Can I get Terminated for Having a Disability?

Well, yes and no. You can’t be fired or discriminated against if you have a disability if you’re otherwise able to perform the essential functions of your job, with or without a reasonable accommodation. There’s some jobs where a disability is not an impairment, but people perceive that it’s an impairment or sometimes people perceive that a worker has a disability that they don’t really have. In either case, as long as you can perform those essential functions of the job, you can’t be fired or demoted or not hired because of your disability.

Now sometimes disabilities do interfere with the essential function of the job, but they can be overcome with a reasonable accommodation. A reasonable accommodation is a case by case inquiry usually, because one of the factors you have to weigh is how intrusive is the accommodation to the workplace, but also how expensive it is. Is it expensive to acquire? Does it increase the cost for business to have the accommodation in play?

Let me give you an example from a case that I had where the reasonable accommodation was very, very simple. I had a client who had a disability in her knees. The condition in her knees affected her ability in a major life activity of walking, sitting, and standing. The only thing her doctor asked the company to do … she worked in a large kitchen and she cleaned plates and, she was a dishwasher. There were about three or four folks who worked in this one area and they were in a typical kitchen, had a tile floor, very hard tile terrazzo floor. Her doctor said that her condition, which is sharp pain in her knees, so sharp that she couldn’t work when she got that pain in her knee, and her doctor said it was caused by standing on the terrazzo floor. If the company would provide a fifty dollar cushion for her to stand on, kind of a commercial industrial mat made of rubber, that that would alleviate the pain in her knees.

Well, the company refused to provide that accommodation. They said, “Well, if you get one, then everyone will want one.” And the court eventually said that was crazy. A, wouldn’t be a bad idea to give everybody a mat, and B, not only was she willing to provide her own mat thus reducing the cost to the company but that the other employees said that they didn’t want a mat anyway. So that’s a very simple example of an accommodation that’s very reasonable to provide, a fifty dollar mat which alleviates the condition, and that allowed her to perform the essential functions of her job.

You also have to be careful to look at the essential functions of a job and determine if they really really are essential to the job, and this is an area where employers really need to make sure they review their job descriptions frequently because if there’s a job description that there’s an element of the job that’s written in the job description upon which they’re relying for not providing a reasonable accommodation or claiming that the person can’t perform this particular central function of the job, they need to make sure that it really is an essential function of the job.

I had a client once who couldn’t lift more than 75 pounds, and that was a requirement in the job description. Well, as we conducted discovery, we discovered that those particular employees in that job classification rarely, if ever, had to lift more than 50 pounds, much less 75 pounds. So it’s important for employers to really scrutinize their job descriptions to make sure that they’re accurate so that they don’t get second-guessed in the event of a discrimination claim.

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