The Importance of Notice in Disability Discrimination Cases

There are some laws that prohibit employment discrimination that require notification to an employer to trigger protections under those laws. The Americans with Disability Act (ADA) protects individuals with disabilities from discrimination in employment, public accommodations, and other settings. Employers have different obligations at different parts of the employment process.

Pre-employment obligations

The ADA obliges employers to follow certain procedures when they are considering candidates for positions they seek to fill. Because the goal of the ADA (among others) is to eliminate discrimination in employment against people with disabilities, the ADA looks at employer practices before hire, during employment, and at termination. Before an employer hires a job candidate, the employer is prohibited from asking for or eliciting information from prospective employees about any medical condition they may have. This includes asking questions about illnesses, diseases, or any medical condition they may have on employment applications or during interviews or informal chats.

The purpose of this prohibition is the recognition that employers, simply by having information about candidates’ medical issues may consciously or unconsciously makes their decisions based on this information. An employer can have bona fide occupational requirements such that they may ask about the ability to perform certain tasks associated with the job sought. However, an employer cannot ask questions about one’s health or medical history or physical abilities or limitations not directly associated with the job offered.

You got the job so now what?

Many of us suffer from unseen and imperceptible illnesses, disease and/or disabilities. Once a person has navigated the hiring process, it becomes necessary for certain individuals to disclose their conditions to their employers. This is true for several reasons. For one, the ADA requires an employee to disclose their disability if they wish to get an accommodation for their position. Also, some conditions could lead to an employee needing immediate medical care in the work place, and the employee should tell their employer for their own safety. Finally, in the case of discrimination actually manifesting, the very first defense an employer is likely to raise is that it didn’t know the employee was disabled. Early written notification, and keeping records of these communications, are key to successfully prosecuting an employment discrimination complaint. Documenting communications and keeping copies of emails, letters, etc. can help to establish that the employer knew about an employees’ disability and that it did not act legally when it knew so.

In the next installment, we will look at giving proper notice when faced with workplace harassment and the different legal rules that apply to managers and coworkers.