Under the federal law of the country, a disability is a permanent impairment that significantly hinders one or more major life activities. This applies to physical disabilities such as loss of a limb or eyesight; and mental and emotional impairments, such as learning disabilities, mental illness or developmental disorders. It also applies to having a history of illness, such as cancer, even if the disease is in remission.
In order to be defined as disabled, the person must have either a physical or mental impairment; the impairment must have a substantial adverse effect; the substantial effects must be long term; and this must affect normal day to day activities. This broad definition might mean that an employee can be classed as disabled without having a “normal” or visible disability.
On the other hand, the Americans with Disabilities Act, which is the primary law governing disability-related discrimination in the workplace, prohibit discrimination in every aspect of employment, from hiring to firing. An effective workplace anti-discrimination policy must be just as comprehensive.
For example, making jokes or offensive comments is considered discrimination under federal law, as is publicly discussing a person’s disability or inquiring about it unless necessary to determine what accommodations the employee requires. Employers also cannot limit the kinds of assignments or opportunities given to an employee with a disability if he is otherwise capable of performing them.
Having an effective work place disability discrimination policy will go a long way to ensure that all the employees in an organization receive equal treatment, while also protecting the company from costly legal issues. Policies should address the many forms that discrimination can take, and should offer a detailed explanation of how the company will investigate claims of discrimination and discipline anyone who violates company policy.
A lot of employers of labor are very much aware that preventing any form of discrimination in the work place is of utmost necessity. This is because failing to do this can result in increased employee turnover and absenteeism, lower employee morale and productivity, and higher insurance premiums and defense costs, among other things.
Therefore, it is important for employers to be proactive and prevent discrimination from occurring in the first instance. Disability is a protected characteristic protected from unfavorable treatment. A tribunal claim for disability discrimination can leave employers facing a large compensation bill so it is essential they are taking steps to prevent discrimination happening in the workplace.
To ensure that people who are disabled are being treated equally as people who are not, employers need to ensure they’re creating a culture where the employee feels they can disclose their disability, showing that disabilities aren’t a taboo topic.
This can be through simple things such as actively demonstrating discrimination is not tolerated, having an equal opportunities policy which encourages employees to come forward with any information regarding protected characteristics and pro-actively managing information received from return to work interviews, fit notes or patterns of absences.
As soon as an employer is in the know about an employee’s disability, it is legally up to the employer to make reasonable adjustments to make provisions that do not put the worker at a disadvantage. However, this duty only relates to reasonable adjustments meaning it doesn’t cover adjustments which have a significant financial or burdensome effect on the business.
What most employers don’t realize is that simple adjustments can reduce the disadvantage faced by the employee; an obvious one is to move the start and end time of a person’s working hours if their disability requires medication which affects their alertness. Other examples are a closer parking space, a larger computer screen or discounting disability-related absences in the absence procedure.
Making sure that the entire workforce is trained on equal opportunities will drastically reduce the likelihood of disability discrimination occurring. It might not be enough to simply have an equal opportunities policy in a handbook, it is up to the employer to actively inform all staff of the existence of the policy, providing training on what is and isn’t acceptable conduct under this and then taking steps to manage any breaches.
Managers and senior decision makers should not be exempt from these steps; it is, perhaps, even more important that they understand discrimination laws as they will be directly managing disabled employees.
Under both state and federal anti-discrimination laws, an employer cannot discriminate against a qualified individual with a disability with regard to any term, condition, or privilege of employment.
Additionally, employers must provide individuals with disabilities with reasonable accommodations in order to allow them to perform the essential functions of their jobs.
In light of the amendments to the Americans with Disabilities Act (ADA) that went into effect in January 2009, more people who were not previously considered as disable are now considered so.
It is not enough to have policies in place. It is also important to make sure that these policies are enforced. Lay down penalties for violations of anti-discrimination policies in your workplace. Make sure that there are appropriate channels in place, so that employees can file a complaint about harassment as soon as it occurs.
Follow up on these complaints, and make sure that all complaints are investigated thoroughly. Take all complaints very seriously. A disgruntled disabled employee is very likely to go to the Equal Employment Opportunity Commission to file a lawsuit against your company.
How To Prevent Disability Discrimination in the Workplace
Discrimination may be caused by the employer or by fellow employees, but it is still the duty of the employer to ensure that conducts are monitored, managed and work place discrimination prevented.
Here are a few tips to prevent disability discrimination in the workplace.
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All the policies that are put in place in the work place to combat disability discrimination should adhere to the standards imposed by the Americans with Disabilities Act. The act is enforced by the U.S. Equal Employment Opportunity Commission, and if employees feel they’ve been discriminated against by the company, they can file a claim with the commission. They can also file a civil lawsuit. To prevent federal fines or lengthy litigation, build your disability discrimination policy around federal anti-discrimination laws and have it reviewed by an attorney experienced in employment and discrimination law.
All new employees in an organization should be trained on disability discrimination, so that they can be aware of the company’s policy and federal law. New employees should be made to attend a training session as soon as they’re hired and require them to sign a form stating they’ve read and learned about the policy. Also, consider regular training sessions, possibly held as part of a general discussion on workplace discrimination. To help employees understand what constitutes discrimination, use interactive strategies such as educational videos or role-playing exercises.
No matter how strict your policies are, they mean absolutely nothing if they are not properly enforced. In the policy, actions that qualify as disability discrimination should be clearly spelt out and the punishments that follow a default should also be clearly spelt out. Ideally, you should designate one person or department to handle enforcement. Also, outline the company’s procedures for reporting discrimination, including how long it will take to investigate the claim and what kinds of documentation or evidence employees should provide. Make it clear that employees won’t be punished for reporting discrimination.
Know what questions to ask
Employers of labor are not allowed to ask applicants questions concerning their health other than for prescribed reasons. Reasonable adjustments need only be considered where a disabled candidate requests them, or the employer becomes aware of a substantial disadvantage due to disability. Even where voluntary disclosure of a disability is made, employers should be careful as to what further questions are asked.
Before employment starts, other forms of reasonable adjustments should be considered apart from the physical. Other adjustments may include allowing more time for tests or, for example, allowing an applicant to answer a multiple choice test in an alternative format, such as by providing short written answers. Only after a job offer is made can an employer ask what reasonable adjustments may be needed to allow the candidate to do the job, to include completing any induction period and training and development.
After employment begins, employers may have formal or informal policies, rules, practices, or even one-off decisions that apply to all employees, but that place disabled employees at a substantial disadvantage by comparison. However, caution should be exercised when considering modifying internal procedures for disabled employees, as a reasonable adjustment as this will set a precedent.
For example, it is not always the case that an employer needs to ignore disability-related absences and treat a disabled employee more favorably. Some attendance procedures will trigger disciplinary action after a specified number of absences within a rolling period, and while a disabled employee may be placed at a substantial disadvantage as a result, due to the likelihood of being absent more often than a non-disabled employee; consideration should first be given to whether the employer can objectively justify the procedure.
For instance, where it can be evidenced that the business is severely affected by absence (where punctuality is paramount to service delivery), the employer may be able to show that the procedure is a proportionate means of achieving a legitimate aim.
A lot of disability-related absences may be avoided or better accommodated by taking steps at the outset to identify and implement reasonable adjustments. For periods of long-term disability-related absence, before considering dismissal an employer needs to go further than it would with a non-disabled employee and consider adjustments to the role or, as a last resort, suitable alternative employment with or without a competitive interview.
Rather than focusing too heavily on whether or not the definition of disability is met and whether additional legal obligations are engaged, the focus should be on the needs of the individual. Ultimately, this will benefit the business in terms of productivity.
Where a substantial disadvantage is identified, a proper assessment should be conducted in consultation with the employee to identify any adjustments that could be made to reduce or remove that disadvantage. For the most part, adjustments involve little cost and are therefore likely to be considered reasonable.
In conclusion, the following steps should be taken in order to prevent disability discrimination in the work place;
- Educate all your workers about disability discrimination;
- Encourage workers to respect each other’s differences;
- Respond to any evidence or complaints of inappropriate behavior;
- Deal with any complaints of discrimination promptly and confidentially;
- Develop a workplace policy that prohibits disability discrimination;
- Train supervisors and managers on how to respond to discrimination in the workplace;
- Make sure the workplace policy is properly enforced; and
- Review the policy regularly to ensure that its effectiveness is maintained.
The constitution protects disabled employees from discrimination in the workplace. The duty to make reasonable adjustments is the most common form of protection and, where that duty arises, an employer must effectively treat the disabled employee more favorably than others in an attempt to reduce or remove the disadvantage faced.
A problem that is usually faced by employers is that it is not always obvious that someone may have a disability– or a disability arising from a condition – as these can be ‘hidden’ or ‘invisible’, such as some cancers, autism, epilepsy and mental health conditions. However, once the employer knows, he or she is likely to be placed at a substantial disadvantage as a result of that disability; this is now where you have to protect them.
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