A common form of disability discrimination is called “failure to accommodate.” This is when a disabled employee needs an accommodation to do his or her job but the employer refuses to grant it or even refuses to engage in a conversation about a reasonable accommodation for the employee. Unfortunately, this is not uncommon. One version of disability discrimination that seems to be growing is when the employer requires an employee to certify they are 100% recovered before they can return to work. This may also be “a failure to accommodate” claim, depending on the facts.
It is also important to note that the definition of disability is broad. It may include mental health issues like depression, substance abuse, or other physical or mental impairments that be invisible to the naked eye. In addition, if the employer acts as if they believe the employee is disabled, whether or not the employee actually is disabled, the employers conduct could also be considered disability discrimination. For example, an employees supervisor may assert that the employee has a substance-abuse problem. Whether it’s true or not, the supervisor has just identified a disability, and if he takes any action because of it, that action could be illegal discrimination.