Talking about Disability Discrimination

For the past eleven years, Steve Lapinsky has supervised the Department of Human Rights enforcement unit that investigates and resolves charges of disability discrimination in employment. A 1973 graduate of the University of Minnesota with a B.A. in psychology, Lapinsky began his employment with the department in 1980 as an investigator, handling all types of discrimination charges. In his current role, he also represents the department as an ex-officio member of the Minnesota State Council on Disability.

It's a big job: for the past 12 months (October 1, 2002 to September 30, 2003) more charges have been filed at the department based on disability than on sex, race, age, or any other basis. Though the numbers shift from year to year, disability cases are almost always among the top three types of cases by basis, along with sex and race.

Not only are there more disability cases, there is often more about them that requires investigation, according to Lapinsky. "I think the average disability discrimination case is more complicated than the typical employment discrimination case, because so many issues have to be resolved, and there are so many claims and counter claims," he says. "In a case involving sex discrimination, you don't spend a lot of time arguing whether the person is male or female. But in a disability case, one of the first issues is often, is the person disabled according to the statutory definition."

The definition of a disabled person is different under the Minnesota Human Rights Act (MHRA) than under the Americans with Disabilities Act (ADA), a fact which escapes many employers, Lapinsky says. The ADA says a condition is a disability if it "substantially" interferers with a major life activity. The MHRA doesn't say a condition must "substantially" interfere; a condition is a disability under state law if it "materially" interferes. "The courts have acknowledged that we have a lower threshold," he says.

But the question of whether someone is disabled under the law can be more complicated than that: Under both the ADA and the MHRA, an employee need not have any physical or mental impairment to be considered disabled if the employee has a record of such an impairment, or is regarded as having such an impairment. If an employer discriminates because it thinks an employee has a particular condition, or that an impairment is more disabling than it actually is, the employee has the same protection from discrimination as if he or she had that condition.

Once it's established that an employee is disabled, the next question -- and bone of contention -- is often: Did the employer know that the employee was disabled? "The employer may deny knowing that the employee is disabled, even if it acknowledges knowing of an impairment. And it has to be shown that the employer knew, or that the condition was so apparent that the employer should have known."

So Joe was disabled, and the employer knew -- and let's say, as is often alleged, that the employer failed to make a reasonable accommodation for Joe's disability. The next question is, was the employer obligated under the law to make such an accommodation. If the employer has fewer than 15 employees, the answer is no. But an employer with 15 or more workers must accommodate a disabled employee who asks for an accommodation -- if there is an accommodation that would be effective, yet not present the employer with an undue hardship.

There is often argument here, since what's effective and what presents an undue hardship varies from case to case. "If the employer disputes the claim by saying it would have been an undue hardship to do what was being requested, then we'd investigate the impact on the employer and other employees of implementing an accommodation." The size of the employer and employer's type of business are only two of many factors that must be considered in evaluating whether an accommodation would cause a hardship.

Lapinsky believes that many employers have a greater obligation to accommodate a person with a disability than they realize. "A lot of employers are very short sighted about the extent they need to go to accommodate an employee," he says. "Surprisingly, some very large corporations have ended up with probable cause determinations in the last few months on that issue."

If an employer cannot accommodate an employee with a disability in that employee's particular work unit or facility, the employer must look at jobs in other work units or facilities that the employee could do, Lapinsky says. If there is a job in a company facility across town that a disabled employee could perform with or without an accommodation, the employee should be offered that option if no other accommodation is available. "If no job is available in any of the employer's locations, an employer should not overlook the accommodation of a leave of absence," Lapinsky says. "And they must not leave it up to the employee to locate the current or forthcoming vacancy, nor must a qualified employee have to compete for a position."

As Lapinsky sees it, there are two types of employers who end up with probable cause determination -- a decision by the Department of Human Rights that more likely than not, they have violated the Human Rights Act. There are employers who know the law but choose to ignore it, and employers with good intentions, who are unaware of their legal obligations. "To people who are ignoring the law, I would tell them that there are serious consequences for disobeying the law," he says. "If the employer doesn't know its obligations, I would tell those employers, get some training." The Human Rights Act offers more protections and imposes higher obligations on an employer than the ADA, Lapinsky argues. "So I'd recommend that they find trainers who specialize in disability discrimination and the Human Rights Act, and get some knowledge; then practice it."

Employers are not the only ones with misconceptions; employees and job applicants have their own. Some employees with disabilities are unaware of their rights under the law; others believe there are "rights" and employer obligations that do not in fact exist. "Some have the misconception that an employer has to find them a job and train them to do that job." That's not so, Lapinsky explains. "It's true the employer has to give that person, once in a job, the same training they would give another person without a disability. But except for providing reasonable accommodation if needed and available, they don't have to go beyond what they would do for the training of another new employee in that position." An employee with a disability has to meet the basic requirements of the position for which the employee is being, or wishes to be, considered as an accommodation. "The employer is not required to train the person to meet those job-entry requirements," Lapinsky explains.

If he could say one thing to employees with disabilities, it would be, know your rights. "I'd want them to know their rights and their employers' obligations, so if they choose to advocate for themselves, they are knowledgeable and have the power to do that. And if they are not able to successfully advocate for themselves or choose not to attempt it, they can come to the Department of Human Rights and pursue filing a charge."