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3.5. Disability Law - Equal Protection and Anti-Discrimination

Since disability is considered a protected class under the law, it is important to be aware of these laws so that you understand both your rights and responsibilities and those of institutions of higher education and the workplace.  There are three main laws that offer antidiscrimination protections for service-connected disabled veterans and veterans/people with disabilities:  The ADA; Section 504 of the Rehabilitation Act of 1973; and the Uniformed Services Employment and Reemployment Rights Act (USERRA).

a. The Americans with Disabilities Act (ADA)

The ADA was signed into law on July 26, 1990.  Its overall purpose is to make our society more accessible to people with disabilities.  In 2008, the ADA Amendments Act (ADAAA) was passed.  Its purpose was to broaden the definition of disability, which had been narrowed by U.S. Supreme Court decisions.

There are five distinct titles under the ADA:  Title I – Employment; Title II – Public Services; Title III – Public Accommodations; Title IV – Telecommunications; and Title V – Miscellaneous Provisions.  Title I of the ADA, which is enforced by the Equal Employment Opportunity Commission (EEOC), prohibits private, state, and local government employers with 15 or more employees from discriminating against individuals on the basis of disability.

•  An easy-to-understand summary of the five Titles of the ADA can be found on the Job Accommodation Network website. https://www.benefits.gov/benefit/5894

Title I of the ADA prohibits an employer from treating an applicant or employee unfavorably in all aspects of employment – including hiring, promotions, job assignments, training, termination, and any other terms, conditions, and privileges of employment – because he or she has a disability, a history of having a disability, or because the employer regards^[1] him or her as having a disability.  That means, for example, that it is illegal for an employer to refuse to hire a veteran because he has post-traumatic stress disorder (PTSD), because he was previously diagnosed with PTSD, or because the employer assumes he has PTSD.

• Additional examples:
  • A man, who is in line for a promotion, has a history of cancer related to his exposure to Agent Orange in Vietnam, although he is now free of cancer. He is not given the promotion because his bosses are worried that, if his cancer returns, he won't be able to do the job.  He does not, at this point, meet the first part of the definition of disability because he does not have a physical or mental impairment that substantially limits one or more major life activities.  However, based on his "record of" an impairment, he is being discriminated against.
  • A woman applies for a job as a customer service representative at a department store.  Her face is badly scarred from an accident.  The interviewer doesn't want to give her the job, in spite of her skills and experience, because he thinks customers will be uncomfortable looking at her.  She is not substantially limited in any major life activity, but the interviewer is "regarding her as" if she has a disability.
  • A combat veteran was hired as a computer support (help desk) specialist for a large company.  While the veteran has some back issues, there was no need to disclose any disability because his back pain does not interfere with his ability to do the job and be productive.  After a month on the job, the veteran was let go (without reason).  A former colleague told him there had been talk about his veteran status and the company feared he had PTSD and would be a danger to the work environment.  This veteran was "regarded as" having a disability and was discriminated against. 

The ADA also limits the medical information employers may obtain and prohibits disability-based harassment and retaliation.

• A very helpful resource from the EEOC has been updated, Understanding Your Rights Under the Americans with Disabilities Act:  A Guide for Veterans.
• Understanding the ADA is also a helpful guide distributed by United Spinal Association.

Finally, the ADA provides that, absent undue hardship (significant difficulty or expense to the employer), applicants and employees with disabilities are entitled to reasonable accommodation when it comes to applying for jobs, performing their jobs, and enjoying equal benefits and privileges of employment (e.g., access to the parts of an employer's facility available to all employees and access to employer-sponsored training and social events).  In the workplace, reasonable accommodations are often referred to as productivity tools.

• A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.  Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.  (Department of Justice)

The ADA is not a "hiring preference" law, nor does it entitle a person with a disability to employment.  It prohibits discrimination on the basis of disability.  This means that if you are qualified for a job, an employer cannot refuse to hire you because you have a disability or because you may need a reasonable accommodation to perform the job.  Even if you are qualified for a job, an employer may choose another applicant without a disability because that individual is better qualified. 

• While not an enforcement or regulatory agency, the ADA National Network provides information, guidance, and training on the ADA.  For more information, and the resources available to you, contact your regional office.

b. Section 504 of the Rehabilitation Act of 1973

The Rehabilitation Act of 1973 prohibits discrimination against individuals with disabilities in three areas:  (1) employment by the executive branch of the federal government, (2) employment by most federal government contractors, and (3) activities funded by federal subsidies or grants, including companies or organizations receiving federal funding (which generally includes most institutions of higher education).  

The Rehabilitation Act, in the discrimination context, is often referred to by the name of one of its sections.  For example, Section 504 forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services.  It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services.  Section 504 is to the executive branch of the federal government, federal contractors, and most institutions of higher education what the ADA is to private and other employers (with 15 or more employees), including state and local governments. 

• Section 501 of the Rehabilitation Act applies the same standards of non-discrimination and reasonable accommodation as the ADA to federal executive branch agencies and the United States Postal Service.
• Documents explaining Title I of the ADA and the Rehabilitation Act can be found at EEOC.gov.

c. Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA prohibits employers from discriminating against employees or applicants for employment on the basis of their military status or military obligations.  It also protects the reemployment rights of individuals who leave their civilian jobs (whether voluntarily or involuntarily) to serve in the uniformed services, including the U.S. Reserve forces and state, District of Columbia, and territory (e.g., Guam) National Guards.

Under USERRA, employers must make "reasonable efforts" to help a veteran who is returning to employment after military service to become qualified to perform the duties of the position whether or not the veteran has a service-connected disability.  This could include providing training or retraining for the position.  USERRA applies to all veterans, not just those with service-connected disabilities, and to all employers regardless of size.  For more information on the re-employment rights of uniformed service personnel, visit the USERRA Information page on the U.S. Department of Labor's website.

• Both the ADA and USERRA require employers to make reasonable accommodations for disabled veterans.  However, USERRA goes further because it also compels employers to make reasonable efforts to assist a veteran returning to the workforce to become qualified for a job.  Such reasonable efforts could include training or retraining for a position.
• For more information about USERRA, visit the U.S. Department of Labor's online USERRA Advisor at https://webapps.dol.gov/elaws/vets/userra/