People often find that they are treated differently at work after they are injured, had surgery, or need ongoing medical treatment. Some unfair treatment may qualify as discrimination—and when this happens, an employee can collect damages for the ill-treatment they suffered. However, employees will need clear and convincing evidence that discrimination occurred in order to hold an employer accountable.
Often, the most challenging step for professionals seeking to bring a case against their employer is how to prove disability discrimination in the workplace. While there are many different types of disabilities and many different ways employers could engage in disability discrimination, there are a few legal standards to meet when proving these types of cases. Read on to learn how to prove disability discrimination and the evidence you will need to succeed in your case.
How an Employment Lawyer Can Help You Prove Disability Discrimination
Disability discrimination in the workplace can manifest as subtle bias, negligence, or casual cruelty. In some cases, it can escalate all the way to direct abuse of disabled professionals.
A skilled employment lawyer can help you determine what misconduct is the most relevant and how to legally collect evidence. They can also help you protect yourself against retaliation when you take action to hold your employer accountable for their discriminatory acts.
To consult with an employment lawyer about proving disability discrimination, call our law office or contact us online.
How to Prove Disability Discrimination: Basic Tenets of Your Legal Case
Proving disability discrimination relies on constructing a strong body of evidence to support your claims. There are three important elements of a strong disability discrimination case:
1. You are Disabled and Capable of Your Work Duties
First, you must have a legally accepted disability while also being capable of performing your work duties. Disability is widely defined in the state of California, including chronic illnesses, mental health conditions, pregnancy, and being wheelchair-bound.
Some legally acknowledged disabilities include:
- Temporary and long-term disability due to injury
- Impaired senses such as eyesight, hearing, or speech
- Cognitive/intellectual disabilities including autism spectrum disorders, schizophrenia, , clinical depression, bipolar disorder, or PTSD
- Pregnancy and recent childbirth
- Chronic illnesses including HIV/AIDs, diabetes, or epilepsy
- Body system impairments, including respiratory, circulatory, skin, lymphatic, digestive, or cardiovascular disorders
- Specific learning disabilities
- Loss of limb or impaired physical functions
Being Misidentified as Disabled
Interestingly, if you have experienced discrimination due to a presumed disability, this can also form the foundation of a legal case against your employer for disability discrimination. For example, if you have had recent oral surgery but are mocked for having a speech impediment. The employer’s presumed awareness is what becomes legally actionable, as they are showing a willingness to discriminate, even if they are mistaken. This takes us to employer awareness.
2. Your Employer Is Aware of Your Disability
Second, your employer or colleagues must be aware of the disability or have a strong reason to suspect it. Because you have a right to medical privacy, it is not assumed that all employers are aware of disabilities at all times. However, if you have disclosed your condition, requested accommodation, or requested medical leave due to your condition, these actions may all qualify as alerting the employer of your disability.
- You have told your employer about your disability
- You have asked for reasonable accommodation due to your disability
- You have requested medical leave related to your disability
- Your employer has stated awareness or strong suspicion of a disability
As with misidentification, if your employer states that they strongly suspect that you have a disability and this can be linked as a motivation to their actions, your formal disclosure may not be necessary.
3. Clear Evidence of Specific or Systemic Disability Discrimination
Lastly, you must provide evidence that discriminatory actions have taken place, and that they are either ongoing, encouraged, or negligently permitted. This involves putting together proof that a pattern of negative and discriminatory behavior is based on your disability status. Discrimination may manifest in many different ways, either direct or covert. It can be targeted at just one person, or you may collect evidence of systemic discrimination against anyone with a disability in the company, department, or team.
Types of Disability Discrimination in the Workplace
Disability discrimination is one of the most complex forms of discrimination in a California workplace. This is because it can manifest in many different ways; sometimes even from people who “mean well” but are acting in a way that is disadvantageous to a disabled employee. In order to collect evidence, it’s important to know what qualifies as disability discrimination.
Here is a list of behaviors to watch out for:
- Denial of Opportunities
- Disabled employees are never selected to lead projects or are routinely passed over for promotion, despite their performance.
- Removal of Duties
- Duties are removed from a disabled employee after the employer learns of thair disability
- Refusal to Provide Reasonable Accommodation
- The employer refuses to provide reasonable accommodation, either by outright refusing to accommodate, arguing that any accommodation is unreasonable, or refusing to enter negotiations to find a reasonable solution.
- Sudden Change in Attitude
- Employer or coworker attitudes change suddenly when the disability becomes apparent.
- Disparaging and Insensitive Remarks
- Cruel, mocking, or undercutting remarks are made that target a disabled person and/or their disability.
- Harassment and Refusal to Stop Harassment
- Harassment from coworkers or managers aware of the disability, and/or leadership’s refusal to intervene in harassment when made aware.
- Intentional Sabotage
- Making decisions or changes that directly disadvantage a disabled employee, like placing items on a high shelf, removing doorstops, or uninstalling accommodative software.
- Being Driven to Quit
- A campaign to make your work increasingly unpleasant in order to drive you to quit.
- Being Excluded from Activities and Rewards
- Activities and rewards planned that knowingly exclude a disabled employee due to their disability – such as hikes for someone who is mobility-limited or events planned intentionally over a medical schedule.
How to Put Together Evidence of Past Disability Discrimination
Once you are ready to collect evidence, start with records that may already exist. Long-term discrimination and systemic disability discrimination may be proven through the company’s records or your own personal communication logs. If you have a witness and ally in the company or others who have been discriminated against, their records may also be useful.
It is important to build a baseline that first establishes that your employer was aware of the disability, then build a portfolio of evidence that proves their unacceptable actions in response to that knowledge.
Examples of Evidence Used in Disability Discrimination Cases
Unkind or Mocking Remarks in Emails or Chat Records
Comb through emails and group chat records that discuss either disabilities or decisions made regarding employees with disabilities, including yourself and others. If your manager or coworkers have said cruel or undercutting things in any message recorded in text, these can immediately become evidence. Save them to a private storage device and make paper copies to keep at home.
Denial of Reasonable Accommodation Requests
If you made an accommodation request in writing and have evidence that it was denied, indefinitely delayed, or an unreasonable alternative was offered, dig up these exchanges. Keep a record of any discussions regarding reasonable accommodations, including requests for medical leave, and how your employer responded.
Promotion or Assignment Records
Were you on track to a promotion before your employer became aware of your disability? Is there systemic evidence that people with disabilities don’t get promoted in your workplace? Are people with disabilities routinely denied better projects and opportunities? Any evidence of this can show intentional disadvantaging of disabled employees.
Attitude Changes After Disability Awareness
Lastly, identify the moment your manager or coworkers became aware of your disability and look for records of any change in attitude. Check your emails and chat logs, along with any recorded meetings.
Security Camera Footage
Depending on where certain discriminatory actions took place, there may be security camera footage in the workplace or from nearby public locations. Your lawyer can help collect this evidence later on.
Start Collecting New Evidence of Disability Discrimination in the Workplace
When you have put together all of the existing evidence, you can begin carefully collecting new proof of disability discrimination in your workplace.
Keep a Journal of Interactions and Changes
Discrimination often happens in situations where there is “no proof” that something happened, like cruel remarks in a private office or bathroom at work. But you can keep a journal. Writing a detailed journal of harassment or discrimination incidents will form a consistent narrative of your workplace environment, a timeline, and statements that can be backed up with other types of evidence.
Put Everything in Writing and Insist on Responses in Writing
Stop communicating without putting things in writing. Make formal requests and discuss work assignments through email. Anything discussed in person should be “confirmed” in an email later on. Insist on getting answers in writing so you can check them later. This will create a paper trail for any harassing statements or discriminatory decisions that are made.
Request Copies of Documents Like Requests and Denials
When you make requests for accommodation, medical leave, or promotions and opportunities, do it formally. Submit documented requests and seek documented confirmations or denials in return.
Record Yourself At Work – In Select Conditions
California has strict privacy and wiretapping laws. However, when proving discrimination, there are some allowances to record a conversation with an employer. Most importantly, you must be a key player in the recording, and it must be in a public place where there is no assumption of privacy. This includes open-plan workspaces, conference rooms, public venues, parking lots, and outdoors.
Recording yourself can allow you to catch more elusive discrimination activities like cruel commentary or managers who refuse to give decisions in writing.
How to Prove Disability Discrimination with the Help of Eldessouky Law
The employment lawyers of Eldessouky Law are here to help you defend yourself and others from unfair and abusive workplace practices in California. If you or someone you know is being targeted by disability discrimination, contact us today for a consultation.