As a qualified employee or job applicant, regardless of disability, you deserve to be treated fairly by an employer. It is unlawful to be treated unfavorably due to any disability. Unfortunately, disability discrimination in South Carolina happens. It could be a supervisor or a co-worker creating a hostile work environment. It does not matter who is causing it; what matters is that you have been discriminated against in the workplace based on your disability. When this happens, you are entitled to take action. In some cases, you may be owed compensation.
At Jung Disability and Injury Advocates, our discrimination disability lawyer based in Charleston understands the Americans with Disabilities Act (ADA) and will uphold your rights. Contact us at (843) 576-4200 to schedule a free consultation and to learn more about your legal options.
What Constitutes Disability Discrimination in South Carolina?
Disability discrimination occurs when a person who suffers from a disability is treated less favorably as an employee or a job applicant due to that disability. Disability discrimination also occurs when a person is treated differently due to their association with a person with a disability.
Rights for Employees with Disabilities
The United States Equal Employment Opportunity Commission (EEOC) establishes certain rights for employees and job applicants that have a disability. These rights include:
- Free from harassment. A disabled person cannot be harassed regarding their disability in the workplace by supervisors, managers, or co-workers.
- Reasonable accommodations. A person who suffers from a disability has the right to request reasonable accommodations to allow them to apply for a job, perform their job duties, or otherwise have the same benefits as other employees.
- Privacy. An employer is very limited in what they can ask an employee about in regard to their health.
- Confidentiality. With limited exceptions, any information an employee does share with an employer in regard to their health must be kept confidential.
- Free from retaliation. A person who does complain about disability discrimination, or is associated with a person who complains about disability discrimination, cannot be retaliated against.
Rights have further been established by the Americans with Disability Act (ADA), which became law in 1990. In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) became law. The ADAAA clarifies the scope and definition of disability under the ADA. These acts are designed to provide the same opportunities and rights that a typical person has in all areas of life, including employment.
Examples of Disability Discrimination in South Carolina
Disability discrimination can take various forms. Some common examples are described below.
A disabled employee should have the same access to areas around the office as other, non-disabled employees. An employee in a wheelchair, for example, should be able to maneuver around the same as everyone else and access all areas of the office available to other employees.
When an employer leaves areas inaccessible and, thus, fails to comply with the ADA, disability discrimination exists.
Failure to Provide Reasonable Accommodations
If an employee requires an accommodation that would be no hardship on the employer to effectively complete their job, the employer should comply with that accommodation. For example, if an employee is partially deaf and cannot hear well in a noisy environment and requests a workspace in a quieter area, the employer should provide them with a new workspace when possible.
When an employer fails to provide reasonable accommodation, a disability discrimination claim may exist.
A disabled employee's disability should never be the subject of office jokes or teasing. For example, an employee who is blind should never be made fun of due to their loss of vision.
Jokes, however, do not have to be specific to the employee's disability but relevant to disabilities in general. If there's a pattern of jokes or teasing in the office, a hostile work environment is created. As such, the employer may be liable for disability discrimination.
Loss of Promotion
An employer cannot pass you over for a promotion if you have a disability or if you are close to someone with a disability. For example, an employee has a child with a disability and finds out that the reason they were not promoted is that their manager thought it would be too much responsibility for someone with a disabled family member.
This failure to promote on this basis may qualify as disability discrimination and is unlawful.
What Is a Disability?
To secure the protection of the EEOC and ADA, you must be qualified for the job and have a disability defined by the law. A disability can be established in one of three ways:
- You have a physical or mental condition, and it substantially limits a major life activity. Examples of major life activities include walking, seeing, and hearing.
- You have a history or record of a disability (mental or physical impairment) that substantially limited a major life activity, even though you do not have the disability now. An example of this type of disability is cancer––you had cancer but are now in remission.
- You are regarded as having a physical impairment, which means you do not have a disability but:
- Have an impairment that does not substantially limit a major life activity; orHave an impairment that substantially limits a major life activity as a result of the attitudes of others toward them; orDoes not have any impairment but is treated by an entity as having one.
Examples of Qualifying Disabilities
- Bipolar disorder
- Cerebral palsy
- Depression (severe)
- HIV infection
- Loss of limb(s)
- Multiple sclerosis
- Muscular dystrophy
- Post-traumatic stress disorder (PTSD)
Examples of Non-Qualifying Disabilities
Simply having a medical condition or mental health issue will not always constitute a disability for the purposes of disability discrimination claims or complaints. Examples of conditions that do not constitute an impairment in terms of the ADA include:
- Compulsive gambling
- Psychoactive substance use disorders (as a consequence of illegal substance abuse)
- Sexual behavior disorders
What Should Employers in South Carolina Do to Prevent Disability Discrimination?
While there may be differences in how disability discrimination is treated in the workplace in different states, there are steps that all employers should take to prevent it from happening.
All companies should provide training for employees, including those in leadership. Training should include federal, state, and local laws on what is considered disability discrimination. It should be administered to all new hires.
Training, however, should not be a one-time event. The training should be reviewed on a regular basis so that it complies with any changes in the law or with all new rules and regulations.
Companies should create policies that address disability discrimination and clarify what is not allowed. There should also be a procedure in place to file a complaint. All complaints should be addressed and when appropriate, discipline should be administered.
What Should Employees in South Carolina Do if Discriminated Based on Disability?
An employee who has been discriminated against often feels embarrassed and angry, with good reason. It is important that the employee makes their plight known so it can be addressed. Here are a few things you can do.
- Understand your disability. Make sure your disability is protected. What qualifies as a disability may vary from federal law to state law. So, you should confirm it with a disability discrimination area in South Carolina or in whichever state you reside and/or work.
Document everything. If you suspect disability discrimination, keep a journal of everything. The more details you provide the better, including work tasks, dates, times, location, names, etc.
- If you were discriminated against
- , document what happened. Were you asked about your medical history? Were you asked to take a medical exam?If the discrimination involves a
- , document your requests for reasonable accommodations and how the employer responded. Keep in mind that an employer can provide their own reasonable accommodations that meet their budget and your needs. If the discrimination involves
- , document the discriminatory events but also document any
- , like pay reduction, reduced work hours, termination, or additional harassment.Also, you should document when you report the discrimination, to whom, when, and how it was reported, and what happened after it was reported.
- Report it internally. When you think you are the victim of disability discrimination, speak with a manager, supervisor, and/or a human resource representative. If your employer has a specific policy on discrimination reporting, follow it. Filing a report or complaint with the company formally puts the company on notice of the discrimination.
- File an EEOC complaint. If the employer does nothing or inadequately responds, you should file a complaint with the EEOC or a local agency that handles discrimination. Time is of the essence here, particularly with the EEOC––a complaint should be filed within 180 days of the last day of the discriminatory event but can be extended to 300 in some situations.
- Contact Jung Disability and Injury Advocates if you live in or around Charleston. Our employment law attorney is well-versed in this area of law and will help you throughout the entire process.
Taking these steps will put you in a better position to prove your case and recover the remedies or compensation you deserve.
Contact an Employment Law Attorney in Charleston Today
At Jung Disability and Injury Advocates, our employment law lawyer based in Charleston understands how you must feel if you have suffered disability discrimination in South Carolina. We will take responsible, comprehensive legal action against your employer to make sure your rights are protected. Contact us by filling out the online form or calling us at (843) 576-4200 to schedule a free consultation and to learn more about the recourse you can take.