouldn’t cause the employer undue hardship.
- An employee with a mobility impairment requests a designated parking spot close to the building entrance, but the employer denies the request, insisting that the employee park in the regular parking lot with everyone else, even though the distance to the entrance makes it difficult for the employee to get into the workplace.
Who qualifies as a worker with a disability?
In the United States, a worker with a disability is defined by the Americans with Disabilities Act as an individual who:
- Has a physical or mental impairment that substantially limits one or more major life activities, such as seeing, hearing, walking, standing, sitting, thinking, communicating or caring for oneself.
- Has a record of such an impairment, such as a history of cancer, that substantially limited a major life activity, even though the person doesn’t currently have a disability.
- Is regarded as having such an impairment, even if they don’t have an impairment that substantially limits a major life activity. For example, an employer may perceive an individual as having a disability based on stereotypes or assumptions, such as assuming that an individual who wears hearing aids can’t perform a job that involves phone calls, even though this may not be true.
How do you prove discrimination based on disability?
To prove that your employer is discriminating against you based on a disability, you need to demonstrate the following:
- You have a disability, as defined by the law. This may involve providing medical documentation or other evidence of your impairment.
- You were qualified for the job or opportunity in question. You had the necessary skills, experience and qualifications to perform the essential functions of the job or to participate in the opportunity.
- You experienced adverse treatment. You’ve been denied a job or promotion or have been subjected to harassment or other forms of discrimination because of your disability.
- The adverse treatment was based on your disability and not on some other factor, such as your performance or behavior.
- There was no legitimate reason for the adverse treatment other than discrimination based on your disability.
Document any incidents of discrimination against you and collect evidence, such as emails, documents, witness statements or other evidence, that demonstrates discriminatory behavior or practices.
How to file a complaint of disability discrimination with your employer
If you believe that you’ve experienced disability discrimination in the workplace, you may wish to file a complaint with your employer. Here are some steps you can take:
- Know your rights: Before filing a complaint, it can be helpful to familiarize yourself with the laws that protect individuals with disabilities from discrimination in the workplace, such as the Americans with Disabilities Act.
- Document the discrimination: Keep a record of any derogatory remarks, denials of reasonable accommodations or other discriminatory actions that you experience. Also collect as much evidence as possible, such as emails, documents, witness statements or other evidence that demonstrates discriminatory behavior or practices.
- Review your employer’s policies: Check your employee handbook or similar materials to determine if there’s a formal complaint process.
- Talk to your supervisor or human resources: Consider discussing your concerns with your supervisor or HR representative. They may be able to help you file a complaint or provide guidance on the complaint process.
- File a written complaint: If you aren’t able to resolve the issue informally, you may need to file a written complaint with your employer. This complaint should include a description of the discrimination you experienced, the date(s) it occurred and any evidence you have to support your claim.
- Follow up: After filing a complaint, follow up with your employer to ensure that it’s being addressed in a timely and appropriate manner.
How to file an ADA complaint with the government
If you’re unsatisfied with the outcome of your complaint, you may want to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), or the DOJ Civil Rights Division. The steps for this are:
- Fill out the complaint form: These forms can usually be found on the agency’s website.
- Provide supporting documentation: This may include a description of the discrimination you experienced, the date(s) it occurred and any evidence you have to support your claim. You may also want to include any documents or correspondence you have with your employer related to the discrimination.
- Submit the complaint: File the completed complaint form and any supporting documentation with the appropriate agency. The EEOC allows you to file your complaint online, by mail or in person at an EEOC office, while the DOJ allows you to file your complaint by email, mail or fax.
- Wait for a response: The agency will investigate your claim and provide a response. This may include a request for additional information, an invitation to participate in mediation or an investigation into your complaint. If the agency isn’t able to resolve the claim, they may issue you a right-to-sue letter.
- Consider legal action: If you’re unsatisfied with the outcome of the complaint process, you may want to consider seeking legal advice or pursuing legal action against your employer.
- If you filed a charge of disability discrimination with the EEOC, you need to receive a Right to Sue letter from the agency in order to sue your employer. You may also request a Right to Sue letter from the EEOC before the conclusion of its investigation if you wish to file a lawsuit. The Right to Sue letter shows that you’ve exhausted your administrative remedies for the discrimination and gives you permission to file a lawsuit in state or federal court. There’s a 90-day time limit for filing a lawsuit after receiving a Right to Sue letter.
- If you filed with the DOJ, you won’t receive a right-to-sue letter, however, filing a complaint with the DOJ is often a prerequisite for filing a lawsuit for disability discrimination.
When to talk with a lawyer
If you’ve experienced disability discrimination in the workplace and your employer hasn’t adequately addressed your concerns, you may want to talk to a lawyer experienced in disability discrimination cases.
Some situations where it may be appropriate to talk to a lawyer include:
- You’ve been subjected to repeated discrimination or harassment based on your disability, and your employer hasn’t taken appropriate action to address the issue.
- You’ve been retaliated against for reporting discrimination or for participating in an investigation or complaint process.
- Your employer has refused to provide reasonable accommodations.
- You’ve been wrongfully terminated or demoted based on your disability or in retaliation for reporting discrimination.
- You have received a right-to-sue letter.
A lawyer can help you understand your legal rights and options, provide guidance on the best course of action and represent you in legal proceedings, if necessary.
Sofie is a writer. She lives in Brooklyn.
