Title I of the Americans with Disabilities Act of 1990 (“ADA”) and the Illinois Human Rights Act (“IHRA”) protects qualified individuals with a disability from discrimination in any aspect of their employment.
Disabled Persons under the ADA
A person can show that they have a disability in one of three ways:
- A person may be disabled if they have a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
- A person may be disabled if they have a history of a disability (such as cancer that is in remission).
- A person may be disabled if they are believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if they do not have such an impairment).
Qualified Employees or Job Applicants with a Disability under the ADA
A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.
Reasonable accommodations may include, but are not limited to:
- Making existing facilities readily accessible and usable by persons with disabilities.
- Restructuring jobs, modifying work schedules, and reassignment to a vacant position.
- Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
Disability Discrimination in the Workplace
Under the law, an employer violates the Act when it treats a qualified individual with a disability who is an employee or applicant less favorably because he or she has a disability. It is also illegal under the ADA for a covered employer or other entity to treat an applicant or employee less favorably because they have a history of a disability (e.g. cancer) or because they are believed to have a physical or mental impairment that is not transitory and minor.
The law further requires an employer to provide a reasonable accommodation to a disabled person unless doing so would cause significant difficulty or expense for the employer (“undue hardship”). A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. An example of a reasonable accommodation would be making the workplace wheelchair-accessible for persons in a wheelchair.
Importantly, undue hardship is more than a change that will involve some cost or expense. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business.
Disability Harassment of Employees
It is also illegal under the law to harass a job applicant or employee because they have a disability, had a disability in the past, or are believed to have a physical or mental impairment that is not transitory or minor. Harassment may include, for example, offensive or mocking remarks about a person’s disability. However, the ADA doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are less serious. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
Damages and Coverage for Disability Discrimination Under Federal and Illinois Law
Title VII applies to employers (including employment agencies and unions) with 15 or more employees, and to federal, state, and local governments. Employees who are victims of disability discrimination under Title VII may be entitled to recover compensatory and punitive damages as well as back pay, reinstatement or front pay, and attorneys’ fees and costs. Importantly, Title VII places caps on the sum of compensatory and punitive damages for which an employer may be liable. The caps are based on the size of the employer’s workforce:
Unlike Title VII, the Illinois Human Rights Act (“IHRA”) does not place caps on the amount of damages that are recoverable under the Act. With regard to claims of discrimination on the basis of a mental or physical disability, the IHRA applies to all employers with just 1 or more employees in the State of Illinois, public contractors, and state governmental units.
