Employment Rights of the Disabled

Employment Rights of People with Disabilities

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

An important legal right for people with disabilities is the right to live free from discrimination in employment. Discrimination may take several different forms. Some employers use pre-employment physicals to identify individuals with disabilities and to refuse their job applications. Some employers deny training, promotions and fringe benefits to employees with disabilities. Employees have been downgraded, discharged or harassed when an employer learns of the existence of a disability, or thinks that an employee is disabled.

All of these actions are prohibited by the federal Americans with Disabilities Act (ADA), covering employers with 15 or more employees, and by an Oregon law covering employers with six or more employees. Under these laws, it is illegal to discriminate against mentally and physically disabled people. People with mental impairments such as depression are protected just as physically disabled people in wheelchairs are protected. These laws also protect people with a past record of a disability and those people who have no disability but are treated as if they did because of a mistaken belief on the employer's part.

Federal and state laws prohibit employers from refusing to hire or promote disabled people and from discriminating against them in working conditions, wages or benefits. Employers are prohibited from asking any job applicants (not just disabled applicants) medical questions or from putting such questions on job applications. If you have an obvious physical or mental impairment or offer information that you have an impairment that could affect your ability to do the job you are applying for, the employer may ask you to explain or demonstrate how you would perform the essential functions of the job. After you accept an offer of employment, the employer may ask medical questions or require a physical exam, and may rescind an offer of employment if you would be unable to perform the essential functions of the job with or without reasonable accommodations. An employer must ask the same questions or require the same medical examination of all applicants for that job category.

For those already employed, federal and state laws require employers to make changes to their workplace or company policies that will enable disabled employees to perform their jobs in a safe and efficient manner. If you have a physical or mental impairment and believe that a reasonable accommodation would allow you to perform your job better, you should immediately talk to your supervisor. Spend a few minutes before you approach your supervisor and think about which job duties are affected by your impairment, how your impairment is causing you to be limited, and then come up with a few suggestions for accommodation. Reasonable accommodation might mean asking for an ergonomic computer keyboard or wrist pads if you have a wrist problem, or asking to have the office furniture rearranged so you can maneuver your wheelchair around the office. It could also mean asking to have certain office policies relaxed or changed. For example, if you have a mental disability that causes you to get little sleep, you might need to be excused from an office policy that prohibits employees from arriving late to work.

Employers have a duty to workers who are off work because of a job-related injury that results in a compensable workers’ compensation claim. Once an injured worker tells an employer that he or she can return to work, the employer has a duty to reinstate the worker to the previous job or to offer other suitable work if the previous job has been eliminated for a legitimate reason. If the injured worker is unable to perform the previous work, but could perform a modified position, the employer has a duty to reemploy that worker.

The federal Rehabilitation Act of 1973 prohibits employers who receive financial assistance from the federal government from discriminating because of a physical or mental disability. The Rehabilitation Act also requires these employers to take affirmative action to hire persons with disabilities and to advance them in employment.

Various agencies enforce these laws in Oregon. For more information on enforcing the rights of people with disabilities, visit the resources section of the Oregon State Bar disabilities law webpage here. There you will find contact information for the Oregon Bureau of Labor and Industries, Civil Rights Division; the Bureau of Labor and Industries’ Technical Assistance for Employers Program; the federal Equal Employment Opportunity Commission; and the U.S. Department of Labor’s Office of Contract Compliance — as well as other resources of interest.

Legal editor: Thomas Doyle, June 2008