Law Office of Nicole Conger Pllc Disability Discrimination
Practice Areas

Employees, families, and businesses benefit from workplace policies that allow employees to balance their personal obligations and job responsibilities. Employees receive increased job security and a consistent income, family members receive the care they need, and businesses are able to reduce staff turnover, which can lower recruitment and training costs as well as improve workers’ productivity. The Family and Medical Leave Act of 1993 (FMLA), as amended, allows eligible employees to take up to 12 weeks of unpaid, job-protected leave per year for certain serious health conditions or family obligations (including specific same-sex couple coverage) without professional retaliation.

Although the FMLA has existed for more than 20 years, many employers still do not understand its requirements, and some workers still face retaliation for taking FMLA leave. If you have questions about FMLA leave, The Law Office of Nicole Conger, PLLC can help.

While many employers follow the rules regarding accommodations imposed on them under the Americans with Disabilities Act of 1990, as amended (ADAAA), some covered entities attempt to circumvent these rules by forcing their employees to take unpaid leave under the FMLA.
This may involve an employee reporting a condition or requesting an accommodation and the employer telling an employee to do his or her job without an accommodation or else quit. The employer then tells the employee to take FMLA leave while the employee makes his or her decision, even though the employee’s condition may not require medical or disability leave at all. This type of conduct is prohibited by both the ADAAA and FMLA.
Both the Texas Labor Code and the federal ADAAA prohibit disability discrimination in employment. These laws make it
illegal for an employer to discriminate against an employee with a disability (or an employee who the employer perceives
to be disabled) when making decisions related to hiring, firing, promoting, training, compensating, or other terms of
employment. In addition, these laws prohibit an employer from retaliating against an employee for opposing an unlawful
act of disability discrimination.

Under federal law (which Texas law closely mirrors), “disability” with respect to an employee means, a physical or mental
impairment that substantially limits one or more major life activities of such individual;
a record of such impairment; or being regarded as having such an impairment.

The definition of “disability” is now widely expanded from its initial narrow meaning given by courts. In 2008,
amendments were made to the ADA, which provide for greater protection for disabled employees. In 2009, the Texas
Legislature also passed new state law amendments that implement these federal ADAAA amendments into Texas law. As
a result, more employees that are subjected to disability discrimination will be able to protect their rights in the court

The ADAAA protects “qualified” employees, which is defined as “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
However, an employer may not be required to hire or employ a disabled and qualified employee in limited circumstances,
such as where an employer can show that an accommodation would cause undue hardship.

A “qualified individual” with a disability is someone who is capable of performing the essential functions of the job, either
with or without reasonable accommodation. The ADAAA and their accompanying Guidelines recognize two forms of
discrimination: disparate treatment (based on actual or perceived disability) and failure to accommodate.

Disparate treatment occurs when an employer limits, segregates or classifies a job applicant or employee in a way that
adversely affects the opportunities or status of the applicant or employee, and does so because of an actual or perceived
disability. Such adverse treatment can take many forms, including, but not limited to the following:

Employer Taking Disciplinary Action. This is against an employee for taking time off because of a mental or physical

Employer Refusing to Hire an Individual. This is because of an actual or perceived disability;

Employee Terminated After Disclosing a Disability. The employer’s actions are illegal;

Employee Terminated for Requesting an Accommodation. Employee should not fear losing his or her job because of
any disability;

Perceived Disability Discrimination by Employer. This behavior is also illegal; or

Employee Denied Opportunities. Employer may not deny the same opportunities to disabled employees as non-
disabled. An employer also may not allow access to promotions for non-disabled employees over disabled ones.

Perceived or “regarded as” disability discrimination involves adverse treatment that occurs because the employer
perceives or regards an employee to be disabled because of a belief (mistaken or true) that the employee is disabled, or
has an unfair bias against people with a particular physical or mental health condition. Perceived disability, generally,
involves a prejudice or stereotype about a particular disabling condition or a fear that a disability or medical condition
may get worse as some point in the future.

The ADAAA and their accompanying Guidelines also require employers to make “reasonable accommodations” for the
known physical or mental limitations of an otherwise qualified individual, if the accommodations are necessary to enable
the individual to do the essential functions of his or her job. The employee must show that the employer was aware of
the disability and still failed to reasonably accommodate it. Employers are required to engage in an “interactive process,”
which is a dialogue, with disabled employees to determine if a reasonable accommodation is possible.

Under the ADAAA, “undue hardship” means significant difficulty or expense, based on the facts and circumstances of a
particular workplace and employer.

The EEOC (the federal agency that enforces the ADAAA and Guidelines), as well as The ADAAA Guidelines in their own
language, provide the following non-exhaustive list of examples of job accommodations that are considered “reasonable”
for covered employers:

Job Restructuring. This is provided when changes to the manner in which a job is usually performed or modifications
to the work environment that will allow the employee to perform the essential job functions; 

Job Application Process Changes. This is done when an employer changes the job application process in order to
allow qualified disabled candidates to be considered for a position;

Reassignment or Transfer to a Vacant Position. An employee may ask for this accommodation;

Request for Modified Work Schedules. Depending on the circumstances, an employee may ask for a part-time work
schedule or to work remotely where this is physically possible;

Modification of Facilities. An employer should make facilities accessible and usable for disabled employees, or make
adjustments where necessary to equipment, devices, examinations, or qualified interpreters;

Training. Employers should disperse training materials or policies regarding conditions or disabilities; or

Privileges of Employment Changes. An Employer should provide changes to allow disabled employees to enjoy the
same privileges or benefits of employment as non-disabled employees.

In deciding who is protected by the ADAAA and what protections an employee may receive under the ADAAA, it is usually
highly fact specific. To determine if you are protected under the ADAAA or FMLA, The Law Office of Nicole Conger, PLLC, is
here to help analyze your situation.
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The Law Office of Nicole Conger, PLLC
Austin Office
6000 Shepherd Mountain Cove
Suite 213
Austin, TX 78730

By Appointment Only
Call: (512) 413-4260