Federal and state laws protect employees with disabilities from discrimination on the basis of their disability in employment. Employees are also protected from being discriminated against by an employer who regards the employee as having a disability even if the employee does not actually have a disability. The laws also protect employees from discrimination in employment based on an employee’s record of disability. Both state and federal laws have been amended in the last few years so that more physical and mental conditions are now covered as protected “disabilities”.

Discrimination can mean a termination, suspension, being passed over for a raise or promotion, being given less desirable job duties, lower quality benefits, or anything else that adversely effects the terms and conditions of a person’s employment. Once an employee complains to the employer or the appropriate government agency about what the employee believes is disability discrimination it is also illegal for the employer to retaliate against the employee for making their complaint.

It is also illegal for an employer to pass over an applicant for an open job position because the employee has a disability, has a record of disability, or is regarded by the employer as a person with a disability. A person with a disability is not required to disclose their disability to a potential employer during the job application process and the employer may not ask an applicant about disabilities until the employer has made the employee a job offer. The employer may ask applicants whether they are able to perform the essential functions of the job.

It is also illegal for an employer to subject applicants and employees to medical examinations, whether the applicant or employee has a disability or not, unless the medical examination meets the very specific requirements of state and federal law. For example, an employer may never subject a job applicant to a medical examination until after the employer has made the applicant a conditional job offer and only if all applicants are subjected to the same examination. An employer may also not require a current employee to undergo a medical examination unless the examination is job related and consistent with business necessity.

Employees with disabilities are also entitled to reasonable accommodations for their disabilities. Reasonable accommodations can include, but are not limited to, leave from work for a reasonable amount of time (possibly exceeding the 12 weeks provided under the Family Medical Leave Act), a part time schedule, modifications to the non essential duties of an employee’s job, transfer to another open position, and employer provided assistive technology to aid the employee in performing the job. Whether a particular accommodation is reasonable must be determined on a case by case basis. The law requires employers and employees to work together, in good faith, in an interactive process, to determine what accommodations are reasonable and will allow the employee to perform their job without unduly burdening the employer. Job applicants are also entitled to reasonable accommodations. Not only are employers required to provide employees with reasonable accommodations, employers are also prohibited from terminating or otherwise retaliating against an employee because they request a reasonable accommodation or need a reasonable accommodation.

Harassment of an employee on the basis of disability is also unlawful. An employee who is harassed by coworkers, supervisors, or customers on the basis of disability should report the harassment to the person(s) in management designated by the company for such complaints. The employer has a responsibility to take all appropriate actions to prevent harassment from happening in the first place and address harassment when it occurs. An employer who fails to take appropriate steps to prevent and address disability based harassment is liable for the harassment. It is unlawful for an employer to retaliate against an employee for complaining about harassment.

The federal Americans with Disabilities Act, federal Rehabilitation Act, and Maine Human Rights Act all prohibit disability based discrimination and harassment, require employers to provide reasonable accommodations, and prohibit employers from retaliating against employees who need reasonable accommodations or complain about discrimination or harassment. Each of these laws has deadlines for filing a Charge of Discrimination and/or filing suit in Court. For example the Maine Human Rights Act requires an employee to file a Charge of Discrimination within six months of the alleged discrimination and the Americans with Disabilities Act requires that an employee file a Charge of Discrimination within 300 days of the alleged discrimination.

If you are experiencing disability based harassment at work, are in need of a reasonable accommodation for a disability, have been discriminated against in employment on the basis of disability or your need for reasonable accommodation, or have been retaliated against for complaining about harassment or discrimination, you should contact an experienced employment lawyer.