The ADA is an imperfect civil rights law – but it does provide a mechanism for people living with disability to hold businesses, employers, and even the government accountable when they unlawfully discriminate against people with disabilities.
Knowledge is Power – Common Myths About Disability
Table of Contents
Part 3 – Discrimination and Disability
Note from the Author
It must be acknowledged that there are many marginalized groups that experience discrimination. This article focuses strictly on discrimination that occurs due to disability. ~Ken Meeker
Discrimination. Sometimes I call it “the D word.”
Since the Americans with Disabilities Act (ADA), is a civil rights law, discrimination based on disability can show up in multiple ways and settlings. Adding to the complexity are the various laws prohibiting discrimination at the State and local level that can differ from Federal laws.
Often there are questions on the process of reporting possible discrimination when someone believes they’ve been discriminated against. Unfortunately, the responsibility of understanding how to do it all usually falls to the person being discriminated against, leaving many feeling overwhelmed or to not report at all.
Defining Discrimination under the ADA
In the United States, under the Constitution, Federal law is supreme. This is the level the ADA operates at. Meaning the ADA applies where US laws govern. State or local anti-discrimination laws, when they are present, can only expand on the Federal definition of “Discrimination” as, “Unfair treatment or denial of normal privileges to persons because of their race, age, sex, nationality or religion.” This most general definition is the starting point for civil rights laws like the ADA.
For individuals with disabilities, the ADA prohibits discrimination on the basis of “disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications.”
If Discrimination is prohibited, why do so many people living with disabilities encounter it?
It would be quite the achievement if anti-discrimination laws were able to stamp out biotry when enacted. The reasons disability discrimination occurs are somewhat unique when compared to most other types of discrimination. The common causes of disability discrimination are:
- Social and cultural barriers
- Isolation and lack of inclusivity
- Lack of accommodations
- Unemployment
- Poverty
Individuals living with disability often experience stigmatization. This can often show up as a form of ableism. “Ableism” is when discrimination occurs in favor of people who are able-bodied. For example, a non-disabled person believing someone who is blind incapable of safely crossing a street by themselves. Ableism can manifest in other ways, but in regard to prohibited discrimination on the basis of disability, ableism is a common social barrier that can indicate illegal discrimination might have occurred.
Many people living with disability can experience feelings of isolation and feeling singled-out due to their disability. When this isolation shows up at one’s place of employment, it could be a sign that discrimination is taking place.
Employers subject to the ADA are required to make a workplace accessible, provide reasonable accommodations to people living with disability, and to not discriminate against people with disabilities. For example, an employer holding a companywide education seminar and fails to provide an interpreter for an employee who is deaf has likely discriminated against that employee.
As briefly mentioned in the previous article on reasonable accommodations, there are times an individual with a disability begins to experience challenges at work and it starts to affect their performance. Often, the best thing anyone can do in this situation is seek a reasonable accommodation before the challenges lead to disciplinary actions or worse.
The fear and anxiety many individuals living with a disability experience in situations where they have an undisclosed disability negatively impacting their work is usually rooted fear of being discriminated against, creating a challenge to seeking out reasonable accommodations.
This “catch 22” situation of needing the accommodation to perform one’s job and simultaneous anxiety at the potential consequences from seeking an accommodation often lead to a paralysis where the accommodation isn’t requested until there is disciplinary action against an employee with a disability.
Discrimination occurs when an employer fails to act in good faith with an employee seeking a reasonable accommodation. If no accommodation is requested, performance suffers, and eventually results in termination due to performance – establishing discrimination occurred due to disability is a significant challenge.
The unemployment rate among people living with disability is nearly two times higher than the general population. This can result in people living with disability being perceived as unable to perform and being denied opportunities due to disability. For people living with disability, it can lead to feelings of resentment and frustration.
Finally, a disproportionate number of people living with disability live in poverty as a result of living with disability. This can lead to feelings of resentment at a lack access to equal opportunity for people living with disability. Additionally, poverty can create situations where professional growth is stunted due to a lack of financial resources.
How does discrimination show up?
Discrimination can manifest in more than one way. It can be direct or indirect, it can be due to ignorance or contempt, and can be intentional or unintentional. It can show up in any number of places, situations, or circumstances. It can happen at work, home, or any number of other of life’s activities. Rather than focus on where it occurs, understanding how to recognize discrimination when it occurs and what to do about it can be a more effective strategy.
Individuals living with disability often encounter discrimination in employment. A challenge in determining if prohibited discrimination occurred is that not all types of discrimination are illegal. For example, it is not against the law to prohibit people who have pets from bringing their animals to work, as long as the rule applies to all employees. But the ADA prohibits denying an employee with a disability from bringing their service animal to work, even when a no pets policy exists.
Living with disability can often feel like there is so much more to be aware of when it comes to understanding our civil rights. Further complicating things, there are many people who have a disability and belong to other marginalized groups. For example, a person who is blind and African American belongs to at least two marginalized groups. When discrimination is believed to have occurred, one must first identify what is being denied. In work situations, the “what” is often the job itself.
Next, how did the alleged discrimination occur? Was something said? Did retaliation take place because an accommodation was requested? Is the employer unwilling to engage in a fair manner or is burdensome documentation being requested? Is the employee being treated negatively after disclosing their disability? These are some of the questions one might ask to determine if discrimination occurred due to disability.
Rather than focus on where [discrimination] occurs, understanding how to recognize discrimination when it occurs and what to do about it can be a more effective strategy.
Documenting situations and interactions that occur related to disability is essential to documenting any suspected discrimination. Words are insufficient evidence of discrimination having occurred. Employers are hesitant to take action in situations where disagreement occurs and there is no documentation or evidence to corroborate a claim.
When a complaint needs to be filed with a government agency, such as the EEOC, it starts with a statement, but complaints that lack sufficient evidence and documentation are unlikely to prevail. It is critical to have some type of documentation to support any claim.
While it is perfectly okay to request an accommodation in a conversation with your manager, the conversation should be followed up with an email to the manager that summarizes the conversation, any important details, and when it took place. If an accommodation is denied, it should always be in writing.
There are of course situations where there is an appearance of discrimination.
- Maybe it’s a situation where something is not accessible,
- a salesclerk at a store is unwilling to get something from a tall shelf for a wheelchair user,
- or there is no braille label to identify bathrooms,
- perhaps an airport security agent asks inappropriate questions about the nature of a disability,
- maybe you’ve been denied entry to a store because you have a small bag that carries mobility equipment like a cane (see article on Advocating with Intent).
No one can truly know with certainty the intent behind another person’s behavior or actions – assuming discrimination is intentional due to disability can result in messy situations or unnecessary conflict.
Some discrimination is due to inadequate knowledge and understanding of the responsibilities that businesses, employers, and employees have regarding subjects related to disability. A wheelchair user being denied entry into a public space is more likely discrimination than being unable to access an aisle blocked by storage boxes. It might be annoying every time I encounter an overgrown tree branch extending into a sidewalk path, preventing safe travel – it’s hard to claim discrimination.
Discrimination is a very real experience for many people living with disability. I have experienced it, I have witnessed it happen to others, and heard from other people who have experienced discrimination. The ADA is an imperfect civil rights law – but it does provide a mechanism for people living with disability to hold businesses, employers, and even the government accountable when they unlawfully discriminate against people with disabilities.
We must be vigilant and hold employers accountable when they discriminate. It took decades of dedicated hard work, lobbying, and protest to get the ADA signed into law. Civil rights are not passively obtained, and it requires all of us calling out discrimination whenever, and wherever it takes place.
Disclaimer: This article is for information purposes only and does not serve as legal advice.
By: Ken Meeker CPC
More In This Series
About The Author
Ken Meeker CPC is the owner of Vitality Career Coaching LLC, a boutique leadership coaching company. His work includes creating inclusive, diverse, equitable, and accessible opportunities for employment through consulting and training workshops.
He is Inclusive Behaviors Inventory Certified, a Certified ADA Coordinator, graduate of the AFB Blind Leaders Program. Ken is a recognized leader for disability and blind/low vision advocacy as the recipient of the 2023 AFB Llura Gund Leadership Award. Additionally, Ken is enrolled in the 2023 NCDA Leadership Academy. He has been a featured speaker in numerous seminars, summits, a featured guest on multiple podcasts, and is the creator and host of the “Dissing My Ability’ Podcast. You can connect with him on LinkedIn.com/in/kenmeekeraz, kenmeekeraz@gmail.com or visit https://vitalitycareercoaching.com
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- Disability Discrimination claim form and pen.
- Illustration of a person in a wheelchair at the bottom of a staircase. The imagery represents disability discrimination and it depicts barriers people with disabilities face daily.
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