Prevent employment disability discrimination lawsuits before they happen to you by following the proper legal channels and steps. Disablity discrimination in the workplace can damage or destroy your business and/or it's reputation, so taking these laws very seriously should be a top priority for you and all your employees.

Prevent disability discrimination by noting the following steps:

1. Create a company policy regarding disability discrimination. The policy should comply with the Americans With Disabilities Act (ADA), a federal law designed to prevent employers from discriminating against a qualified employee/job applicant who has a disability.

2. If you already have a policy, check all existing company documentation and be sure that discrimination based on disability is included. If the ADA applies to your company, inform employees and potential new hires in your written company materials that reasonable accommodations will be made barring undue hardship.

3. Learn the basics of ADA law, when it applies to your company and/or situtation.

4. Understand where your liability is at risk. Assess what conduct is and is not permissible under the law. Know when the ADA applies to job interviews as well as employment, termination and benefits.

Action Steps
The best contacts and resources to help you get it done

Know whether the ADA policies on disability discrimination applies to your company

The ADA applies to businesses that have 15 or more employees. This includes full- and part-time employees. Employers who have multiple locations must count all the employees of the business.

I recommend: The Small Business Administration Office of Advocacy is a good start to find resources and information about the recent statistics and legal regulations concerning disability discrimination law. The U.S. Department of Justice's American with Disabilities Act website is a one-stop source for all the information you need about this law.

Know what questions are appropriate in the job interview to avoid discrimination in employment

Prior to making an offer of employment, you can ask applicants about ability to perform job functions. You can ask whether the applicant has the required qualifications or licenses to perform the job. You can ask how an applicant handles stress, and if the attendance requirements of the job are a problem for the applicant. You may NOT ask job applicants about whether the applicant has a disability or, (if it is obvious), how severe it is or if it will get worse. You cannot ask if an applicant has AIDS, asthma, nor can you ask whether the applicant has ever filed for workers' compensation. You cannot ask what prescription drugs an applicant is on. You cannot ask about prior mental health, drug addiction or alcohol problems. An employer may require a medical examination prior to hiring a potential employee, but only if the examination is job related and mandatory for all employees. Medical tests for illegal drugs are not considered medical examinations and are exempted from ADA's rules.

I recommend: Find out all about the ADA rules at the American Bar Association website. The U.S. Department of Education Office for Civil Rights also has a good Q&A on disability discrimination in public schools.

Understand what the ADA covers to define what your disability discrimination policies should cover

A disability is a physical or mental impairment that substantially limits one or more of a person's major life activities. It is important to follow the ADA rules, however, keep in mind the ADA protects those with serious, long-term conditions. It does not protect people with minor, short-term conditions. Simple broken bones and short illnesses such as the flu are not covered by ADA.

I recommend: Reading Disability Guidelines from the American Bar Association. The U.S. Department of Labor Office of Disability Employment Policy offers a great wealth of information also on disabilities versus non-ADA covered illness.

Understand 'Reasonable Accomodations' and 'Undue Hardship' under disability discrimination law

Reasonable accommodations are changes to a job situation which enble those with disabilities to participate in the process of applying for a job or to perform the job. Reasonable accommodations may include such things as part-time and modified work schedules, providing readers and/or interpreters, acquiring or modifying equipment used by the employee. Companies subject to the ADA must provide reasonable accommodation unless to do so would impose an undue hardship on the operation of the business. Undue hardship means the accommodation would require a great deal of difficulty or expense for the employer.

I recommend: The U.S. Department of Labor's site has lots of information on accommodation laws. The Equal Employment Opportunity Commission's (EEOC) site has good information on employee accommodation. The U.S. Department of Justice provides an overview of the ADA standards for accessible design.

Have written policies and job descriptions when creating disability discrimination company policies

A written job description allows you to list the essential functions functions of the job that an applicant must be able to perform. 'Essential functions' means abilities that are major (not minor) to the position. A job description that does not reflect the actual functions of the job is worse than useless in an employment lawsuit. Any physical requirements must be job-related and consistent with business necessity (you must be able to prove that the employee's ability to meet this criteria is necessary for completing the essential job functions.) This, combined with your written company policy, should place you on solid ground, provided your employees and hiring managers follow the guidelines.

I recommend: Cornell Cooperative Extension's Sample Essential Functions Worksheet. For other sample policies, see Bizmanualz or Business Owner's Toolkit.

Tips & Tactics

Helpful advice for making the most of this Guide

• •  Some accommodations can be relatively simple and inexpensive. For example, employees with long-term neck, back, shoulder, arm and/or hand impairments can use headsets to eliminate the need to hold telephones for long periods of time.
• •  Keep excellent documentation. If an employee with a disability is disciplined, terminated or passed over for a promotion, a record of the reasons should be in your company file. If the company is ever sued, you will be able to demonstrate that your decisions were based on objective factors rather than the employee's disability.
• •  You CAN refuse to hire a person with a disability who truly cannot perform an essential job function. However, you cannot refuse employment because the disabled person is unable to perform a minor or marginal job task.
• •  If middle management or employees seem to be unaware of the ADA and other disability discrimination laws, the employer is still liable. Consider sending those who need education in your company to training, as ultimately the company is legally liable for any violation of the discrimination laws.
• •  The federal ADA might not be the only law that applies. State law, Family and Medical Leave Act (FMLA) and/or workers' compensation laws may also apply. Contact an attorney if the matter is complicated.