Under the Americans with Disabilities Act and the New Hampshire Law Against Discrimination, discrimination is prohibited against employees and prospective employees with disabilities by an employer because of that person’s disability.
Generally speaking, discrimination occurs when an employer takes adverse action against an employee or prospective employee, whether in whole or in part because the individual is disabled. Such an adverse action can occur in the context of job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
Am I protected?
Two things must be true to trigger the law’s protections: the person must be a (1) qualified individual (2) with a disability.
First, a person is “qualified” if they can perform the essential functions of the relevant job with or without reasonable accommodation (more about what “reasonable accommodation” means below). Essential functions are the job’s fundamental duties and do not include merely marginal functions.
Second, a person is “disabled” under the law if the individual:
- Has a mental or physical impairment that substantially limits that person in one or more of their major life activities;
- Has a record of such impairment; or
- Is regarded as having such an impairment.
Within the definition of disability, “major life activities” can be caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, ambulatory abilities, speaking, breathing, learning, reading, concentrating, thinking, communicating, working. Major life activities also include the operation of a major bodily function such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Am I entitled to “reasonable accommodation?”
Under the law, failure to provide “reasonable accommodation” to the known limitations of a disability counts as discrimination. For an employer to be liable for failing to provide a reasonable accommodation, an employee must first request an accommodation unless the disability, and its corresponding need for accommodation, is obvious or otherwise known to the employer.
A disabled employee is entitled to a reasonable accommodation if two things are true. First, the accommodation must enable the employee to perform the relevant job’s essential functions. Second, the accommodation must also be reasonable, meaning that it must be feasible for the employer and cannot impose upon the employer undue hardship. An accommodation imposes an undue hardship and is therefore unreasonable if it requires significant difficulty or expense under the circumstances.
Reasonable accommodations might include making the employer’s existing facilities readily accessible to and usable by individuals with disabilities. Reasonable accommodations may also include job restructuring, part-time or modified work schedules, reassignment, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, or the provision of qualified readers or interpreters.
If you have questions regarding your disability and your employer please contact Douglas, Leonard & Garvey, P.C. at (603) 288-1403 or fill out our online contact form.