According to the Americans With Disabilities Act(ADA), private employers cannot discriminate against applicants or potential hires because of a disability. Though the ADA does not cover all conditions, a “disability” is generally defined as any physical or mental impairment that significantly limits a major life activity.
In 1990, congress passed the ADA to prevent discrimination against individuals in the workforce by requiring employers make “reasonable accommodations” for many types of disability. The ADA applies to all employers who employ 15 or more people for a minimum of at least 20 weeks. Specifically, it provides that covered employers cannot discriminate against otherwise qualified individuals with a disability in:
- The application process
- Pay and benefits
- Discharge and termination
- Any other condition of employment
A few different types of discrimination are covered under the ADA, including classifying disabled employees so that their job opportunities are more limited than the job opportunities of non-disabled employees. Employers are also barred from setting standards that make it more difficult for disabled employees to compete. Employees are also required to post a notice outlining the rights guaranteed by the ADA in the workplace, to inform employees of their rights under the ADA.
In one case, a patrol officer applicant named Russell Holt sued BNSF Railway Co. when the Texas-based railway company took back Holt’s job offer when he disclosed a previous back injury. On Holt’s behalf, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit claiming that BNSF discriminated against him on the basis of a disability. In this case, Holt stated that he sustained a back injury in 2007 during a medical exam, after he had been offered the job. Holt asserted that his back injury had not affected his performance in law enforcement for over a decade, and that it had not affected his ability to perform physically demanding activities.
In a press release, the EEOC reported that BNSF Railway Co. not only demanded that Holt undergo medically unnecessary and expensive medical examinations, but then withdrew its initial job offer on the grounds that Holt had a disability. Though Holt did not have an actual disability, this sort of discrimination is still illegal. Under the ADA, discrimination for a perceived disability is barred as well. If your job application was denied because of a perceived or actual disability, you may have a claim for damages similar to Holt’s.
In many situations, you can sue a potential employer for denying your application because of a real or perceived disability. However, employers do have the ability to gauge your health and physical abilities as conditions for a position. Bona fide occupational qualification (or B.F.O.Q.) may absolve an employer from liability for discrimination when there is a legitimate reason to require employees to be of a particular age or level of physical health. B.F.O.Q. can be used by employers as a defense to claims of discrimination because it basically claims that the job requires certain physical attributes that the candidate does not posses. If the job you are applying for requires you to lift at least 50 pounds, and your prior injury prevents you from doing so, B.F.O.Q. may protect the employer, though it’s success is rare in discrimination cases.