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If you find yourself disabled and unable to do your regular job, without accommodation, what are your rights?  This article discusses an employee’s rights under the American with Disabilities Act (ADA), and the duties of the employer to the employee.

Congress enacted the [Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,] in 1990 to remedy widespread discrimination against’ persons with disabilities.” Smothers v. Solvay Chems., Inc., 740 F.3d 530, 543 (10th Cir. 2014). The ADA is not meant to give them preferential treatment, but to level the playing field. With the protection of the ADA, a worker who, despite a disability, is able to perform the essential functions of his job is entitled to reasonable accommodation from the employer, if needed.

The ADA defines disability as follows:

A physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.

In order to establish a prima facie (the evidence needed to require the employer to justify its actions) case of discrimination, an employee must initially establish that  (1) he is a disabled person as defined by the ADA; (2) he is qualified, with or without reasonable accommodation, to perform the essential functions of his job; and (3) he was terminated or suffered adverse job consequences under circumstances which give rise to an inference that the termination or adverse job consequence was based on his disability. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir. 1999).

Once  the employee establishs a prima facie case, the employer must then show that it had a legitimate nondiscriminatory reason for taking the adverse action against the plaintiff. If the employer successfully carries its burden of showing a nondiscriminatory reason, then the burden  shifts back to the employees to present evidence from which a reasonable jury could conclude that the employer’s reason for the employment action is not worthy of belief. See, Hardyabove.

If the disabled employee demonstrates to the employer that, despite his disability, he is able to perform the essential duties of his job, with reasonable accommodation from the employer, and requests a reasonable accommodation, the employer must engage in an interactive process to determine if the accommodation requested is reasonable, and does not present an undue burden to the employer. The statute, at 42 U.S.C. § 12112(b)(5)(A),  states that the failure to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability constitutes disability discrimination.

Once an employee requests a reasonable accommodation, the employer must make an effort to accommodate an employee’s disability.  The interactive process requires participation by both the employee and the employer.  The analysis of whether a reasonable accommodation is feasible includes whether or not the accommodation sought would enable the employee to do the particular job and whether the employee could be transferred to other work which could be done with or without accommodation. See, Wilkerson v. Shinseki, 606 F.3d 1256, 1265 (10th Cir. 2010).  In order to reasonable accommodate at the disability of an employee,  the employer is not required to accommodate a disabled worker by modifying or eliminating an essential function of the job. See, Mathews v. Denver Post, 263 F.3d 1164, 1168-69 (10th Cir. 2001).

The determination of what constitutes a reasonable accommodation in any specific case is dependent on the particular circumstances of that case. The EEOC Regulations suggest a number of possible reasonable accommodations, but that listing is not mandatory, nor all inclusive. The list includes the following, as found at 29 CFR 1630.2(o)(iii)(2)(i):

(i)   Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(ii)  Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.

The determination of whether or not the accommodation sought places an undue burden on he employer is also driven by the particular facts of any case. The courts have given some examples of accommodations sought that constituted an undue burden, where the accommodation sought should require the employer to make fundamental alteration in policy, upon which other employees relied, of filling vacancies with full-time employees, rather than part-time employees like plaintiff, in order to accommodate disabled employee. Similarly, require employer to make fundamental alteration in policy, upon which other employees relied, of filling vacancies with full-time employees, rather than part-time employees like plaintiff, in order to accommodate disabled employee.Similarly, the employer was not required to create a part-time position for plaintiff” when it had no part-time positions anywhere in the company. See, Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. Kan. 1999).

The determination of whether you have been the victim of disability discrimination in the workplace involves analysis of multiple factors, specific to your case. Many of these factors have not been discussed in this article. Learn more about protecting your rights by selecting a competent lawyer to represent you.

Nathan Davidovich practices employment law in the state of Colorado, and he is available for consultation on any matters arising in the state of Colorado. Please contact Nathan Davidovich by email at, or by telephone at (303) TALK- LAW/(303)825-5529.

Copyright: July 2015