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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.

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.

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

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.

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. 

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. 

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.

[1] Under the ADAAA, the definition of "regarded as" is very broad.  An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to a discriminatory action because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.  It is important to note that "regarded as" does not apply to impairments that are "transitory and minor."  A transitory impairment is an impairment with an "actual or expected duration of 6 months or less."


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