The Parzivand Law Firm represents both employees and employers in litigation and administrative charges involving employment discrimination. A separate section of the website is dedicated to charges of retaliation, another area of the firm’s practice.
Overview of Common Employee Discrimination Claims
Federal law and, in some cases, state counterparts protect most employees from discrimination and harassment because of the following characteristics:
- Disability: disability is broadly defined so most health conditions can be considered disabilities (Americans with Disabilities Act)
- Race, color, national origin (Title VII)
- Gender (Title VII, The Lily Ledbetter Fair Pay Act, and The Equal Pay Act)
- Religion (Title VII)
- Immigration Status: This can include requiring workers to be Green Card holders or citizens (Immigration Reform and Control Act of 1986)
- Age: for those over 40 (Age Discrimination in Employment Act)
Disability Discrimination Claims
The American’s With Disabilities Act (ADA) protects a much broader group of people than those who have disabilities in the common sense of the word.
Examples of potential disabilities include:
- Migraine headaches
- Heart conditions
- Blood conditions
- Kidney stones
- Cardiovascular diseases
- Anxiety Disorders
A failure to accommodate a disability in the following way could result in a claim:
- An employee who regularly suffers from migraine headaches which cause him to be unable to concentrate at work has a disability. The employer may reasonably accommodate this employee by allowing him to take unpaid leave even if he has exhausted all of his paid time off and company policies do not allow further leave. If the employee is fired, rather than accommodated, the employee may have a viable ADA claim.
- An employee who is terminated, because a co-worker reported that he had a history of alcoholism three years ago. Under the ADA, an employee cannot be terminated based on having a record of impairment.
- An employee also cannot be discriminated against based on a perceived disability. For example, an employee who is undergoing chemotherapy but is completely able to perform his job functions may not be terminated based on his supervisor’s perception that his chemotherapy is interfering with his job.
Definition of Disability
The ADA defines a "disability" as:
- “a physical or mental impairment that substantially limits one or more major life activities”
- “a record of such an impairment”
- “being regarded as having such an impairment”
The ADA considers a “major life activity” as a broad category defined to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. It also includes major bodily functions such as immune system responses, normal cell growth, brain activity, and functions of the digestive, bowel, bladder, neurological, respiratory, circulatory, endocrine, and reproductive systems.
To the extent that a person’s disability interferes with their ability to perform their job duties, they may be entitled to a reasonable accommodation to allow them to continue their employment. A reasonable accommodation can vary based on the position and the organization. Characteristics that help determine what is reasonable include the size of the organization, the employee’s position, and available company manpower to accommodate the employee at his work location. Typically, a retail stocker at a large grocery store who misses 10 days of work due to a health condition could be more easily accommodated than a store manager who misses the same amount of time.
Examples of Reasonable Accommodations
- Leave can be a reasonable accommodation.
- Adopting a modified or part-time schedule.
- Using modified or additional equipment that enables the employee to perform their job.
- Reassignment to another position.
- Restructuring the position to meet the abilities of the employee.
No-Fault Leave Policies Can Be Discriminatory
EEOC Guidance states:
May an employer apply a "no-fault" leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its "no-fault" leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policy, is a form of reasonable accommodation.