Employment rights: what you should know
By Adrienne Mallinson, Esq., Disabilities Rights Center
Published: Wednesday, November 12, 2008
You have the right to be free from discrimination in the workplace. It is illegal for employers to discriminate against you on the grounds that you or a family member has a mental or physical disability. These rights are guaranteed by New Hampshire state law RSA 354-A, and the federal Americans with Disabilities Act (ADA).
RSA 354-A, New Hampshire’s law against discrimination, enables you to file a complaint with the New Hampshire Human Rights Commission if you experience workplace discrimination. The law prohibits discrimination on the basis of disability by employers who have six or more employees (full- or part-time; temporary or permanent). It includes private employers and state and local government agencies, but excludes social clubs, religious organizations and many other nonprofits.
Title I of the ADA prohibits workplace discrimination by employers with 15 or more employees, and covers all private businesses, staffing agencies, and state and local governments, as well as nonprofit and religious organizations. The Equal Employment Opportunity Commission (EEOC) handles complaints involving ADA violations.
These and other civil rights laws apply to all aspects of employment, from hiring to firing. Especially critical are ADA provisions requiring employers to provide reasonable accommodations and banning discrimination if your family member has a disability. (Please note ADA protections, including requirement of accommodations, are only available to job applicants or workers in organizations with more than 15 employees.)Employers may not ask you illegal questions. For example, an employer cannot ask you about your disability, your health or medications, or whether you have been in hospital, sick or injured on the job. If you are asked these questions on an application form, leave it blank.
If you are in an interview, you should tell the employer that you do not answer questions about private matters, but that you are happy to discuss your qualifications. If you have taken time away from the workplace because of a disability, just say, “I took time off from work to handle a private matter.” Employers cannot ask you to undergo a medical examination (except for drug testing) before offering you a job.
Employers need to provide reasonable accommodations for the interview, as long as the accommodation does not cause the employer an undue hardship. For example, an employer must provide accessible locations for interviews and tests, accessible materials and test modifications.
As long as you are qualified and can perform the essential functions of the job, with or without “reasonable accommodations,” employers may not refuse to hire you just because of your disability. (But employers do not have to hire you; the laws do not guarantee a job and employers are entitled to choose a better qualified person.) In addition, employers may not refuse to hire you because someone you are close to has a disability—for example, in the mistaken belief that you might spend too much time away from work or because an employer is worried about a “negative” image.After you get a job offer, but before you start work, your employer can ask you for medical information and require a physical exam, but only if they require it of all new employees. Even if you have a medical exam, employers cannot use it to exclude you from the job if you can perform the essential functions, either with or without reasonable accommodations.
It is illegal discrimination if your employer offers you different pay or benefits from other employees just because of your disability.You do not have to tell your employer about your disability after you get the job unless you need assistance, or “reasonable accommodations.” If you do need assistance, put it in writing. If your employer agrees to provide a job accommodation, make sure that also is in writing, or keep your own record by sending a thank you note. Your employer can refuse to make accommodations only if your request is much too expensive or burdensome, or if you are no longer able to perform essential aspects of the job, even with assistance.
All sorts of accommodations are possible and reasonable. Some common examples that employers provide include: modified work schedules, job restructuring, accessible work space, assistive technology, modified training materials and reassignment to a vacant position.
You have a right to equal opportunity for job assignments, promotions and training. You also have a right to equal benefits and health insurance if you or your family member has a disability. If your dependent has a disability, your employer may not single you out and refuse, reduce or terminate coverage.
Employers may not retaliate against you for asserting your rights under state and federal law, or harass you for having a disability. Retaliation and harassment are forms of discrimination and you have the right to take action.Don’t wait! You must file a complaint within 180 days of the date when you were discriminated against. You do not need a lawyer to make a complaint and you do not have to wait until you have quit or lost your job.
Contact either the Equal Employment Opportunity Commission (EEOC) or the New Hampshire Commission on Human Rights for instructions.
EEOC, John F. Kennedy Federal Building, 475 Government Center, Boston, MA 02203; Phone 1-800-669-4000; www.eeoc.gov.
New Hampshire Commission for Human Rights, 2 Chenell Drive, Concord, NH 03301; Phone 603-271-2767; www.state.nh.us/hrc/.
<i>Additional information and resources available at www.drcnh.org and www.dol.gov.</i>