The federal Americans with Disabilities Act (ADA) prohibits disability discrimination in every aspect of employment, from recruitment and hiring to compensation, benefits, and termination. An employer who loses a disability discrimination lawsuit may be required to take particular actions (such as reinstating a fired employee or changing its policies); pay back wages; pay the employee's court costs and attorney fees; and perhaps pay punitive damages and damages to compensate the employee for emotional distress. However, punitive and compensatory damages aren't available in every type of case -- and, even when they are, the total amount awarded is subject to a monetary cap.
What Is Disability Discrimination?
An employer may not discriminate against an employee or applicant who has a disability, who has a history of disability, or who is perceived by the employer (even incorrectly) as having a disability. As defined by the ADA, a disability is a physical or mental impairment that substantially limits the employee's ability to perform one or more major life activities or major bodily functions. A condition that impairs an employee's ability to walk, see, or learn qualifies, as does a condition that disrupts the proper function of the employee's circulatory or neurological system. (For more on how there terms are defined, see Americans with Disabilities Act FAQ.)
To be entitled to protection under the ADA, an employee must be able to perform the essential duties of the job, with or without a reasonable accommodation. A reasonable accommodation is a change to the position or the workplace that will allow an employee to do the job, despite a disability. Reasonable accommodations might include raising or lowering the height of a desktop for an employee who uses a wheelchair, providing voice-activated software for an employee with carpal tunnel syndrome or vision problems, or allowing an employee with diabetes to eat throughout the workday, even if other employees in the same position are not allowed to do so (as might be the case for a cashier).
Filing a Disability Discrimination Lawsuit
An employee who was fired, disciplined, denied a reasonable accommodation, or otherwise treated differently because of a disability can file a lawsuit under the ADA. Before doing so, however, the employee must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for interpreting and enforcing the ADA. Once the EEOC finishes processing the charge, it will issue the employee a right to sue letter, and the employee may file a lawsuit. (For more on filing a charge and getting a right to sue letter, see Right to Sue Letter From the EEOC.)
Once you receive your right to sue letter, you have only 90 days to file an ADA lawsuit. This is one reason why it's a good idea to consult with a lawyer as soon as you believe you may have a disability discrimination case. A lawyer can evaluate your claims, help you decide the best way to proceed, negotiate with your employer, and file your charge and lawsuit.
Remedies for Disability Discrimination
An employer who loses a disability discrimination lawsuit might be required to:
- pay the employee's lost wages, benefits, and other out-of-pocket costs
- take action to remedy the discrimination, such as hiring back a fired employee, promoting an employee who was improperly passed over, providing a reasonable accommodation, or changing its hiring practices to avoid disability discrimination
- pay the employee's attorney fees and court costs, and
- pay the employee punitive damages and damages for pain and suffering.
Damages for pain and suffering are sometimes called "emotional distress" damages or compensatory damages. Punitive damages are intended to punish the employer for particularly egregious behavior. Together, these two types of damages often make up the largest portion of a successful employee's award. However, they are subject to a monetary limit: These two types of damages combined may not exceed a cap of between $50,000 and $300,000, depending on the size of the employer.
Also, punitive damages and damages for pain and suffering may not be available at all in cases alleging only retaliation. In a retaliation case, the employee claims that he or she was fired for complaining of discrimination. For example, an employee who was fired shortly after asking for a reasonable accommodation or filing a charge of discrimination with the EEOC might make a retaliation claim. In a regular disability discrimination case, an employer can be required to pay punitive damages and damages for emotional distress. However, if the employee's only claim is for retaliation (or that's the only claim that didn't get dismissed before trial), some courts have found that these damages are not available. The Supreme Court has yet to decide this issue, so whether they are available to you will depend on how courts in your area have ruled. An experienced employment lawyer will know what damages are available and how best to present your case to maximize your chances of winning.