Background

Pursuant to the Americans with Disabilities Act of 1990 (ADA), it is illegal for most employers with 15 or more employees to discriminate against certain disabled employees because of their disabilities. The ADA applies to state and territorial governments, but not to the federal government, Indian tribes, or certain private clubs.

It is illegal under the ADA for covered employers to discriminate, in the following types of decisions, against disabled employees who, with reasonable accommodation, could perform the essential functions of the job:

• Hiring
• Recruitment
• Firing
• Pay
• Advancement
• Training opportunities

Reasonable accommodations include modifications to job requirements or job procedures that do not impose an undue hardship on the employer.

Remedies

The Equal Employment Opportunity Commission (EEOC) has been tasked with enforcing the ADA. Employees and applicants who believe that they have been discriminated against in violation of the ADA may pursue certain prescribed remedies.

First, the employee alleging disability discrimination must file a charge with the EEOC within 180 days of the alleged wrongful act. If, however, the wrongful act is also banned by state or local law, that 180-day period is extended to 300 days.

Once a charge is filed, the EEOC investigates the charge and determines whether there is reasonable cause to believe that a violation occurred. If no such reasonable cause is found, the EEOC issues a "right to sue" letter to the employee, and the employee may file a civil action in federal court within 90 days. Anytime after 180 days following the filing of a charge, a charging employee may also request a "right to sue" letter if no EEOC action has been forthcoming. Again, once such a letter is issued, the employee must file its independent federal court action within 90 days.

If the EEOC finds that there is reasonable cause to support the charge, it will attempt to work with the parties to come up with a remedy. If no agreement as to a remedy is reached, the EEOC will decide whether it wishes to file an enforcement action in federal court. If it chooses to file such an action, it will seek a remedy on behalf of the injured employee. If it does not file an action, it will notify the employee that he or she has 90 days to file his or her own action.

Employees who are successful in their ADA actions, may seek to obtain the following types of relief, where appropriate:

• Hiring
• Back pay / front pay
• Reasonable accommodation
• Reinstatement
• Promotion
• Attorney fees
• Court costs
• Litigation expenses

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.