Acknowledgments
Many individuals and organizations contributed to the creation of this guide. Special thanks go to Dmitri Belser with the Center for Accessible Technology and Colin Piotrowski with the Ohlone College Deaf Center for their help in reviewing the handbook. Staff from the Berkeley Center for Independent Living, the Center for Accessible Technology, the Deaf Counseling, Advocacy and Referral Agency, Protection and Advocacy, Inc., the Rose Resnick Lighthouse for the Blind, and World Institute on Disability also provided valuable assistance, as did Todd Schneider of Schneider & Wallace.
Many DRA staff members also contributed to the development of this handbook. In particular, Michele Friedner, Patricia Kirkpatrick, Gabrielle Marcus and Laurence W. Paradis provided invaluable research and editing assistance.
This book was made possible by a generous grant from Citibank. .
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An accessible version of this publication can be found at www.dralegal.org/publications. For other accessible formats, please contact Disability Rights Advocates at 510-451-8644 (v), 510-451-8716 (tty), or email general@dralegal.org.
Table of Contents
Introduction 1
Who should use this handbook? 2
What is this handbook about? 2
What topics does this handbook not cover? 2
What is the Access to Employment Project? 3
Summary of Disability Discrimination Law 4
Chapter 1: Legal Protections for People with Disabilities 8
Which laws protect me from discrimination? 8
Who is protected by disability discrimination laws? 8
How does the law define a disability? 8
Can someone who does not have a disability ever be protected by these laws? 9
Does every employer have to obey disability discrimination laws? 10
What does it mean to be "qualified for the job"? 10
Do I have to meet every job requirement? 10
When is a job related test valid? 11
What job functions do I have to be able to perform? 11
Which job functions are essential? 12
Do I have to be able to do job functions the same way other employees do? 12
Is regular job attendance required? 12
What if the employer thinks I pose a safety risk? 13
What if I am interested in a job related to public safety? 13
What is a reasonable accommodation? 14
What types of accommodations are employers required to provide? 14
When should I ask for a reasonable accommodation? 16
How do I find a reasonable accommodation? 16
Who gets to choose what accommodation will be provided? 16
What happens if my disability or the job changes after I am accommodated? 17
What if an employer does more than the law requires? 17
Chapter 2: Your Rights During the Hiring Process 20
What rights do I have to equal treatment during the hiring process? 20
What kinds of reasonable accommodations can I get during the hiring process? 21
What rights do I have to physical access? 21
Do application materials have to be accessible? 21
How do I make sure I get effective communication while applying? 22
When is a TTY required? 23
What if I need accommodations on application tests? 23
Can I be asked questions about my disability or told to go for a medical examination? 24
Chapter 3: Your Rights On the Job 28
What rights do I have to equal treatment on the job? 28
What if an employer acts for reasons other than disability? 29
Do I have any protection against harassment? 30
What kinds of reasonable accommodations can I get on the job? 31
What rights do I have to physical access and safety? 31
What if I am concerned about my safety in the workplace? 31
Can I bring my service animal to work? 31
Can I get printed materials in accessible formats? 31
How do I make sure I get effective communication on the job? 32
What if I need special equipment? 32
Does my employer need to provide me with equipment that I use outside the workplace? 33
What modifications to job duties can be required? 34
Can I get additional sick leave? 34
Do I have to answer medical questions or have a medical examination on the job? 35
If I assert my legal rights, does the law protect me from retaliation? 35
TABLE OF CONTENTS (cont'd)
Chapter 4: Asserting and Protecting Your Rights 38
What can I do to protect my rights during the hiring process? 38
When should I tell an interviewer about my disability? 41
What can I do to increase my chances of finding a reasonable accommodation? 42
What steps can I take to assert my rights effectively? 44
How can I deal with common objections raised by employers? 45
How can I deal with uncooperative employers? 46
When should I take legal action? 47
What is the first step I need to take in pursuing legal action? 47
What will happen after I file a charge with the EEOC? 48
Do I need an attorney to file an EEOC charge? 49
Resource Guide
Suggested Accommodations 52
Sample Letters 55
Sample Letter 1: Requesting an Interpreter for a Job Interview 56
Sample Letter 2: Requesting Accommodations During the Hiring Process 57
Sample Letter 3: Requesting a Job Accommodation 58
Sample Letter 4: Follow Up Letter After a Reasonable Accommodation Agreement 59
Resources 60
Finding Employment 60
Information on Accommodations 61
Assistive Technology 61
Blindness/Low Vision Resources 62
Deafness/Hard of Hearing Resources 62
Financial Assistance 63
Legal Resources 63
Statutes and Regulations 65
Introduction
Finding and keeping a job can be challenging for anyone, but they are often especially difficult for persons with disabilities because of stereotypes and accessibility barriers. In spite of laws designed to ensure equal opportunity, persons with disabilities have repeatedly experienced discrimination both when looking for employment and while on the job. Today, 67 percent of people with disabilities are unemployed, and people with sensory disabilities (those who are deaf or hard of hearing, or who are blind or have low vision) often face additional barriers due to their unique needs.
If you are deaf or hard of hearing, you may have experienced the humiliation of being unable to communicate with an employer while applying for a job because an interpreter was not provided. If you are blind or have low vision, you may have been unable to complete the job application process because materials were not provided in a format that you can read. No matter what kind of disability you have, you may have encountered an interviewer who was obviously uncomfortable with you or asked embarrassing questions about your disability. Even if you have not had bad experiences like these, you may have received a series of rejections in response to your job applications, even where you were clearly qualified for the job. These things are not uncommon; all of them have happened to people with disabilities and they will continue to happen until people with disabilities are able to enforce their rights.
This handbook has been written to educate you about your legal rights when seeking employment, so that you can protect your rights and respond appropriately in these and other similar situations you might encounter while looking for a job. This handbook is a tool you can use and consult while you look for a job?it is designed to help you make sense of this complex process.
Who should use this handbook?
This handbook is designed for individuals with disabilities or medical conditions, particularly those whose condition relates to vision or hearing loss. While the examples and suggestions discussed in the following pages are targeted toward people with vision and hearing disabilities or medical conditions, this book can also be useful to people with other types of disabilities.
What is this handbook about?
This handbook covers both your legal rights and what you need to do to assert those rights effectively. The first three chapters explain your legal rights in the hiring process and after you are on the job.
Chapter 1 provides an overview of the law and explains who is protected from discrimination and the obligation of an employer to provide accommodations.
Chapter 2 explains in more detail your rights and responsibilities while applying for a job, and addresses specific issues that often arise during that process.
Chapter 3 explains your rights and responsibilities on the job after you are hired.
The last chapter and the Resource Guide contain strategies and resources to help you more effectively protect your legal rights and advocate for yourself.
Chapter 4 explains some of the challenges you may face while seeking a job because of your disability. It suggests ways to assert your rights effectively and successfully, and discusses when you should consider taking legal action.
The Suggested Accommodations section provides a list of possible accommodations to consider while you look for an accommodation that will work for you.
The Sample Letters section provides examples of letters to employers about issues related to disabilities and accommodations that you can use as models during your job search.
The Resources section provides a list of government and nonprofit agencies and other resources to consult if you need more information.
What topics does this handbook not cover?
This book concentrates on the rights of individuals with disabilities to be free from discrimination by private employers when seeking or holding a job. It does not cover in detail other aspects of employment (although resources in many of these areas can be found in the Resource Guide). In particular, this handbook does not cover:
Government employment?Although federal, state and local government entities are bound by some of the laws against discrimination discussed in this handbook, they have different legal obligations in some situations, and may have an added duty to undertake affirmative action to hire people with disabilities. This handbook does not address these issues in detail; if you are considering government employment you may want to consult some of the agencies listed in the "Finding Employment" section of the Resource Guide on page 60.
Government benefits?Government benefits such as SSI, SSDI, Medi-Cal and Medicare generally have requirements that you must meet if you are receiving support through these programs and wish to begin work. Beginning a new job can sometimes mean losing part or all of your benefits, including cash payments and health coverage. Recent changes to the law, however, have made it easier to return to work while continuing to receive cash or health care benefits for a limited time. If you are receiving benefits under these programs, you can contact someone at the agency that administers the program to find out more, and you may also want to contact an advocacy agency such as an independent living center (see the "Finding Employment" section of the Resource Guide on page 60) and speak with a benefits counselor.
General job search strategies?This handbook does not cover general job search strategies, such as how to choose a career, how to find job listings, and how to interview effectively, which are just as important for you as they are for any nondisabled job seeker.
The purpose of this handbook is to give you basic and general information about your legal rights in the employment setting. This handbook covers the legal issues that are most likely to affect you as an individual with a vision or hearing disability, but it does not cover every aspect of disability discrimination law. It is not legal advice, and cannot be a substitute for legal advice from a competent attorney regarding your legal rights. If and when you believe you have suffered discrimination, consult an attorney to protect your rights.
What is the Access to Employment Project?
This handbook was written by Disability Rights Advocates (DRA), a nonprofit legal center headquartered in Oakland, California, as part of its Access to Employment Project. The project is designed to protect the rights of individuals with disabilities in employment through outreach, education and litigation. DRA is a nonprofit corporation that protects the civil and human rights of people with disabilities throughout the United States and around the world. DRA is run by people with disabilities for people with disabilities. We work to end discrimination in access to public accommodations, employment, transportation, health care, insurance and housing. Our mission is to ensure that people with disabilities will no longer be treated as second class citizens. DRA serves individuals with all types of disabilities and primarily focuses on addressing systemic problems through high-impact litigation rather than individual cases.
Summary of Disability Discrimination Law
What does it mean to have a disability under the law? (pages 8-10)
Before you are entitled to any protection under disability discrimination laws, you must establish that you are an "individual with a disability" as the law defines that term.
A disability is a physical or mental impairment that limits your ability to do one or more major life activities (which include seeing, hearing, learning and many others).
What does it mean to be qualified for the job that you want? (pages 10-13)
In order to be protected by these laws, you must also be qualified for the job you hold or seek, and must be able to perform the essential functions of the job.
Essential functions are those tasks that are central to the job and that people who hold that job regularly perform.
You may be entitled to certain modifications to the job (known as "reasonable accommodations") to help you perform these functions, but you must be able to perform these essential functions.
You must also possess the same qualifications and meet the same performance standards as the employer requires of all employees in the job.
Finally, you must be able to do the job safely, without threatening the health and safety of yourself or of others.
What does it mean to be protected from discrimination? (pages 20, 28-30)
If you are an individual with a disability, an employer may not discriminate against you in any aspect of your employment by treating you less favorably because you have a disability.
You are protected from discrimination in hiring, firing and promotion decisions and in the provision of other benefits of employment.
You are not protected from actions taken against you for reasons unrelated to your disability, such as poor performance or violations of company rules.
What are reasonable accommodations? (pages 14-17, 21-23, 31-35)
You are entitled to reasonable accommodations, both in the hiring process and while you are on the job. An accommodation is any change in how things are done in the hiring process or on the job, made in order to give you the same opportunity as someone without a disability. If you need an accommodation, you and your employer must work together to find one that works for you.
If an effective accommodation exists, the employer must provide it to you and pay for it, so long as it is reasonable and will not place an unusually heavy burden on the employer.
Accommodations can include physical modifications to ensure access, changes in the way materials are presented or how tests are administered, the purchase of special equipment to allow you to meet the physical demands of the job, or changes in employer policies.
Chapter 1: Legal Protections for People with Disabilities
Which laws protect me from discrimination?
Federal law?The most important federal laws protecting the rights of people with disabilities are the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The ADA prohibits discrimination in many areas of society, including discrimination by both public and private employers. The Rehabilitation Act prohibits discrimination against persons with disabilities in employment by executive agencies of the federal government, by federal contractors, and by any agency, business or organization that receives funding from the federal government. It also requires that federal government programs and services be accessible to persons with disabilities, and imposes some limited obligations on the federal government to take affirmative action on behalf of persons with disabilities in employment.
California law?In addition to the ADA, California state laws such as the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act prohibit discrimination against persons with disabilities in California. California law offers more legal protection than federal law; for example, it contains a broader definition of "disability" than federal law, and applies to smaller employers not covered by federal law.
Who is protected by disability discrimination laws?
In order to be protected by disability discrimination laws, you must have a "disability" as that term is legally defined. The definition of "disabled" under civil rights laws is different from what it means to be "disabled" when you are seeking workers' compensation or government benefits.
There are three categories of individuals who are "disabled" under civil rights laws and are therefore protected against discrimination: those who (1) have an actual disability; (2) have a record of a disability; or (3) are regarded by an employer as having a disability.
How does the law define a disability?
According to California law, a disability is "a physical or mental impairment that limits one or more major life activities." Whether or not you are disabled depends on how your impairment or medical condition affects your ability to perform certain tasks, and not just on a medical diagnosis. The following sections discuss the different parts of the definition of what it means to be disabled under California law.
Physical or mental impairments?Having a physical or mental impairment means that the limitations you experience are caused by a diagnosed medical condition. Almost anything that can be medically diagnosed and treated can qualify as an impairment.
Major life activities?Your impairment or medical condition must limit you in how you perform one or more major life activities in order to be a disability. There is no precise definition of what qualifies as a major life activity, but things that most people do frequently or that are of central importance in the course of their lives usually qualify. Hearing and seeing are clearly major life activities; other major life activities can include reading, learning, walking and performing manual tasks. Although California law protects you if you have any limitation on your ability to do a major life activity, no matter how minor, you should be aware that federal law and the laws of most other states require this limitation to be substantial to meet the definition of disability.
Also under California law (but not under federal law), your condition can count as a disability even if the effects of that condition are reduced or eliminated through the medication you take or assistive devices you use. For example, if you use a hearing aid to offset a hearing loss, your condition counts as a disability if it would limit you in any major life activity (like hearing) when you are not using the hearing aid.
Can someone who does not have a disability ever be protected by these laws?
Sometimes. Disability discrimination laws protect you if you have a record of a condition that would limit a major life activity, even if you do not now have such a condition. This might happen because you were misdiagnosed or because your condition has improved over time. The law also protects you if you are regarded by an employer as having a disability. This happens when your employer thinks that your condition places more restrictions on you than it actually does and limits one of your major life activities even though you are not so limited.
You may also be protected by the law because of your association with someone with a disability. For example, you cannot be discriminated against because you have a child, a parent, or a friend who is deaf or blind. However, you are generally not entitled to reasonable accommodations simply because of your association with a person with a disability.
Does every employer have to obey disability discrimination laws?
Most, but not all, employers are required to obey disability discrimination laws. A private company is prohibited from discriminating if it has five or more employees (full time or part time), but smaller companies do not have to obey these laws. All government agencies or organizations are covered by these laws, no matter their size, as are businesses that receive money from the federal government. Disability discrimination laws generally do not protect people who are working as consultants or as contractors for a company. However, an employer cannot make you a consultant or a contractor, rather than a regular employee, just to avoid having to obey the law.
Before you apply for a job with a particular company, it is helpful to know whether that company will be under a legal obligation to treat you fairly. However, even if the company is not legally bound to obey the ADA or other laws, it is good business practice to hire and accommodate people with
disabilities, and there are some employers that will be receptive to your needs, especially if you promote your skills, not your disability, to the employer.
Sometimes companies other than your employer are prohibited from discriminating against you during the employment process. For example, if you work for a company that provides temporary workers to businesses, both the staffing company and the employer to whom you are assigned must obey these laws if they have five or more employees; so must any agency that works to place workers in jobs, such as headhunters or college placement offices.
What does it mean to be "qualified for the job"?
Even if you have a disability that is recognized by the law, you are not protected against discrimination unless you are qualified for the job. You must meet any reasonable standards the employer has established for the job, you must be able to perform the essential job functions (with the help of reasonable accommodations if you need them), and you must not pose an unacceptable safety risk while performing the job.
Do I have to meet every job requirement?
Not necessarily. All jobs have a set of requirements that applicants must meet before they are hired, or performance standards that employees must meet while on the job. The employer may require all applicants to have a certain level of education or work experience, to have learned certain skills, or to possess certain licenses or certifications. You generally must meet these requirements if your disability does not directly prevent you from doing so.
In addition to job skills and work experience requirements, some employers either require employees to meet certain physical standards (such as having a certain level of vision) or exclude all individuals with certain conditions or diagnoses from certain jobs. Such blanket physical requirements often violate the law. However, they are legal in some circumstances that will be described below.
Some employers also require applicants or employees to pass tests demonstrating that they can perform tasks with a certain level of speed or accuracy. In many situations, your disability will not impair your ability to pass these tests, and you will need to pass them. In other situations, your disability may directly affect your ability to meet the employer's standards. This could happen, for example, if the test requires you to read at a certain speed or to type with a certain level of accuracy and your disability prevents you from doing so. Even though this kind of test can prevent you from obtaining certain jobs, an employer may be able to justify its use.
When is a job related test valid?
An employer can apply a physical requirement (like a hearing test) or a skills test (like a test of reading ability) that tends to screen out persons with disabilities only if it is "job related" and "consistent with business necessity". In general, in order to be "job related" the standard or test must measure skills or abilities related to performance of the particular job in question. For example, while you can be required to type at a certain speed in order to fill a secretarial job whose primary duties include extensive typing, such a test would be inappropriate for a job which only involves answering the phone or filing documents.
To be "consistent with business necessity", the requirement must be related to the essential functions of the job (essential functions are discussed in the next section), and there must be no way to administer the test or measure the ability that would have less impact on persons with disabilities and would achieve the employer's goals. If the employer can show that the test or standard is both "job related" and "consistent with business necessity", you can be rejected for failing it, even though your disability caused the failure. However, you are entitled to reasonable accommodations that will help you demonstrate your ability on the test, and you may be entitled to accommodations on the job that would eliminate your need to pass the test or meet the physical requirement. See page 23 for information on getting reasonable accommodations on tests, and page 34 for information on changes to the job that can be required.
What job functions do I have to be able to perform?
In addition to meeting the qualification standards that the employer sets, you must be able to perform the "essential functions" of the job. Laws like the ADA make a distinction between job functions or job tasks that are "essential" and those that are only "marginal". All jobs have essential functions, which are the tasks for which the job was created and which cannot be assigned to another employee without creating a different job. Many jobs also have at least some marginal functions, which are tasks that are done infrequently or which can easily be done by another employee. You must be able to perform those functions of your job that are essential. If there is a reasonable accommodation that would allow you to perform the job duties, the employer is required to provide it to you, but you do not have the right to be hired for a job you cannot perform.
Which job functions are essential?
There are no firm rules about whether a particular job function is essential, but there are several factors courts use in making this decision:
The most important factor is whether, and how often, people doing the job actually perform the function. (If an employee spends a large percentage of his or her time on that function, then it is essential, even if it might be possible to assign it to another employee. On the other hand, if employees hardly ever perform the function, this strongly suggests that it is not essential.)
Sometimes a function may be essential even though it does not need to be done often, especially if it affects the safety of other employees or the public.
Another factor is how many people are available to perform a job function. In a small business, or where there are only a few people who hold the job, functions are more likely to be essential even if they are not performed frequently.
Before they start the hiring process, many employers develop a job description for the position that lists the functions that they believe are essential. Sometimes these lists are included with the job announcement or application. These descriptions can help tell you what the job actually entails, but some functions listed there may not actually be essential. Just because an employer lists a function in a job description or tells you that you must be able to perform that function does not necessarily mean that the function is legally essential.
Do I have to be able to do job functions the same way other employees do?
Not necessarily. If an employer tells you that a certain task (for example, using a two-way radio) is an essential function, consider whether you can accomplish the goal of that task in a different way. For example, although an employer may require that all employees be able to use a two-way radio, if you have a hearing disability you may be able to communicate just as effectively using another method, such as a two-way pager. Unless there is some specific reason why a radio must be used, you should be allowed a chance to communicate in a different way.
Is regular job attendance required?
Regular job attendance is almost always considered an essential job function, because most work involves at least some interaction with coworkers and supervision by the employer. If you are unable to come to work on a regular basis because of your disability, in most cases you are not qualified for the job. However, regular attendance may not be essential in some cases, especially where other employees are allowed flexible schedules or where a significant amount of work is performed independently and could be performed outside of the office. Also, you may be entitled to leave under the Family and Medical Leave Act or a limited amount of time off as a reasonable accommodation. For more information on getting additional leave, see "Can I get additional sick leave?" on pages 34?35.
What if the employer thinks I pose a safety risk?
In order to be qualified for a job, you must also be able to perform it safely. People without disabilities, including employers, tend to greatly overestimate the safety risks posed by people with disabilities because of a lack of knowledge or because of stereotypes. However, in certain jobs, and for certain disabilities, there are legitimate safety concerns. You are not qualified for a position if, even with reasonable accommodations, you pose a threat to the health or safety of yourself or others while on the job.
However, in order for an employer to exclude you from a position because of safety, you must pose a significantly increased risk of harm over that posed by an individual without a disability, and the increased risk must be based on more than just speculation. Concerns that your disability may become worse in the future, or concerns about increased health insurance or workers' compensation expenses, do not by themselves mean that you pose a threat.
What if I am interested in a job related to public safety?
Although the legal standards for determining who is qualified to perform a job are the same for all types of jobs, you should be aware that courts have been reluctant to protect disabled workers in positions related to public safety or health. These jobs include firefighters, police officers, security guards, prison guards, railroad and airline employees, doctors and nurses, and other similar occupations. If you are seeking such a job, you may face additional barriers to your employment that would not be permissible if you were applying for other jobs.
This is true at least in part because the essential functions of these jobs often include responding to emergency situations or taking actions outside of the employee's normal job duties. Police officers and prison guards, for example, may be required to pursue and capture suspects or prisoners in emergency situations, even if they normally hold desk jobs. In most other jobs, duties which need only be performed rarely or in emergencies would be marginal, rather than essential, job functions, but in public safety occupations like the ones listed above, these functions are generally considered essential.
For jobs related to public safety, employers have more latitude to demand that employees meet certain physical requirements. Employers in public safety jobs can also often implement blanket policies requiring, for example, a high level of hearing or vision in all employees. Finally, having a disability is more likely to be considered a serious risk to safety or health in one of these jobs, because opportunities to cause harm to others or to yourself may be more common. This is not meant to discourage you from seeking these jobs, but to make you aware that you may face more resistance because of your disability.
What is a reasonable accommodation?
Disability discrimination laws like the ADA protect you from unequal treatment based on your disability, and ensure that you will be given the same opportunities to seek and hold a job as are available to nondisabled individuals. Often you will be able to perform job duties just as a nondisabled person can, and so this is all the legal protection you will need. However, in many situations your disability will not permit you to do the job in exactly the same way a nondisabled person would. You may need a change in where, how or under what conditions the job is performed in order to have the same opportunity in the job as someone without a disability. In these situations, the law gives you the right to a "reasonable accommodation".
What types of accommodations are employers required to provide?
If you are an individual with a disability, an employer must provide an accommodation that you need in order to apply for or perform a job, so long as that accommodation is reasonable. Reasonable accommodations are changes in the job, the work environment, or the way things are usually done that allow you to have an equal opportunity to apply for or perform the job. Many different changes to facilities, equipment and policies can be required as accommodations, and some specific examples are discussed in Chapters 2 and 3 and in the "Suggested Accommodations" section.
However, not every possible change to the work environment that you might need because of your disability is a legally required reasonable accommodation. An employer does not have to provide an accommodation that would cause a serious hardship because of its cost, disruptiveness or impact on the rights of other workers. Some accommodations will almost always cause such a hardship and so are not required under any circumstances. For example, creating a new position for you including only the tasks you can perform or violating seniority rules in order to give you a position for which you lack seniority, are almost never required.
Other types of accommodations are reasonable for most employers, but may not be required in a particular case because they would be especially difficult or costly for that employer (would pose an "undue hardship", in legal terms). Whether or not an accommodation is reasonable for a specific employer depends on the size, scope, and resources of the employer. For example, purchasing adaptive computer equipment is generally a reasonable accommodation. However, if a company is in serious financial difficulty such that having to purchase a particularly expensive piece of equipment might put it at risk of bankruptcy, it might not be required to provide that accommodation, even though another employer would be.
When an accommodation is an "undue hardship" depends on factors such as how much the accommodation will cost and the extent to which it will disrupt the employer's business. The relationship between the accommodation's cost and the resources the employer has available to pay for it is very important. The less an accommodation costs, the more likely it is that an employer will be required to provide it. Also, large companies, or small businesses that are owned or controlled by a larger company, can be required to do more to accommodate your disability than an independent small business.
Before you suggest an accommodation, it is a good idea to try to find out about its cost to the employer, so that you can address any concerns that your employer may raise. The Job Accommodation Network, listed in the Resource Guide on page 61, is a good source of general information on the cost of accommodations. Also be aware that there are a number of tax credits and other sources of funding to help businesses that hire or accommodate persons with disabilities. However, many employers do not know about these resources; a recent survey found that less than 20 percent of human resources personnel at large employers were very familiar with the tax credits that are available. Therefore, you may want to let an employer you interview with know about any of these credits or other funding that might pay for the accommodation. For information on such funding, see the "Financial Assistance" section of the Resource Guide on page 63. If an accommodation is not required because it is too expensive, you may choose to pay for the accommodation yourself, or pay the portion of the cost that makes it too expensive. For more suggestions on how to deal with the fears your employer may have about the costs of accommodations, see "When should I tell an interviewer about my disability?" on page 41.
An accommodation also may not be required if it would be especially disruptive or if it would significantly change the way an employer does business. For example, it would likely be an undue hardship to require a business to accommodate a customer service representative with a hearing disability by requiring that orders be submitted in writing, rather than over the telephone, because this would change the way the business interacts with its customers. An accommodation that significantly impairs the ability of other workers to do their jobs (by requiring them to take on significant extra duties or work in uncomfortable conditions) may be an undue hardship. However, an employer cannot refuse your accommodation request simply because granting the accommodation would cause resentment or prejudice in your coworkers based on your disability. For example, if a person with vision loss needs to sit near a source of natural light, even though those desks are usually given to the most senior employees, the employer cannot deny the request because it fears other staff will resent the person with a disability.
When should I ask for a reasonable accommodation?
Your employer cannot accommodate a disability it does not know about, so you may have to tell your employer about your disability in order to obtain accommodations. However, you do not have to reveal your disability unless and until you need accommodation, and revealing it before you have received a job offer may hurt your chances of being hired. In most cases, you should wait to ask for accommodations you need on the job until after you have received a job offer, but before you begin work. For more suggestions on when to reveal your disability, see the section "When should I tell an interviewer about my disability?" on page 41.
The request does not have to be formal, and you do not have to specifically ask for a "reasonable accommodation". You only have to identify yourself as a person with a disability and tell your employer that you need help in performing your job. The request can also be made by a relative or friend acting on your behalf (if, for example, you are temporarily hospitalized). If your disability is not one that is obvious and visible, like total blindness, your employer may then ask you for documentation of your disability and the effect it has on your work.
How do I find a reasonable accommodation?
According to the law, you and your employer must work together to find an accommodation that will allow you to overcome employment barriers by examining your individual circumstances and the requirements of the job. This process requires active participation by both you and your employer, and begins when you ask for an accommodation, or when your employer comes to believe that you are having difficulty on the job because of a disability.
You should be prepared to suggest accommodations that you think would allow you to perform the job and find out whether these accommodations, as well as any the employer may suggest, will be effective for you. It is important to play an active role in this process. If you do not participate, by not responding to your employer's requests for information or documentation or by otherwise causing delay, you may lose your right to be accommodated.
Who gets to choose what accommodation will be provided?
Generally, your employer gets to choose. An employer must provide you an accommodation that is reasonable and effective. However, you do not necessarily have a right to the accommodation of your choice. If more than one accommodation would be effective, then your employer is allowed to choose the accommodations that the company is willing to provide. The employer should consult you to find out what you prefer but the employer generally makes the final decision. On the other hand, the accommodation must be effective?the employer may not deny you equal terms and conditions of employment, or equal opportunities, by providing ineffective accommodations.
Although the accommodation must be effective, it does not have to be the best possible accommodation or the one you would most like to have. For example, your employer may choose to provide documents in a printed format with large type, or to have another employee assist you in reading, rather than buy software that would allow you to read documents on a computer screen, even if you would prefer to have the software.
The law does not require you to accept an accommodation offered by your employer. You are free to refuse an accommodation either before it is offered or after the employer begins to provide it. But if you refuse an accommodation that would have allowed you to do the job, and therefore can no longer perform the job's essential functions, you can be terminated.
What happens if my disability or the job changes after I am accommodated?
Both your disability and the requirements of the job may change over time, and if they do, you should again work with your employer to determine whether the accommodation is still effective or whether a new accommodation is needed. If your disability changes such that you can no longer perform your job duties, you should tell your employer that your current accommodation is no longer working and that you need a new accommodation. Also, if the duties of your position change and you need accommodations to perform your new duties, you should approach your employer to try to find an accommodation that will allow you to do your current job or to find another available job you can perform. For information on having your job duties modified as an accommodation or when moving to a new position, see the "What modifications to job duties can be required?" section on page 34.
What if an employer does more than the law requires?
Sometimes employers go beyond the requirements of the law in accommodating an individual with a disability on the job. For example, you may be accommodated by having some essential functions of your job reassigned to other workers; the law does not require this kind of accommodation, but an employer may choose to provide it. An employer only has to provide an accommodation that is legally required, regardless of what the employer has done in the past. Therefore, if your employer provides you with a certain accommodation for several years, but that accommodation is not required by law, the employer may stop providing it without violating the law (although it must then try to find another accommodation for you).
Chapter 2: Your Rights During the Hiring Process
If you are a person with a disability covered by discrimination laws, you have many legal protections while applying or interviewing for a job. An employer may not treat you unfavorably because of your disability, and you have a right to reasonable accommodations during the hiring process. This includes interpreters and other aids to communication, having materials presented in alternative formats, and the modification of certain policies and procedures. Even though an accommodation is not described below, your employer may still be required to provide it.
What rights do I have to equal treatment during the hiring process?
An employer may not discriminate against you by treating you less favorably because of your disability at any stage in the hiring process. Discrimination happens when an employer treats you differently than it would a nondisabled applicant for the same position with your skills, experience and other qualities, simply because you are disabled.
If you have a disability, the employer cannot:
- Refuse to give you an employment application.
- Refuse to accept an application you have filled out.
- Tell you that no positions are available, when positions are in fact being filled and nondisabled applicants are told that positions are available.
- Tell you that you must meet certain physical or mental standards in order to get the job, unless those standards are themselves legal and are applied equally to all employees. See the section "When is a job related test valid?" at page 11 for more information on tests and standards you can be required to meet.
- Refuse to hire you because of your disability if you are otherwise the most qualified person for the job.
- Refuse to hire you because you may need reasonable accommodations in order to do the job.
- Refuse to hire you because you may increase the employer's health insurance, workers' compensation, or other related expenses.
- Refuse to hire you because your employer thinks you may be more likely to file a lawsuit or will increase its legal liability.
However, an employer does not have to hire you if someone else is more qualified for the job, and can require you to meet the same qualifications and standards (with reasonable accommodations, if necessary) it applies to other nondisabled applicants.
What kinds of reasonable accommodations can I get during the hiring process?
This section discusses some of the reasonable accommodations that might be required for you depending on your needs. As discussed in Chapter 1 (pages 14?17 ), you do not necessarily have a right to a particular accommodation. Whether an accommodation is reasonable must be determined on a case by case basis.
What rights do I have to physical access?
An employer may be required to hold the hiring process in an accessible location, either by modifying the facilities normally used for this process or by conducting the process at another accessible location. This includes facilities regularly used for distributing applications, conducting interviews, administering pre-employment tests, and other aspects of the hiring process. In most cases, employers must also allow your service animal to accompany you onto their premises for purposes of applying and interviewing for a job.
Do application materials have to be accessible?
You have the right to receive job announcements, applications and other materials used during the hiring process in an accessible format if you cannot use the standard written format because of your disability. Accessible formats can include large print, Braille, audio tape and computer disk, among others. Sometimes making materials accessible may include having them read aloud to you, and allowing you to orally supply information used to fill in a printed form. However, if information is complex or difficult to remember (such as details of an employer's benefits plan) you can insist that this material be provided in a form you can take with you, rather than being read to you. You may need to request such alternative formats in advance or wait a short time while they are provided.
Job announcements must be provided in an accessible format when requested. In recent years the popularity of the Internet has led more and more employers to post job listings and accept applications and resumes online. This can create a problem for people with visual impairments who cannot access World Wide Web pages and other Internet resources unless they are accessible. Employers should ensure that their Web pages are accessible, and that there are alternative ways to research job listings and to apply for a job, such as by telephone or in person.
How do I make sure I get effective communication while applying?
You have a right to accommodations that enable you to communicate effectively during the hiring process. What it means for communication to be "effective" depends both on the kind of communication you prefer and use, and on the length, complexity and importance of the particular situation in which you need to communicate. An employer should find out what you prefer before choosing the form of communication it will provide, but you are not entitled to your preferred form of communication in all situations.
The more important and involved a communication is, the greater is the need to provide the best form of communication. For example, in most circumstances, you should have a qualified interpreter for a job interview if that is the best way for you to communicate. Interviews are often important events where you communicate a great deal of information about yourself to the interviewer, who also communicates important and detailed information to you about the company. If you cannot communicate adequately with your interviewer, he or she may not fully understand your skills and abilities and what you can bring to the job.
On the other hand, many of the interactions that occur during the hiring process are relatively brief and do not involve complex information. For example, you may have to communicate with a receptionist at the office to receive a copy of an application, you may have to ask questions about what information is required on an application, or you may need to follow up with an employer after your interview to find out the status of your application. For these kinds of encounters, you may be able to understand what is being communicated by reading lips or passing notes, even if you cannot understand every word. However, remember that you are entitled to effective communication. You do not have to settle for communication that is inadequate simply because the employer is reluctant to provide what you need, and you can ask for clarification or additional information if you do not understand what is being communicated.
When is a TTY required?
Employers are not required by law to provide a TTY to receive incoming calls from job applicants, but they are required to provide effective communication, which includes communication by telephone, for deaf or hard of hearing applicants. Since most businesses can expect to receive applications and inquiries from a number of deaf or hard of hearing individuals over time, it is a good practice to purchase and install a TTY to handle incoming calls from these applicants, and many employers have done so. If an employer has not installed a TTY, you may call that employer using California's relay service.
What if I need accommodations on application tests?
Some employers administer tests during the application process to gauge your job skills. You have the right to the accommodations you need on these tests to ensure that they accurately measure your abilities. For example, you have the right to have a test presented to you in an alternative format, to have a reader or an interpreter if you need one, or to have extra time or other testing accommodations. You may be asked to demonstrate your need for accommodations with a letter from your doctor or other documentation; evidence that you used such accommodations on tests in school or college will help to demonstrate that you require them.
Can I be asked questions about my disability or told to go for a medical examination?
Only in certain situations. The ADA and other disability discrimination laws contain specific rules about when an employer can gather and use medical information about you. These rules are meant to prevent an employer from using medical information about your disability to deny you a job before it has had a chance to evaluate your other skills and qualifications.
Before the employer makes you a job offer, they cannot ask certain questions about your disability or require you to provide medical information about your disability. An employer may not ask you, either on the job application or in the interview:
? whether you have any disabilities, or a specific disability.
? whether you are currently receiving medical treatment.
? whether you have ever been treated for certain medical conditions.
? whether your family has a history of certain medical conditions.
? what prescription medications you are taking.
? other questions that force you to reveal your disability.
Even if the employer knows you have a disability, the employer cannot ask you about its severity, the condition that causes it, your diagnosis, or whether you will need to take sick leave to treat it. (On the other hand, you may choose to reveal this information if you think it will respond to concerns that the employer has about hiring you.)
While the employer cannot ask you for medical information before making you an offer, you can be asked questions about your ability to do the job. An employer may ask you whether you can perform functions of the job, with or without reasonable accommodation, and what accommodations you might need in order to be able to do the job. For example, an employer might tell you that the job requires a lot of communication on the telephone, and ask you if you are able to use the telephone and what accommodations you would need to use it on the job. If the employer knows about your disability and has questions about whether you can perform the job duties required, the employer may ask you to describe or demonstrate how you will perform these duties and what accommodations you might need on the job. For example, you might have to describe how your screen reader software allows you to access data on the company's computer system.
After an employer makes you a job offer, there are situations in which it may collect medical information. An employer may ask you to provide medical information or take a medical examination if it requires all applicants to do so. An employer may also ask for medical information in order to judge a request for a reasonable accommodation. Even when such inquiries are legal, there are strict limits on how this information can be collected and used.
An employer may condition a job offer on the results of a medical examination if that examination is given to all applicants for that job, not just individuals with disabilities. As part of this medical examination, the employer may request information from your doctor and other people who may have knowledge about your disability, such as rehabilitation counselors, occupational therapists who have worked with you, and previous employers, as well as information about previous injuries and workers' compensation claiMs. After it receives the results of such a medical examination and inquiry, an employer may withdraw its job offer, but only if its reasons for doing so are job related and consistent with business necessity (see page 11 for a discussion of these terms).
After you have been given a job offer, an employer may also seek medical information about your need for a reasonable accommodation if you have requested one. You can be asked by your employer to sign a medical release (a document authorizing your doctor and others with medical information about you to release that information), although you have the right to limit the terms of the release so that the employer gets only the information it needs and not all of your medical history. If your employer determines that the documentation you provide is insufficient, it may ask you to see a doctor of its own choosing, although it must pay the cost of sending you to that doctor.
An employer must keep any medical information it acquires about you strictly confidential. This information cannot be disclosed to other employees or third parties except in limited circumstances (for example, to safety personnel to assist them in developing emergency evacuation plans, or to your supervisors, who may need to know your condition in order to provide necessary accommodations).
Chapter 3: Your Rights on the Job
This chapter describes your rights as a person with a disability on the job, including most of the kinds of reasonable accommodations that may be legally required.
What rights do I have to equal treatment on the job?
You are entitled to equal treatment in all aspects of your employment. Discrimination can happen when an employer takes some harmful action against you, such as firing or demoting you, because of your disability. It is also discriminatory to deny you equal terms and conditions of employment, including all the benefits and privileges that employees receive, whether monetary or otherwise. These benefits have to be given to you under the same conditions that they are given to nondisabled employees.
As a person with a disability, you may encounter unequal treatment in many different aspects of employment. The following are common circumstances in which discrimination might be present and that you might want to look out for:
Salary?An employer may not pay you less than other workers in the same job because of your disability. For example, your employer may not deduct from your pay the cost of providing reasonable accommodations which it is under a legal duty to provide.
Promotion-You have the right to be promoted in the same manner as nondisabled employees. If you are the most qualified candidate for a promotion, you cannot be denied promotion based on your disability. You also have the right to be informed of opportunities for promotion and to participate in the promotion process in the same manner as employees without disabilities.
Transfer and Job Assignment-A transfer to a new position, or your assignment to a job, may be discriminatory if it harms you and it was based on your disability. Lateral transfers between positions that do not involve loss of seniority, pay or other benefits and are not perceived as demotions are not usually harmful enough to count as discriminatory.
Termination-An employer cannot terminate you simply because you are disabled.
Fringe benefits-You have the right to receive the same level of fringe benefits, such as health insurance, sick leave policies, 401(k) plans, and pensions, as nondisabled employees.
Training-You have the right to understand and participate in training that the employer provides, even if you need accommodations in order to participate.
What if an employer acts for reasons other than disability?
Employers often respond to charges of disability discrimination by claiming that they actually had other reasons (such as poor performance) for their actions. If your employer's real reason for taking the action is legitimate and not based on your disability, then that action is not in violation of the law. Some of the more common nondiscriminatory reasons cited by employers are:
Poor job performance-You are required to meet the performance standards set by the employer for all employees in spite of your disability. If you cannot meet these standards, or if the employer legitimately believes that your performance in the job is inadequate, then the employer may fire you or take other action it believes appropriate. Your employer may not hold you to higher standards than other employees because of your disability, and it must allow you the use of reasonable accommodations in meeting its standards. The employer can judge your performance either on objective evidence (such as failure to complete assigned work on time) or on its subjective opinion of your performance (such as the quality of your work), so long as that opinion is not motivated by hostility toward you because of your disability.
Better qualified candidates-An employer may refuse to hire you or promote you if another applicant or employee is more qualified for the job.
Not following company policies-You can be fired or disciplined for violating company policies and procedures. For example, if you are fired for excessive absenteeism, stealing company property, using illegal drugs, or violating any other company rule, this action is legitimate. However, you may not be disciplined more harshly than are nondisabled employees for the same conduct.
Layoffs-If an employer decides that layoffs are necessary and uses nondiscriminatory criteria to decide who will lose their job, such as length of service or performance records, and you are laid off as a result, this is not illegal. Similarly, if you are transferred to a new position or demoted as part of a company reorganization or as a result of a business decision that has nothing to do with your disability, the transfer or demotion is likely to be lawful.
Relationships with coworkers or super-visors-If you cannot get along with coworkers or supervisors, your employer may be justified in terminating you. Even if your boss simply does not like you, as long as that dislike has nothing to do with your disability, you are not protected.
What rights do I have to insurance?
Your employer may provide group health insurance to its employees ("employer-sponsored coverage"). If it does, it must provide this coverage to you under the same terms as it is provided to other employees.
Also, if you are receiving public health benefits, federal and state law may allow you to keep them while going back to work. You may be eligible to keep your Medicare for up to eight and a half years after you return to work, and you may be eligible to continue your Medi-Cal coverage by paying a monthly premium (determined by your income).
Also, the law can help you combine your public health care benefits with your employer-sponsored coverage to get the best possible coverage for your situation. For example, in most cases a federal law called the Health Insurance Portability and Accountability Act (HIPAA) allows you to access employer-sponsored health coverage without a waiting period if you have been on Medicare or Medi-Cal. Contact a benefits counselor at an independent living center or another advocacy organization to find out how to qualify for or combine public benefits and employer-sponsored health coverage. Another publication by Disability Rights Advocates (DRA), Through the Maze: A Guide to Health Care and Insurance Rights and Resources for Californians with Disabilities, provides detailed information about issues related to health insurance. To get a copy of Through the Maze, contact DRA (see the "Legal Resources" section of the Resource Guide on page 63).
Many employers provide life insurance, long-term care insurance, short- and long-term disability insurance and other types of insurance to their employees. Insurance coverage may be particularly important to you because of your disability, and you have the right to receive this coverage on the same terms as other employees. If you think you are experiencing discrimination in one of these areas, you can consult an advocacy agency or file a complaint with the government agency that oversees the insurance plan.
Do I have any protection against harassment?
Discrimination on the basis of disability also includes some forms of harassment (physical, emotional or verbal abuse on the job), even if you are not fired and your pay and benefits do not change. You deserve to be treated with respect and dignity in the workplace, and you have the right not to suffer harassment based on your disability.
In order for harassment to be illegal, it must be severe and ongoing. A few isolated incidents are not enough, unless they are extremely humiliating or threatening. Also, if the harassment is at the hands of coworkers, the company must have known of the harassment and not taken sufficient steps to prevent it. Many companies have formal procedures for handling complaints of harassment by supervisors or co-workers; you are normally required to follow these procedures if you know about them.
What kinds of reasonable accommodations can I get on the job?
This section discusses some of the reasonable accommodations that might be required for you depending on your needs. As discussed in Chapter 1 (pages 14?17), you do not necessarily have a right to a particular accommodation; whether an accommodation is reasonable must be determined on a case-by-case basis.
What rights do I have to physical access and safety?
You have the right to work in a physically accessible environment. An employer may be required to make necessary modifications to facilities to allow you access to those areas of the workplace you need to use on the job. This obligation is not limited to your workspace, but includes all areas of the office or work site that you use on a regular basis, including hallways, conference rooms used for meetings or training, restrooms, lobbies, elevators and cafeterias. An employer can also be required to make accessible equipment that you use as part of your job.
What if I am concerned about my safety in the workplace?
You also have the right to the modifications you need to allow you to move around and function safely in the workplace, such as changes to equipment that protect against dangerous situations or additional training on how to avoid safety problems. If you have a visual impairment, this may include removing protruding objects that obstruct pathways and could cause you to fall, installing tactile strips at the edges of stairs to alert you to their presence, placing Braille signage in elevators, or moving your work space so that you can see possible dangerous situations, instead of having to rely on hearing.
If you are deaf or hard of hearing, you may need an alternative warning system to warn you of emergencies if your employer uses an audible alarm in the workplace. The most effective alternative systems in these circumstances generally use flashing lights or text pagers given to employees. Some employers rely on hearing employees to find and assist employees who are deaf or hard of hearing in an emergency. Although such a system may be useful as an additional level of protection, it is not an adequate substitute for an automatic emergency alert system. In an emergency, the hearing employee will often be preoccupied with his or her own safety and may not adequately protect the employee who is deaf or hard of hearing.
Can I bring my service animal to work?
Your employer generally must allow your service animal to accompany you on the job as an accommodation, even if it has a policy of not allowing "pets" in the workplace. This may not be required where the animal might pose a threat to the health or safety of other people, such as in the patient care areas of a hospital or on a food service line.
Can I get printed materials in accessible formats?
Just as you have a right to job applications and hiring materials in alternative formats (page 21), you have a right to receive printed materials related to your job in alternative formats such as Braille, large print, audio tape or computer disk if you need these formats. This requirement applies to job-related materials such as employee handbooks, company policies and training materials. If you have a hearing disability, your employer may also be required to provide captioning on videos shown in the workplace, including those shown as part of employee orientations and training sessions.
How do I make sure I get effective communication on the job?
You are entitled to accommodations that allow you to have effective communication on the job. The accommodation required will depend on the situation. The more important the material being conveyed, and the larger and lengthier the meeting, the more important it is for you to have the best possible communication, such as an interpreter. For other, more routine exchanges of information; an interpreter may not be required.
For many deaf or hard of hearing employees, interpreters are the most effective form of communication and are required at events such as employee orientations, meetings, trainings, and discussions of safety procedures. These types of events often involve large groups of people and the presentation of extended, detailed information which you need to understand fully. It is also particularly important that interpreters be provided at meetings that directly affect your employment and opportunities for promotion, such as performance reviews and disciplinary procedures. On the other hand, many employees are able to use lip reading, passing notes, or less qualified interpreters such as coworkers for brief communications like daily status meetings or directions from supervisors.
If you are provided an interpreter, the law requires that the interpreter be qualified and capable of communicating the information being presented so that you can understand it, although the interpreter does not have to be certified. If specialized information is being presented that relies on industry terminology, the interpreter should have enough knowledge to allow you to understand what is being communicated.
Employers sometimes attempt to satisfy their duty to provide interpreters by using a coworker or supervisor who "knows some sign language" or "has a relative who is deaf". While this may work in some situations, it is often ineffective because the person serving as the interpreter knows too little sign language to communicate effectively, or is too busy with his or her own job duties to interpret effectively in the required situations. Inform your employer if you are having difficulty understanding what is being said with the aids or services that you are being provided.
What if I need special equipment?
An employer may also be required to purchase and install adaptive equipment or assistive devices that will help you on the job. Employers often assume that "adaptive equipment" includes only complicated and expensive computer and electronic equipment, and are reluctant to provide such equipment. However, there may be simpler solutions that meet your needs; often all that is needed is a simple modification to existing equipment. The "Suggested Accommodations" section lists some adaptive equipment that individuals with hearing and vision disabilities may be able to use on the job.
Even if the equipment you need is expensive, there may be financial assistance available to your employer to offset some of the cost. For example, the California Department of Rehabilitation may pay some or all of the cost of adaptive equipment, and federal tax credits may be available as well. See the "Financial Assistance" section of the Resource Guide on page 63 for more information.
You can work with your employer to determine the adaptive equipment that will work for you on the job. There are organizations that can provide technical assistance about the accommodations that might work for you. Some of them are listed in the Resource Guide on page 61. Also, if you have received an evaluation from an agency such as the Department of Rehabilitation that specifies the equipment or devices you need, this can be a useful tool for demonstrating your needs to your employer, although your employer is not required to accept an outside agency's assessment of your needs.
If you need specialized computer software, such as a screen reader for use at work, this software will often have to be integrated into the company's computer network. This can be a challenge, since not all computer systems support all adaptive technology and software. Generally, an employer is allowed to choose the computer and other technical systems that it needs to operate its business, but it may be required to make modifications to those systems to accommodate the software you need. If the software you need cannot work with your employer's systems, your employer is still required to try to accommodate you in other ways. Similar challenges can also occur after you have started working, if the company decides to upgrade or change its computer systems.
Does my employer need to provide me with equipment that I use outside the workplace?
Your employer does not have to provide equipment that you use in everyday life outside of your job. For example, an employer does not have to provide you with eyeglasses, a guide dog, or a hearing aid. However, your employer can be required to allow you to use the equipment on the job. Also, if you are allowed to work from home, your employer may in limited circumstances be required to provide you with adaptive equipment you need to do your job at home, if it is the kind of equipment you would need when working in the office.
You are free to provide your own adaptive equipment if you wish. For example, you may have a personal computer that you wish to bring to work and use on the job, and your employer should allow you to use it. You may be able to convince your employer to pay for the maintenance and repair of your equipment if you use it extensively at work and if it is equipment that the employer would otherwise be required to provide and pay for, although the law does not specifically require an employer to do this.
What modifications to job duties can be required?
An employer may also be required to modify the work you do, including changing the duties of your job, modifying work schedules, or transferring you to another job. The following paragraphs list some common modifications.
Job restructuring-This occurs when an employer changes the functions that must be performed by a particular employee in a particular job as an accommodation. The employer may, for example, have you trade certain job functions with another employee. An employer, however, does not have to reassign essential job functions in this way, and does not have to make substantial changes to a job.
Modified work schedules-As another possible accommodation, the employer might provide you with a modified work schedule. For example, you might need time off to attend regular medical appointments or a different start time because you have to take public transportation. Whether this kind of modified schedule is required depends on your job duties and whether that kind of change would be disruptive for your employer. For example, if you work at a specific station on an assembly line and must be available throughout your shift, a modified work schedule would not be reasonable or required. On the other hand, if your job duties can be performed equally well at different times of the day, this accommodation is more likely to be required.
Predictability is also important. Employers are not required to tolerate frequent unpredictable absences or to allow you to work "whenever you feel up to it", but can be required to allow you to make regular, predictable changes to your schedule to attend to your medical or other needs.
Reassignment-Finally, under some circumstances you may be reassigned to a vacant position if you can no longer perform the job you now hold. Typically, reassignment situations occur when a worker suffers an injury (either on or off the job) and can no longer perform duties he or she previously performed, but it can also happen in other situations, such as when a preexisting condition deteriorates or when job duties or technology change.
Only current employees have a right to reassignment. If you are applying for a job, you must be able to perform the essential functions of the exact job for which you are applying.
In order for you to be reassigned, there must be a vacant position open at the company, or one must open up within a reasonable period of time. Your employer is not required to create a new position simply so you can be reassigned, and it is not required to "bump" another employee from his or her job to give you that position. You also must be qualified for the new position, and reassigning you to the position must not violate any existing company rules or policies, such as a seniority system.
Can I get additional sick leave?
You may be entitled to an exception from the employer's sick leave policy if you need additional time off because of your disability. Most employers will allow an employee to take a limited amount of time off to recover from an injury or illness. If, at the end of the allowed sick leave period, you need additional time to recover, this may be granted as an accommodation if it is clear when you will be able to return to work. An employer does not have to hold open your job indefinitely. It is only required to allow you a relatively brief extension of the sick leave given to nondisabled employees, if you will be able to return to work in the near future. An employer is not required to pay you while you are on sick leave if it does not provide paid sick leave to nondisabled employees.
You may also be entitled to leave under the Family and Medical Leave Act (FMLA). The FMLA allows eligible individuals to take an unpaid leave of absence from work (or to reduce work hours) to deal with a serious physical or mental health problem needing inpatient care or continuing treatment from a health care provider (or to take care of certain other family needs). You may take up to 12 weeks of unpaid leave in a year if (1) your employer has at least 50 employees within 75 miles of your work site or is a public or local education agency, (2) you have worked for your employer for at least 12 months, and (3) you actually worked at least 1,250 hours during the 12 months immediately preceding the leave. While you are on FMLA leave, the employer must normally hold your job open for you until you return and must also maintain any group health insurance coverage it provides for you during your leave. You should be aware that there are very specific steps you must take if you want an absence to count as FMLA leave. If you do not follow all the rules, you may be fired. For more information on FMLA leave, contact the U.S. Department of Labor (page 63). The California Family Rights Act (CFRA) provides the same rights under state law.
Do I have to answer medical questions or have a medical examination on the job?
Once you begin work, an employer may not force you to have a medical examination or seek medical information about your condition unless it has a reason that is "job related and consistent with business necessity" (page 11 ). A medical inquiry might be appropriate, for example, when you are having difficulty performing your job because of a possible disability, or when you request an accommodation and your employer needs to determine if you actually suffer from a disability. All of the restrictions that apply to medical inquiries made after a job offer (pages 24?25) also apply to medical inquiries while on the job; the results of such an inquiry must be kept confidential and cannot be used to discriminate on the basis of disability.
If I assert my legal rights, does the law protect me from retaliation?
Yes. An employer may not retaliate against you by taking any harmful action against you because you have exercised your rights or taken an action protected by law. These actions include requesting an accommodation for your disability, speaking to a government agency about your situation, or filing a charge of discrimination with the government. You are protected from retaliation even if it is later found that you did not suffer any discrimination.
Chapter 4: Asserting and Protecting Your Rights
This chapter offers some suggestions on how to successfully protect your rights during the hiring process and how to deal with problems that might arise.
This chapter focuses on how your disability might affect your job search, and does not address many other things you need to do while looking for a job, such as developing a good resume, carefully researching available jobs and interviewing well If you need help in any of these areas, there are many books and other resources on the job search available from your local library or bookstore or on the Internet.
Laws prohibiting discrimination have removed many barriers, and technology has made new opportunities available. Investigate all of the jobs that you are interested in, and do not be afraid to think big. At the same time, be prepared to recognize when public safety concerns or other barriers will give employers the right to refuse you a job. You can advocate to break down these barriers while you pursue your other options.
You may want to consider whether it will be useful to educate your interviewer about your disability and how it affects your work. Although awareness of people with disabilities is increasing, some employers still have little knowledge about or experience working with people with disabilities. Employers may think that people with disabilities are costly, because they associate disabilities with expensive accommodations or high health care costs. These employers may not know exactly how much accommodations cost, and they may not realize that just because you have a disability does not mean your health care is expensive. There may be situations during the hiring process when talking about your disability and how it affects (or does not affect) your work and health can help address these fears. There are no easy rules about whether and when you should do this, but you may want to think in advance about when it would be worthwhile to discuss your disability with your employer, and whether you would feel comfortable doing so.
What can I do to protect my rights during the hiring process?
Your disability can be a factor at different stages of the hiring process, including when submitting an application, taking part in a job interview, and undergoing other tests or examinations. This section includes suggestions for dealing with some of these situations.
Requesting accommodations that you need-Since you have a right to reasonable accommodations during the hiring process, you can request accommodations if you need them. However, you should also consider alternatives that can avoid the need to ask for accommodations during the hiring process, since some employers may react negatively to accommodation requests.
If you need help filling out a written job application, you can (1) ask someone who works for the company to assist you in filling out the application, (2) ask the employer if you can provide the information orally, or (3) take the application home with you, where you can get help in filling it out and bring it back later.
If you need the application or other materials in an alternative format, such as Braille or audio tape, you can (1) ask the employer for the format you need, or (2) take materials home with you so you can get assistance reading them. Although some employers (especially larger ones) may have copies of these materials in the needed format on hand, many do not, so if you request them, expect a short delay.
If you will need the employer to provide an interpreter or other accommodation at the job interview, ask for it in advance. You can also bring a friend or family member to interpret for you. Although you are not required to bring your own interpreter to the interview, it may be a good idea if you think the employer will be concerned about the cost of providing interpreters.
If you do request accommodations during the hiring process, it is a good idea to do so in writing, or to follow up an oral request with a letter. See Sample Letters 1 and 2 (pages 56?57) for examples.
Providing documentation-An employer may ask you to provide documentation showing your need for an accommodation. Try to get such documentation from a doctor, preferably one who regularly treats your condition. Documentation from another professional who has worked with you and knows your limitations and abilities, such as a rehabilitation counselor, might be sufficient in some cases, especially when your medical condition is obvious and the only issue is what accommodation is appropriate.
Good documentation is specific about the limitations your condition places on you (such as your specific level of vision or hearing loss) rather than one that simply identifies your medical condition.
When an accommodation is not provided- In spite of their legal obligation, some employers may not readily provide the accommodations you need.
If you are told needed accommodations (like an interpreter) won't be provided, ask the person who tells you this the reason why they will not be provided.
Restate why you need the accommodation and explain that it would be beneficial to both sides for it to be provided so that you can be evaluated fully and fairly and so that you will have all the information you need to make an informed decision about the job.
You may mention that you are aware of your legal right to reasonable accommodation (pages 14?17), but calling the employer's conduct illegal or threatening legal action at this stage will likely put your employer on the defensive.
If you still do not get what you need, you may want to write a letter to the company outlining your need for the accommodation, or ask to speak with a supervisor.
If you are promised an accommodation that is later not provided (for example, you arrive at a job interview and the interpreter you were promised is not present or is unsatisfactory), ask to reschedule the interview, test or other part of the hiring process you need to complete.
Interview questions-You may also be asked inappropriate or illegal questions on a job application or in an interview (such as whether you have a disability or a question about your diagnosis). See the section "Can I be asked questions about my disability or told to go for a medical examination?" on page 24 for more information on questions an employer cannot ask.
As a general rule, never tell the interviewer that the question is illegal as you might put him or her on the defensive.
Never lie in response to an improper question; lying on an application or in an interview is grounds for termination if it is later discovered.
On an application, you can answer "not applicable" to an improper question.
You can leave an improper question blank, although this might prompt the employer to ask more specific questions on that subject.
In an interview, you can decline to answer questions that you feel are embarrassing or inappropriate.
If you decline to answer a question you think is inappropriate either on an appli-cation or in an interview, you may be pressured by the employer to give an answer. If this happens, you will have to choose whether to answer the question or to risk being rejected for the job, based on how you believe the employer will react and how uncomfortable the question is for you to answer.
Explaining gaps in time-If your resume contains time gaps between jobs or schooling that are related to your disability, you may have to explain these to an employer.
A way to do this is to say that you took time off for personal reasons, without explaining what those personal reasons were.
If the employer probes for more information or seems suspicious, you can specifically explain the gap; however, this may lead the employer to reject you (illegally) simply because of your disability.
When should I tell an interviewer about my disability?
You may not have a choice about whether to let an employer know about your disability. Your disability may be obvious because, for example, you use a service animal or communicate using sign language through an interpreter. However, other disabilities may not be as obvious, and you may need to decide whether to reveal yours to an employer. Here are some things to consider:
If you will need accommodations on the job, you must let your employer know that you have a disability when you ask for these accommodations.
You do not need to raise the issue of accommodations until you have been offered a job. It is often not a good idea to bring up your need for accommodation before you have to. For example, you may not want to talk about your need for accommodation during the initial job interview.
On the other hand, some advocates believe that it can be useful to reveal your disability in order to address concerns that your interviewer may have. By law, job applicants do not have to draw attention to their disability. However, interviewers may feel pressure to save their employers money, and some interviewers associate disabilities with expensive accommodations or high health care costs. These interviewers may not actually know the cost of your accommodation or health care, and by law they are not allowed to ask you. As a result, an interviewer could deny you a job based on their fear that your disability is expensive. It may be hard to prove later that this is why they did not give you the job.
If you believe your interviewer may have concerns about hiring you because of the costs of your accommodations and/or health care, you may want to address them during the interview. You may choose to tell your employer about the cost of your accommodations and/or health care, as well as any tax credits or other financial assistance that your employer can get for accommodating you. See the "Financial Assistance" section of the Resource Guide on page 63 for more information on financial resources that might be available.
There are simple ways you can educate your employer about the cost of accommodations you may need. For example, if you requested a sign language interpreter for the interview but do not need one for most aspects of the job, you may want to mention this to your employer. Nevertheless, never settle for less than you need.
It is up to you whether to disclose your disability. Whether to do so depends on what you feel personally comfortable with and how you think the employer might respond to your disability.
What can I do to increase my chances of finding a reasonable accommodation?
When you request a reasonable accommodation for your disability on the job, you begin a process of formal or informal discussion between you and the employer about the needs of the job and your capabilities, designed to find an appropriate and effective accommodation. This section offers suggestions on how to increase your chances of getting the accommodation you need.
Deciding when to request accommodations-If you will need accommodations on the job, deciding when to ask for them can be difficult, especially if you do not need those accommodations during the hiring process.
It is often a good idea to wait until you have received a job offer before requesting accommodations that you will need on the job. A potential employer may have a negative reaction to an accommodation request, and, even though this would be discriminatory, it is often difficult to show that this is why you were not hired.
If, however, you receive the job offer before requesting the accommodation, this can deter the employer from discriminating-in part because the employer has already decided you meet the job's other requirements, and in part because any subsequent discrimination would be easier to prove.
However, you have a right to request accommodations you will need on the job at any stage during the hiring process, even if you have not received a job offer.
Provide documentation?During the accommodation process, you may be asked to provide medical documentation about your disability.
Most employers will ask for some documentation from a doctor or other professional early in the accommodation process, in order to confirm that you have a disability and to determine how your disability affects your work. This will also help determine what kind of accommodation would be effective. You should be prepared to provide medical documentation when the employer requests it.
As with documentation you might need for accommodation requests during the hiring process (page 39), this documentation can come in the form of a letter from your treating physician, another doctor who knows your condition, or another specialist such as a rehabilitation counselor, and should focus on the specific effect your disability has on you.
You should provide your doctor (or the professional providing the documentation) as much information as you have about the requirements and duties of the job, so that person can fully evaluate your need for accommodations.
Your employer can ask you to provide more information or you can be referred to a doctor or other professional of the employer's choosing at the employer's expense.
Suggest accommodations-Be ready to suggest accommodations that you think will work for you.
Consider all available accommodations, but be confident that a particular accommodation will work for you before you suggest it to an employer.
If there are several accommodations that you think would work, suggest all of them to your employer.
Express your preference for the accommodation that you would most like to have, but remember that the employer is not required to give you your preferred accommodation, only an effective one (page 16).
Use resources that can help you identify possible accommodations, such as rehabilitation counselors and local agencies that serve the blind/low vision and deaf/hard of hearing communities. You can also consult the resources listed in the "Information on Accommodations" and "Assistive Technology" sections of the Resource Guide (pages 61?62). You might also want to research the cost of an accommodation that you think might be expensive.
If a rehabilitation counselor or other professional is helping you in your job search, you may want to have them participate in discussions you have with your employer about accommodations.
Make a written record-You can help protect your rights and avoid later confusion about the accommodation you are provided by maintaining a written record of the process.
Whenever possible, communicate your accommodation requests and other information to your employer in writing (see Sample Letters 2 and 3 on pages 57?58).
Since the process can be informal, communicating with your employer face to face or over the telephone is fine. It is, however, a good idea to send a confirming letter or e-mail after each important development in the process. For example, when you suggest accommodations to your employer in person or over the phone, you should take notes on the conversation and repeat these proposed accommodations in writing. This maintains a record of the process and avoids confusion about what you actually requested.
When you and your employer agree on an accommodation, you should try to get an acknowledgment in writing, either by having both you and the employer sign an agreement spelling out the accommodation or by sending a confirming letter to the employer, which gives it the opportunity to respond if there are any misunderstandings about the accommodation (see Sample Letter 4 on page 59).
However, employers are not required to agree to accommodations in writing, and some may be reluctant to do so. Also, such a written agreement may not be legally enforceable if it provides accommodations beyond what the law would require.
Keep copies-Remember to keep copies of all documents related to your accommodation request, including letters to or from your employer, documentation you submit in support of your request, notes of conversations with your employer, and any written materials you receive from third parties such as rehabilitation professionals.
Keeping good records will help you establish what happened and protect your rights if there is a dispute about the accommodation.
What steps can I take to assert my rights effectively?
Knowing how, and when, to assert your rights is very important when looking for a job. This section gives suggestions on how to effectively assert your rights while going through the hiring process or discussing disability-related issues with an employer.
Use proper procedures and be polite-Your credibility is always greater when you follow the rules and use common courtesy.
Always treat your interviewer, supervisor, and anyone else associated with your employer with respect, even when you think they are being unreasonable and you are upset by their actions.
Acting in an angry or hostile manner may destroy any respect and sympathy your employer might have and it will give the employer an excuse to reject your application or take other action against you (because your employer can then claim it was because of your rude behavior, not your disability).
It is better to stay calm and insist on your rights, while keeping a written record of any unreasonable actions your employer takes.
Have reasonable expectations- The ADA and other disability discrimination laws only give you the right to have an equal opportunity to compete for a job.
You do not have the right to any particular job, nor do you have the right to "special treatment" because of your disability. As such, it is not a good idea to tell an employer that you are entitled to these things.
Be cautious when threatening legal action-The threat of a lawsuit may encourage an employer to fulfill its legal obligations, but often it will have the opposite effect of hardening the employer's position and causing a breakdown in communication.
Let your employer know that you are aware of your legal rights, but do not threaten legal action until you have gotten advice from an attorney.
It is generally a bad idea to tell an employer that its actions are "illegal", since it is often difficult to determine exactly what conduct is legal and this judgment is best left to experienced attorneys. If you need to do so, it is much better to describe an employer's conduct as "unfair" or "unreasonable".
Work with others with similar problems-Find other people who have had similar experiences with your employer. Learn about their situations and about their interactions with the employer as they may be able to let you know which supervisors and managers are receptive to the needs of workers with disabilities, and can suggest strategies for dealing with the employer that have worked for them. In some cases, you might even want to take joint action with them.
How can I deal with common objections raised by employers?
Employers can have many reasons for being concerned about hiring you as a person with a disability. Some of these concerns are legitimate, but some may not be. Below are some of the more common concerns and misconceptions that an employer may express to you, as well as some possible responses. There are many other possible responses, and it will help you to be prepared to respond to these misconceptions in a way that feels comfortable to you.
If they say "It's too expensive"- Employers are always concerned about the bottom line, and many are uncomfortable with any accommodation that might be costly. However, many accommodations are not as costly as employers believe, so it is important that you know as much as possible about how much your preferred accommodation will actually cost.
Consider responding: If it will not in fact be expensive, let the employer know and give accurate information on what it will actually cost. If the accommodation you need will be expensive, consider less expensive accommodations that might also be effective. If nothing else will work, be sure to stress to the employer your qualifications for the job, and explain how these will outweigh the cost in the long run.
If they say "That's not the way we do business here"- Even when accommodations are not costly, some employers will resist any changes in the way they operate or the rules they expect employees to follow.
Consider responding: If an employer raises this objection, remind them that the law requires accommodations, which can include changes to how the employer does business (although such changes are only required if they are reasonable and would not pose an undue hardship; see pages 14?15 for a discussion of this requirement).
If they say "It would be unfair to other employees"-Employers sometimes object to accommodations because they perceive them to be unfair, or because of fear that other employees would resent what they perceive as "special treatment". However, many employees do not in fact object to accommodating workers with disabilities.
Consider responding: Let the employer know that you are not seeking special treatment, but only a level playing field with accommodations you will need to be able to do the job in the same manner as workers without disabilities.
If they say "We hired a blind (or deaf) person last year, and it just didn't work"- Some employers may assume that because they could not accommodate one person with a particular disability, that they will not be able to successfully accommodate anyone with that disability.
Consider responding: All individuals are different, and the effects of a disability can be dramatically different on two people, even if they share the same condition. Tell the employer that you only want to be evaluated based on your individual abilities, and that the law requires employers to assess each person individually, rather than relying on generalized assumptions, stereotypes, or past experiences with other employees.
How can I deal with uncooperative employers?
In spite of your best efforts, some employers may still be unwilling to give you the accommodations that you need in the hiring process or to consider you fully for the job, and may even be hostile to you because of your disability. Below are some suggestions for handling situations where the employer seems uncooperative.
Be persistent-Ask the employer to reconsider a decision not to provide you with needed accommodations, and offer to provide more information if it would be helpful. It is a good idea to put these requests in writing.
Although you should give the employer another chance to make the right decision, you do not need to persist after it has become clear to you that the employer will not reconsider its actions.
Ask for a reason-If it is not clear to you why your accommodation request was denied or why you did not get the job, ask the employer for the reasons in writing. You are not entitled to a response, but many employers will give one.
If the reason given is not one based on your disability, you may want to investigate whether it seems like a legitimate reason or whether the employer is simply using it as an excuse to discriminate. For example, if you are told that the position has been filled, but the employer advertises the same position in the newspaper the following week, this suggests that discrimination may have occurred.
Talk to a supervisor-It may be helpful to talk to the supervisor of the individual who you feel is not treating you fairly. He or she may be more aware of the company's legal obligations or more sympathetic to your position.
Also, some employers (especially larger ones) may have formal procedures in place to appeal the denial of a reasonable accommodation request. Investigate whether or not this employer has such procedures.
Talk to human resources-Human resources personnel are responsible for knowing the laws about hiring and accommodating people in the workplace. Often, the person responsible for making a decision about an accommodation request may not know the law very well and may not turn to human resources for help. You may want to talk to human resources personnel and make them aware if you think a violation has occurred.
Contact your union-If you are a union member, you may be entitled to representation by your union.
Your union contract may also be violated by your employer's actions, and this may violate laws other than disability discrimination laws.
If you are a union employee, you should contact your union for assistance, in addition to seeking assistance from a government agency, as described below.
When should I take legal action?
If you believe that your rights have been violated by an employer, and you have been unable to resolve the issue informally by communicating with the employer, you may want to consider taking legal action.
Depending on your situation and who your employer is, you can bring legal action under one or more state and federal laws (page 8). If you win a lawsuit, you may be able to recover money you should have earned in wages after the discrimination occurred, and a court may order that you get the job or promotion you should have had. You may also be able to recover monetary damages in addition to your lost wages, but it is not common for plaintiffs to win very large damage awards in these situations. Also, you may not be able to recover these kinds of damages under the ADA if your employer is part of a state government. Certain state entities have received immunity from damage claims under the ADA. However, other state and federal laws may provide for damages claims against state entities.
There are several factors to consider in deciding whether to pursue a legal remedy, including:
The strength of your allegation of discrimination-The stronger the evidence you have of discrimination, the more likely your case is to be successful. The fact that an employer did not hire you for a position, by itself, is not likely to lead to successful legal action. Where you have been told that you were not hired because of your disability, or were denied an accommodation for which you have a documented need, your case would be stronger.
The time required to resolve a legal dispute-Even if you are successful, settling the dispute will take a minimum of several months, and could take years if a lawsuit is necessary. For this reason, it is a good idea to begin looking for another job while you pursue legal action. If, in the end, you are successful in your legal claim, you may be entitled to reinstatement in your old job, in addition to damages or other relief.
What is the first step I need to take in pursuing legal action?
If you are interested in taking legal action, your first step should be to file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC). The EEOC will then investigate your claim and attempt to negotiate a solution if it finds evidence of discrimination. Once the EEOC has finished its investigation, it will send you a "right to sue" letter, and you then have the right to bring a lawsuit. In California, the Department of Fair Employment and Housing (DFEH) is a state agency that investigates claims of disability discrimination; you can file a charge with the DFEH instead of or in addition to filing with the EEOC, and the EEOC may refer your charge to the DFEH for investigation. If you file a charge with the DFEH and not the EEOC, you should request that the DFEH also refer your complaint to the EEOC, so that both agencies can investigate your complaint if necessary. Also, if your employer has between 5 and 15 employees, or if you have a condition that does not severely limit your ability to see or hear, it is a good idea to file a charge with the DFEH, because you are more likely to be protected by state antidiscrimination law than by federal law.
If your employer is part of state or local government, you should file a charge with the U.S. Department of Justice (DOJ) in addition to the charge you file with the EEOC and/or the DFEH. If your employer receives funds from the federal government, you can also file a charge of discrimination with the Office of Civil Rights of the federal agency that provides the funding (for example, the Department of Education's Office of Civil Rights).
Even if you are not sure you want to file a lawsuit, in order to preserve your right to sue, you need to file a charge of discrimination as soon as you are sure you cannot resolve your problem yourself. You must file an EEOC charge within 300 days of the discrimination, and you must file a charge with the DFEH within 365 days.
What will happen after I file a charge with the EEOC?
This section describes the process for filing a charge of discrimination. It focuses on the EEOC, but the process at the DFEH is very similar. To file a charge, contact your local EEOC office (contact information for the EEOC can be found in the "Legal Resources" section of the Resource Guide on page 63). You will normally have a meeting with an EEOC employee who will ask you about your problem and help you file the charge. It is important that this charge be as complete and accurate as possible, so that your rights are fully protected. You should bring any documentation and other information you have about your problem to this meeting, and you may want to prepare a summary of what happened in advance to be sure that you do not forget anything.
After the charge is filed, the EEOC will investigate the charge to determine whether it has cause to believe that discrimination has occurred. If the EEOC believes that discrimination has occurred, it will attempt to settle your case through negotiation with the employer (also called "conciliation"). Through conciliation, the EEOC will try to work with you and your employer to reach a settlement of your complaint that both sides can accept. Although it does not always work, conciliation can resolve your dispute much faster than litigation, which can often take a long time.
If negotiation fails, the EEOC may decide to bring a lawsuit on your behalf. However, because of the EEOC's limited resources, it cannot bring lawsuits in many cases in which discrimination has occurred. If the EEOC decides not to bring a lawsuit, or if it does not find any reason to believe discrimination has occurred, it will issue you a "right to sue" letter. Once you receive this letter, you are free to seek a private attorney to represent you in a lawsuit. You should act quickly, since you have a limited time once you receive the letter to file a lawsuit. Even if the EEOC finds that no discrimination has occurred, this does not prevent you from filing a lawsuit, and does not mean that your employer did not act illegally.
Do I need an attorney to file an EEOC charge?
You do not need to hire an attorney before you file an EEOC charge of discrimination. You can meet with an EEOC employee and provide the information needed to file the charge without having an attorney present. In fact, some attorneys are unwilling to consider taking your case until after the charge has been filed and the EEOC has decided whether to take the case. Do not delay filing your EEOC charge while you try to find an attorney to take your case; if you do not file your charge in time, you lose your right to bring a lawsuit.
If the EEOC does not settle your case or bring a lawsuit on your behalf, you should hire an attorney if you want to file a lawsuit. Many private employment attorneys will take discrimination cases on a "contingent fee" basis, which means that you do not pay any legal fees to the attorney unless you win your case. Other sources of free or low-cost legal help can be found in the "Legal Resources" section of the Resource Guide on page 63.
When looking for an attorney, you will need to explain the facts of your case to the attorney and will probably want to provide copies of all documents you have relating to your case. Be sure that the attorney you choose has experience handling cases like yours and can communicate effectively with you. Also, make sure you understand exactly what the attorney will do to help you and how he or she will be paid.
Resource Guide
Suggested Accommodations
This section contains a list of changes in the workplace that have been or may be used as reasonable accommodations. This list is not complete, and the descriptions it gives of accommodation ideas are brief. For more information on these accommodations, or on others not included, contact the resources in the Resource Guide, especially the Job Accommodation Network (page 61).
An accommodation is only required by law if it is reasonable and will not cause your employer significant expense or inconvenience. Whether any particular accommodation is required will depend on the facts of your situation. Not all of the accommodations on this list will be reasonable in all circumstances. Before suggesting or agreeing to an accommodation, try to make sure that it is reasonable for the employer to provide and that it meets your needs. (See the section "What types of accommodations is an employer required to provide?" on pages 14?15 for more information on what accommodations are required.) Keep in mind that many of these accommodations are not very expensive at all. In fact, some of them do not cost anything.
Accommodations to Improve Physical Access
? Providing Braille or tactile signage in buildings and elevators
- Providing tactile warning strips to warn of steps or other possible hazards
- Providing colored strips at the edges of stairs to improve contrast and make the stairs more visible
- Removing objects that protrude into the path of travel
- Providing visual notification of audible emergency alarms through flashing lights, vibrating pagers, or other means
- Modifying carpeting, positioning of equipment, or other aspects of the workplace to reduce background noise
- Allowing service animals at work
Accommodations to Improve Communication for Individuals Who Are Deaf or Hard of Hearing
- Installing a TTY at your desk or workspace for your use
- Providing a portable TTY or one that can be hooked up to a cell phone (this can be especially useful if you travel as part of your job and need to keep in contact with other employees)
- Installing a telephone with volume amplification capabilities
- Providing a telephone that is compatible with your hearing aid
- Providing assistive listening systems, which are designed to help you concentrate on sounds by masking background noise
- Modifying workplace practices to minimize the extent to which you need to use voice mail (most voice mail systems in use today are difficult to access using a TTY)
- Communicating using text pagers
- Communicating using e-mail or instant messaging software (this can eliminate much of the need to talk on the telephone)
- Providing a qualified interpreter for meetings or other communications
- Providing written notes of meetings or other oral communications
- Using a qualified hearing employee to take notes or communicate what is being said at meetings
- Training coworkers in some basic sign language to communicate with you (alphabet, numbers, simple phrases and words)
- Tape recording meetings (this can allow you to listen to what is being said at a meeting under ideal listening conditions)
- Providing televisions with built-in closed captioning devices
- Captioning videos you must watch on the job (this works for many people, but you may prefer to have an interpreter for videos)
- Providing larger or additional mirrors in company vehicles to assist you in driving
- Providing real time captioning at meetings
Accommodations to Improve Visual Access for Individuals Who Are Blind or Have Low Vision
- Providing a hand-held or stand magnifier for reading printed materials
- Providing a closed circuit television system to magnify printed materials (these provide higher magnification levels and more options, such as inverting foreground and background colors, than a magnifier)
- Providing optical character recognition (OCR) technology, which scans printed pages and converts them into computer files that can be magnified on the screen or read with screen reader software
- Providing an external computer screen magnifier (placed in front of or attached to the screen to magnify it)
- Making sure all materials are provided on disk so employees can access all printed materials using their assistive technology
- Providing a larger computer monitor
- Providing screen magnification software (software that magnifies all or part of a computer screen to make it easier to read)
- Providing screen reader software (software that provides voice output of text displayed on a computer screen)
- Providing a computer Braille display (a device that can convert electronic information into raised Braille dots and allows Braille readers to use a computer)
- Providing a Braille printer or Braille embosser (devices which print Braille characters on paper)
- Providing a light sensor (a device that gives an audible signal when moved over a light) to allow an employee to tell when indicator lights are lit, such as those on a phone switchboard
- Providing large print or tactile labels for buttons or other controls on office equipment (such as computer keyboards or fax machine control panels)
- Providing written materials in Braille, large print, or on audio tape
- Providing a qualified reader
- Providing assistance in filling out applications or other paperwork
- Changing the lighting in the workplace to reduce glare on printed materials or to make print easier to read (this could include changing the intensity of overhead lights or providing task lighting such as a desk lamp)
- Providing a phone with large buttons or large capacity memory dialing
- Allowing frequent breaks from work to relieve eye fatigue
- Providing devices that can help you identify money, such as a talking money identifier, a talking cash register, or a coin sorter
- Redesigning company web sites (including those used by employees as part of their jobs) so that they are accessible to anyone with a disability
Accommodations to Give You Time Off When Necessary
- Providing paid or unpaid leave, beyond what the company provides to all employees, for time off to care for your disability
- Allowing you to use accrued vacation or sick leave for time off to care for your disability
- Modifying your work schedule to allow you to attend medical appointments or otherwise care for your disability
Sample letters
It is often helpful to make requests and conduct other communications with your employer in writing. Doing this helps to avoid misunderstandings and creates a written record that can be useful if legal action becomes necessary. This section includes sample letters that may be useful guides in responding to common situations in which you should write a letter to your employer.
The following draft letters are only intended as guides. Be sure to modify them to include specific details about your situation and what you personally need. All names, phone numbers and addresses in these letters are fictitious and need to be replaced with the correct information. If you have questions about what to write in a letter, you may want to contact a job counselor or an attorney.
It is always a good idea to have someone else proofread the letter for you in order to ensure that what you have written is clear and concise.
Sample Letter 1: Requesting an Interpreter for a Job Interview
April 18, 2003
Jim Smith
ABC Corporation
555 Corporate Parkway
Oakland, CA 94655
Dear Mr. Smith:
I recently applied for the position of assistant art director in ABC's publications group. I am writing to request that a sign language interpreter be provided at the job interview we have scheduled on Thursday, April 24.
As I informed you when we met at your office, I am profoundly deaf and use American Sign Language (ASL) as my primary means of communication. Although I can conduct brief communications by passing notes, as I did with you at your office today, I require an interpreter to fully understand what is being communicated during a lengthy, important meeting such as a job interview. Therefore, I am requesting that I be provided a certified sign language interpreter for this interview and any subsequent interviews, trainings or meetings which may be part of the application process.
If you need assistance in finding a qualified interpreter, you can call the Interpreter Referral Service at [insert number]. If you have any further questions, please do not hesitate to contact me.
Thank you again for considering my application. I look forward to meeting you again at the interview.
Sincerely,
Alice Smith
Sample Letter 2: Requesting Accommodations During the Hiring Process
April 24, 2003
Edith Jones
XYZ Corporation
1001 Main St.
Sacramento, CA 95801
Dear Mrs. Jones:
I am writing to follow up on the conversation we had today. I visited your office to apply for the position of customer service representative at XYZ's call center in Sacramento, as advertised on your company's web site. When I requested a job application in a format I can access, you informed me that XYZ had no applications in alternative formats but that one would be provided within several days. I am writing to confirm our discussion and to clarify which formats are most accessible for me.
I am totally blind and access printed material using either audio tapes or text-to-speech software; I do not read Braille. I would prefer to receive the application as an electronic document, either as plain text or in Rich Text Format (RTF), on computer disk. I could then complete the application and return it to you on disk. Alternatively, you could provide the contents of the application on audio tape, and I could type answers to the questions on paper and return them to you. Please also provide me with an accessible version of the complete job description for the position. I will need all printed documents used during the application process to be provided in one of these formats.
In addition, I use a service dog and will need to bring her to any interviews or other trainings or meetings conducted on your premises as part of the application process.
Thank you again for considering my application. If you have any further questions, please do not hesitate to contact me.
Sincerely,
Darrell Jones
Sample Letter 3: Requesting a Job Accommodation
May 2, 2003
Mark Smith
ZYX Publications
1000 First St.
Los Angeles, CA 90001
Dear Mr. Smith:
I recently accepted a job offer as a technical writer with ZYX Publications. I have a disability and am writing this letter to request reasonable accommodations to assist me in performing my job duties. Although my job requires that I frequently read printed documents, I am legally blind and cannot read material printed in normal sized type. Therefore I need accommodations to allow me to read the printed material I use as part of my job.
The accommodations that I prefer, and that have worked well for me in the past, are to have screen magnification software installed on my computer at work, so that I can read materials in electronic format, and to have printed material that cannot be provided in electronic format provided to me on audio tape.
Thank you for considering my request. I would be happy to provide further documentation if that would be helpful or to consider alternative forms of accommodation. I would appreciate receiving a response from you within two weeks. If you have any further questions, please do not hesitate to contact me.
Sincerely,
Richard Smith
Sample Letter 4: Follow Up Letter After a Reasonable Accommodation Agreement
April 24, 2003
Barbara Williams
ABC Industries
1 Industrial Dr.
San Diego, CA 90000
Dear Ms. Williams:
I am writing to follow up on our meeting today in which we discussed my need for a reasonable accommodation in my job as a forklift operator at ABC Industries. We discussed my need for interpreters and other communication aids because of my deafness, and reached an agreement on what ABC would provide. You agreed that for lengthy and important meetings, such as formal trainings and any performance reviews, ABC will arrange to provide a certified interpreter. At other times, I will attempt to communicate using written notes, but may request an interpreter if I am unable to understand the communication. You also agreed that ABC will purchase a text pager for me so that I can communicate with my manager when needed.
If this is not your understanding of the agreement we reached today, please contact me immediately. Thank you for your cooperation, and I appreciate your assistance in providing these accommodations.
Sincerely,
Sharon Williams
Resources
Finding Employment
Disability.gov
www.disability.gov
This web site contains a comprehensive set of links to disability-related sites within the federal government, as well as many useful sites outside of government. The employment section can help you find resources on topics such as federal employment, job search techniques, laws and regulations, and job accommodations.
California Foundation of Independent Living Centers
916-325-1690 (v)
916-325-1695 (tty)
www.cfilc.org
Statewide organization including all Independent Living Centers (ILCs) in California; visit the web site or call to find the ILC in your area. ILCs provide support and individualized assistance to persons with disabilities in a wide range of areas, including employment. Your local ILC can provide assistance in job training and placement, or can refer you to other local agencies that provide these services.
California Department of Rehabilitation
www.dor.ca.gov
The DOR provides services to individuals with disabilities who need assistance in finding and keeping employment. The DOR can provide job search assistance, training, on-the-job assistance, and assistive technology for use in the workplace. To apply for services, contact your local office.
Look in the government section (blue pages) of your phone book for the nearest office.
California Employment Development Department (EDD)
www.edd.ca.gov/eddpwd.htm
The EDD provides services and assistance to job seekers through CalJOBS, an online job listing service, its One-Stop Career Centers and other programs. It has special programs to assist job seekers with disabilities, including a deaf and hard of hearing services program.
Look in the government section (blue pages) of your phone book for the nearest office.
Social Security Administration
800-772-1213 (v)
800-325-0778 (tty)
www.ssa.gov/work/Ticket/ticket_info.html
The Ticket to Work program is a recent change to federal law designed to make it easier for persons receiving government benefits such as SSI and SSDI to return to work. If you are receiving government benefits and return to work, you may be able to keep certain benefits, such as health insurance, for a transitional period while you return to work. If you receive SSI or SSDI and wish to return to work, you should be aware of this program and its rules. Contact the SSA or visit the web page above.
Office of Personnel Management
202-606-1800 (v)
202-606-2532 (tty)
www.opm.gov/disability
The OPM maintains a web site designed to help persons with disabilities find employment within the federal government. It contains information about federal hiring procedures, special federal programs for hiring persons with disabilities, and reasonable accommodations available to federal employees.
California State Personnel Board
916-653-1705
www.spb.ca.gov/jobsgen/disabledrd.cfm
The SPB maintains a web page with information for persons with disabilities seeking jobs with the state of California, including how to get accommodations on the civil service exam and special programs for hiring persons with disabilities.
Information on Accommodations
Job Accommodation Network
800-526-7234
janweb.icdi.wvu.edu
The JAN provides information about accommodations (including suppliers and cost estimates) and can suggest possible accommodations based on your individual situation. JAN provides extensive accommodation information on its web site, and also has trained accommodation specialists who can be contacted by phone or e-mail for more individualized questions.
Pacific Disability and Business Technical Assistance Center
510-848-2980
800-949-4232
510-848-1840 (tty)
www.pacdbtac.org
Provides information to businesses and individuals about the requirements of the ADA and about assistive technology.
Assistive Technology
AT Network
800-390-2699 (v)
800-900-0706 (tty)
www.atnet.org
Provides information on assistive technology (AT) resources throughout California, including directories of service providers and of local AT advocates who can provide information and referral. Also publishes a journal of AT news and provides other AT-related information.
ABLEDATA
www.abledata.com
Database with extensive information on assistive technology products and centers.
California Telephone Access Program
800-806-1191 (v)
800-806-4474 (tty)
www.ddtp.org
Provides information on telephone services and equipment for deaf, hard of hearing, and blind individuals. Eligible companies can receive equipment free of charge.
Center for Accessible Technology
510-841-3224 (v)
510-841-5621 (tty)
www.cforat.org
Provides information, assessment, training and resources on assistive technology solutions for people with disabilities. Also provides consulting services to companies and agencies on making web sites accessible.
Blindness/Low Vision Resources
Braille Institute
800-BRAILLE
www.brailleinstitute.org
Provides a wide range of services to individuals with blindness or low vision in Southern California, including classes, rehabilitation services, and a library of books in Braille or on cassette.
California Council of the Blind
800-221-6359
www.ccbnet.org
California affiliate of the American Council of the Blind (800-424-8666, www.acb.org), a membership organization for people who are blind or visually impaired that strives to improve the social, economic, cultural and educational well-being of its members.
American Foundation for the Blind
800-232-5463
www.afbnet.org
Provides programs and information related to a number of blindness/low vision issues, including employment. The AFB web site includes AFB CareerConnect, which is a site containing job listings, job search suggestions, and other useful information. The web site also