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Employment Discrimination

http://www.rilaborinstitute.org/employment_guide_2001/chapter_2.html

Discrimination occurs in a variety of ways in daily life, including employment. Some employment discrimination is lawful and necessary (such as prohibiting the employment of minors in certain occupations or before or after a particular hour of the day). Most discrimination, however, whether intentional or otherwise, is based on factors such as race, gender, national origin and religion, and has resulted in people who are discriminated against constituting a disproportionate share of those living in poverty. Over the years the law has begun to address these inequities.

What is employment discrimination?

Employment discrimination refers to unlawful discrimination in employment. This occurs when a person is treated differently than others in the employment relationship on the basis of race, color, religion, national origin, sex, age, physical or mental disability, and, in Rhode Island, on the basis of the employee's sexual orientation and gender identity or expression. State and federal anti-discrimination laws protect certain categories of workers who have traditionally been excluded from employment opportunities. Each of these categories constitutes what the law refers to as a protected class . Both federal and state laws prohibit unlawful discrimination, but they do not require an employer to hire members of a protected class if they are not qualified for a job.

For discrimination to be illegal, the person must belong to a protected class , and the discriminatory treatment must be based on this fact. And while other types of discriminatory treatment (for example refusing to hire someone with body piercings) may not seem illegal (since people with body piercings are not a protected class under the law), employers may run afoul of the law if the discrimination is based on a characteristic or appearance common to certain protected groups.

What laws protect Rhode Island workers?

Both federal and state anti-discrimination laws cover Rhode Island workers. The federal laws (which also include presidential executive orders) include:

•  Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et seq. )

•  Civil Rights Act of 1991 (PL 102-166, 1991 §1745; 42 U.S.C.A. 1981)

•  Civil Rights Acts of 1866 and 1870 (42 U.S.C. §§1981, 1982, 1983, 1985)

•  Executive Order 11246 of 1965 (3 C.F.R. Pt. 1964)

•  Equal Pay Act of 1963 (29 U.S.C. §206(d))

•  Age Discrimination in Employment Act (29 U.S.C. §§621 - 634)

•  Rehabilitation Act of 1973 (29 U.S.C. §§701, et seq. )

•  Americans with Disabilities Act (42 U.S.C. §§12101, et seq .)

•  Fifth and Fourteenth Amendments to the U.S. Constitution

The Rhode Island laws protecting workers are similar to the federal laws and provide workers with additional legal protection. These laws include:

•  Fair Employment Practices Act (R.I.G.L. §§28-5-1, et seq. )

•  Civil Rights of Individuals with Disabilities Act (R.I.G.L. §§42-87-1, et seq. )

•  Sexual Harassment, Education and Training in the Workplace (R.I.G.L. §§28-51-1, et seq .)

•  Rhode Island Civil Rights Act of 1990 (R.I.G.L. §§42-112-1, et seq. )

•  Protections for employees who are HIV positive or perceived to be HIV positive (R.I.G.L. §§23-6-22 - 23-6-23)

•  Rhode Island Constitution, Art. I, §.2

Do these laws apply to all employers?

For the most part, yes, but not all employers or employees are covered. Each law has particular requirements that must be satisfied for the law to apply, and many of the laws list employer-types or jobs that are excluded from coverage.

For example, the Fair Employment Practices Act applies to all employers employing four or more individuals. Title VII sets the minimum threshold at fifteen employees. The Age Discrimination in Employment Act ( ADEA ) applies to employers with at least twenty employees. Other laws have no minimum threshold number of employees.

And, once again, not all laws cover all workers. Certain workers are excluded from the protections of some laws. People employed in domestic service are not covered under the Fair Employment Practices Act . Title VII doesn't cover independent contractors. And while Title VII prohibits religious discrimination, generally, the law does not cover workers in religious institutions. Finally, the ADEA only applies to employees 40 years of age or older. By and large, however, the laws are broad enough to encompass most employers and most workers.

With respect to unlawful discrimination, does the term employees include former employees?

Under Title VII , the answer is yes. This enables former workers to take advantage of Title VII 's remedial mechanisms.

With respect to other laws, it is advisable to check the definitions provided in each law. In addition, it is important to determine whether courts, when construing the law, have extended it in order to cover former employees.

Do these laws cover temporary employment agencies?

Yes. Temporary employment agencies are generally covered under antidiscrimination statutes. Temporary help will typically qualify as employees of the agency, the client firm, or both. Neither the temporary employment agency nor the client firm may discriminate against workers on the basis of race, color, religion, sex, national origin, age, or disability, and, in Rhode Island, on the basis of sexual orientation and gender identity or expression.

But a critical inquiry as to whether the worker is a covered employee under these statutes concerns the control of the means and manner or work. If the control of the means and manner of work rests with the temporary employment agency and/or its client, then the worker is a covered employee.

What are the basic provisions of the Civil Rights Act ?

The Civil Rights Act of 1964 prohibits discrimination in employment based on race, sex, color, religion or national origin. The term in employment covers recruitment, hiring, job classifications, transfers, training, promotions, compensation, and discharge. Most employers, including individuals, corporations, labor unions, partnerships, trusts and government, must comply with the provisions of the law.

What protections does the Rhode Island Fair Employment Practices Act provide?

The protections provided by the Rhode Island Fair Employment Practices Act are very similar to those provided for in the federal Civil Rights Acts . Like the federal laws, the Rhode Island law prohibits discrimination in employment based on an individual's race or religion, color, disability, age, ancestry, and sex. And, as noted above, the Fair Employment Practices Act also prohibits discrimination based on sexual orientation and gender identity or expression.

Rhode Island's Fair Employment Practices Act also provides that an employee who has presented a complaint of harassment (based on race or color, religion, sex, disability, age, sexual orientation, gender identity or expression, or country of ancestral origin) to his or her employer, with the right to learn the outcome of the employer's investigation. This includes the disposition of the complaint, including a description of any action taken in resolution of the complaint. R.I.G.L. § 28-5-7 (1)(v)

What protections does the Rhode Island Civil Rights Act provide?

The Rhode Island Civil Rights Act also provides employees with extensive protections against discrimination in employment. An important distinction between the R.I. Civil Rights Act and the R.I. Fair Employment Practices Act is in access to the courts. Under the R.I. Civil Rights Act , an employee may file a discrimination suit without having exhausted administrative remedies. The Fair Employment Practices Act requires employees alleging discrimination in employment to file a charge with the Rhode Island Commission for Human Rights and wait at least 120 days before filing suit in Superior Court. (The administrative procedures are detailed toward the end of this chapter.)

What kinds of discrimination do the civil rights laws cover?

The civil rights laws prohibit two kinds of discrimination: Disparate Treatment and Disparate Impact .

Disparate Treatment refers to intentional discrimination. Discriminatory conduct may be clearly stated (for example, an employer who says, "We don't hire disabled workers," or "I don't put blacks into management positions," has engaged in overt intentional discrimination), but in most cases of discrimination the discriminatory reason will not be given. The discriminatory treatment happens, nonetheless. Discrimination of this sort is more difficult to prove. Sometimes a pattern of discriminatory treatment can be shown.

For instance, an employer's demonstrated pattern of:

•  laying off women with more seniority than men;

•  refusing to promote Hispanic-Americans or people with disabilities to management positions; or,

•  forcing older workers into retirement may evidence illegal discrimination.

There are very rare occasions when an employer's intentional discrimination is lawful. An employer can legally exclude certain protected groups from employment opportunities when the characteristic, which would otherwise be an unlawful requirement, is a bona fide occupational qualification (BFOQ) for the job. That is, where the classification is a business necessity . The Rhode Island Human Rights Commission must certify any BFOQ. R.I.G.L. §28-5-7(4).

Disparate Impact refers to discrimination evidenced in the results of facially neutral employment policies and practices where discrimination was never intended. Where a job requirement looks neutral on its face, but has the effect of discriminating against a protected group of workers, the employer must prove that the requirement is job-related and governed by principles of business necessity .

Example: If an employer has a height requirement that has the effect of excluding a disproportionate number of women, the employer must prove the requirement is necessary for the performance of the essential functions of the job. If there are ways to select qualified applicants that are less discriminatory, then the policy is illegal.

Any worker who suspects discrimination is the reason for an employer's action should contact the R.I. Commission for Human Rights (at 401-222-2661) or the Equal Employment Opportunity Commission (at 617-565-3200 or 800-669-4000).

Can an employer or employment agency ask questions about age, nationality, race or gender?

Generally, questions in this area are impermissible under both federal and state law. Rhode Island's Fair Employment Practices Act specifically prohibits employers and employment agencies (and other organizations), prior to employment, from eliciting or attempting to elicit any information pertaining to an individual's race, color, religion, gender, disability, age, sexual orientation, gender identity or expression, or country of ancestral origin. For a more detailed discussion of employer questions pertaining to an individual's disability , see the discussion on disability laws below.

Examples of impermissible questions are:

•  What is your race? · Are you a member of a church?

•  What is your nationality? · What religious holidays do you observe?

•  Where were you/your parents born? · What is your birth date?

There are a couple of exceptions to this general prohibition, however. First, an employer or employment agency may ask an applicant if he or she wishes to voluntarily identify himself or herself as a minority in order to assist the employer or the employment agency in meeting affirmative action goals. But any information so obtained must be placed on a record that is maintained separately from application materials. Second, if the job at issue is illegal for minors, an applicant may be asked if he or she is of legal age.

What is color bias?

Color bias or color discrimination - a separate protected category under Title VII, but often asserted with a charge of race discrimination - occurs when an employee suffers discrimination by an employer of the same race because the employee's skin is either lighter than or darker than the employer's. The EEOC anticipates an increase of allegations of color discrimination given the changing demographics of the American workplace. Color discrimination not only affects African-Americans, according to one EECO Vice-Chair, but cultures in India and Pakistan and in South America.

Can an employer or employment agency ask applicants about marital status or child-care plans?

Except as it pertains to the federal government as an employer, and, therefore, only with respect to federal employees, neither federal nor state law expressly prohibits questions about marital or familial status, but these questions tend to come so close to the line, that the person asking may easily tread into prohibited territory.

The difference between:

•  How many children do you have?

•  Do you have children that are not in school? and,

•  Who looks after your children for you?

and

•  What days and hours can you work?

•  Are there any specific times that you cannot work? and,

•  Would you be available for job related travel?

is that the former questions don't focus on the legitimate requirements of the job, whereas the last three do.

Certainly asking only female applicants about child-care arrangements would be unlawful. And if a potential employer were to ask

both male and female applicants about child-care arrangements, but used the information to disqualify only female applicants, such conduct would also be unlawful.

Also, if an employer's policy on child-care screened out a significantly higher percentage of female applicants and was not justified by business necessity , the policy, too, would be unlawful.

Federal employees can rely on the express prohibitions against discrimination based on marital status contained in Executive Order 13087, Executive Order 13152 and the Civil Service Reform Act of 1978 (CSRA) for protection. The CSRA expressly prohibits (in addition to other categories) discrimination in federal employment based on marital status or conduct which does not adversely affect the performance of the applicant or employee.

Executive Order 11478 prohibits discrimination in federal employment based on race, color, religion, sex, national origin, handicap, or age. Executive Order 13087 added a prohibition based on sexual orientation and Executive Order 13152 further amended the original order to prohibit discrimination based on an individual's status as a parent.

Can an employer or employment agency ask applicants about citizenship?

As is the case with marital or familial status, neither Title VII nor the state's Fair Employment Practices Act specifically prohibits discrimination on the basis of citizenship status. While questions about citizenship do not expressly violate these laws, they do run the risk of serving as a pretext for prohibited discrimination (for example, discrimination on the basis of national origin).

However, the Immigration and Nationality Act ( IRCA ) as amended by the Immigration Reform and Control Act of 1986 ( IRCA ) (Pub. L. 99-603 of 1986), does prohibit employment discrimination on the basis of citizenship status against certain protected individuals , namely, citizens and nationals of the United States, lawful permanent residents, temporary residents and persons who have been granted asylum or refugee status. The law does not cover individuals who are not lawfully authorized to work in the United States.

Employers with four or more employees are covered by IRCA , which is enforced by the Immigration and Naturalization Service, Office of Special Counsel for Immigration-Related Unfair Employment Practices. Covered employers may limit employment to United States citizens in limited circumstances.

Can an employer require that an employee be a U.S. citizen in order to qualify for employment?

No. Once again, with a few limited exceptions, employers cannot require that an individual be a U.S. citizen in order to qualify for employment. Employers must comply with the requirements of the Immigration Reform and Control Act and verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. Employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens. The purpose of these requirements is to ensure that the applicant is eligible to work in the United States.

Employers must be shown specific documentation as set forth in U.S. Citizenship and Immigration Services guidelines. These include: Certificate of Naturalization, U.S. Passport, unexpired Employment Authorization Card (a.k.a. Work Permit), and Alien Registration Card. For a complete list see the Handbook for Employers: Instructions for Completing Form I-9 printed by the Department of Justice.

Are pregnant workers protected from discrimination?

Yes. Under the Pregnancy Discrimination Act of 1978 (42 U.S.C. § 2000e(k)) (an amendment to Title VII of the Civil Rights Act of 1964 ), employers cannot discriminate in employment-based situations ( with few exceptions) because of pregnancy-related conditions. In short, employers cannot refuse to hire an applicant because the applicant is pregnant. Nor can company policies lawfully discriminate between males and females. For instance, health insurance must cover expenses for pregnancy-related conditions and reimbursements that are pregnancy related on the same basis as costs for other medical conditions.

The law requires employers to treat pregnancy the same as any other temporary disability or illness. This may entail providing modified tasks, alternative assignments, disability leave or leave without pay.

The R.I. Fair Employment Practices Act also prohibits employment discrimination against women "on the basis of pregnancy, childbirth or related medical conditions."

Are pregnant employees entitled to anything different under a leave of absence policy?

No. In Rhode Island, disability leave due to pregnancy must be treated the same as leave provided for any other illness or disability. Rhode Island state law and federal law specifically define the minimum amount of time employers must provide to their employees for family medical leave. The Family and Medical Leave Act is discussed in Chapter VII.

Are women workers protected from sex-based wage discrimination?

Yes. Both the Equal Pay Act of 1963 and Rhode Island law (R.I.G.L. §28-6-18) require the same pay for men and women performing equal work. Equal work means work requiring substantially equal skill, effort, and responsibility, performed under similar working conditions. The law does provide for wage variations based on seniority, experience, training, skill and ability.

Does the law prohibit sexual harassment?

Yes. Both Title VII and the R.I. Fair Employment Practices Act prohibit sexual harassment in the workplace.

What is sexual harassment?

As defined in Rhode Island, sexual harassment is "any unwelcome sexual advances or requests for sexual favors or any other verbal or physical conduct of a sexual nature when:

•  submission to such conduct or such advances or requests is made either explicitly or implicitly a term or condition of an individual's employment; or,

•  submission to or rejection of such conduct or advances or requests by an individual is used as the basis for employment decisions affecting such individual; or

•  such conduct or advances or requests have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."

The definition under Title VII is the same.

In short, the law prohibits sexual harassment, which it recognizes as a form of sexual discrimination. There are two forms of sexual harassment: Quid Pro Quo and Hostile Environment harassment. Although neither term is contained within either statute, the courts use these terms to distinguish forms of sexual harassment.

Quid Pro Quo harassment (Latin, meaning, "one thing in return for another.") is a sexual demand by a supervisor (or person in authority at the place of employment) in exchange for a benefit or threat of a job detriment. Example: If a supervisor says to an employee, "You must sleep with me if you want a promotion." that is quid pro quo sexual harassment.

Hostile Environment harassment exists when the workplace is "permeated with discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993). The "sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton , 524 U.S. 775 (1998). Example: An environment in which there are continuing comments or gestures of a sexual nature or a break area decorated with nude centerfolds or graphic cartoons would very likely constitute a hostile environment .

In order to determine whether the environment is sufficiently abusive, the courts will look at all the circumstances including: The frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with the employee's work performance."

The courts have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.

If an employee complies with sexual advances does it mean that such advances could not constitute sexual harassment?

No. The key is that the sexual advances were unwelcome. An employee may have complied in order to keep his or her job. It is somewhat different however - and, consequently, more difficult to prove the advances were unwanted - if a consensual relationship develops between the employee and the alleged harasser. If a once-consensual relationship becomes unwelcome, the party finding it so must make it clear that the relationship is unwelcome and must cease. Once again, courts will look at all circumstances in determining whether the conduct constitutes sexual harassment.

What should a person who experiences sexual harassment at work do?

It is perhaps most important to document everything. It is helpful if the harasser is told that the behavior is unwelcome and must stop, but absence of notice to the employer does not insulate the employer from liability. If the harasser is a co-worker, the offensive conduct should be reported to a supervisor. If the harasser is a supervisor, the offensive conduct should be reported to the supervisor's supervisor, to the personnel office, or to a grievance committee.

If the offensive conduct continues, a complaint can be filed with the U.S. Equal Employment Opportunity Commission (617-565-3200 or 800-669-4000) or the Rhode Island Commission for Human Rights (401-222-2661). If the employee is a state employee, a complaint may be filed with the State Equal Employment Opportunity Office (401-222-3090).

Does Title VII cover same sex sexual harassment?

Yes. The U.S. Supreme Court said there is no justification in either Title VII 's language or the Court's precedence for a categorical rule barring a claim of discrimination "because of. . . sex" merely because the plaintiff and the defendant are of the same sex. Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 (1998).

Is it necessary that a person suffer tangible job consequences to bring a sexual harassment claim?

No. Under Title VII , an employee who refuses the unwelcome and threatening sexual advances of a supervisor ( quid pro quo harassment), yet suffers no adverse, tangible job consequences, may recover against the employer.

So long as there was no tangible consequence, however, an employer may defend against such a claim by showing that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and that the harassed employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Burlington Industries, Inc. v. Ellerth , 542 U.S. 742 (1998).

In the case of hostile environment sexual harassment, an employee's psychological well-being need not be seriously affected nor need

the employee suffer injury. In such instances, the courts will consider the severity of the offensive conduct, its frequency, and whether it interferes with the employee's work performance, but psychological injury is not required. Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993).

Do the laws provide legal protection for people with disabilities?

Yes. The federal Americans with Disabilities Act ( ADA ), R.I. Fair Employment Practices Act , and the Rhode Island Civil Rights of People With Disabilities statute prohibit employment discrimination on the basis of any physical or mental handicap.

The ADA covers those individuals who:

•  have a mental or physical impairment that substantially limits one or more major life activities (i.e., hearing, seeing, walking, talking, breathing, performing manual tasks, self-care, learning or working);

•  have a record of such an impairment; or,

•  are regarded as having such impairment.

To be protected by the ADA , a person with a disability must be qualified to do the job, with or without reasonable accommodation. This means that the person with a disability must meet the employer's job requirements (such as education, employment experience, skill, or licenses) and must also be able to perform the essential functions of the job with or without reasonable accommodation . Denying employment opportunities to a qualified disabled individual is illegal discrimination if the decision is based on the person's inability to perform a marginal function or the person's need for reasonable accommodation .

The United States Supreme Court held that a person who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the ADA 's first definition of disability (although he or she could still meet the second and/or third definitions under the ADA ). Sutton v. United Airlines, Inc. , 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc. 527 U.S. 516 (1999). In a separate case, the Court extended this analysis to individuals who specifically develop compensating behaviors to mitigate the effects of an impairment (for example, learning to compensate over time for blindness in one eye). Albertsons, Inc. v. Kirkingburg , 527 U.S. 555 (1999).

It is important to note that the definition of disability in Rhode Island's Fair Employment Practices Act does not require that mitigating measures be taken into account when determining whether a person has a disability. Consequently, an individual who is discriminated against on the basis of a qualifying disability may receive more favorable treatment in state courts rather than federal courts.

Which employers are covered by the ADA ?

The ADA covers all employers with fifteen or more employees and includes private employers, state and local governments, employment agencies, labor organizations, and labor-management committees.

What employment practices are covered?

The ADA makes it unlawful to discriminate in all employment practices such as recruitment, hiring, firing, training, job assignments, pay, layoff, promotions, benefits, leaves, and all other employment-related activities.

What is meant by an essential function of a job?

An essential function of a job is a function that is fundamental to the performance of the job, not a marginal function . An employer will never have to eliminate an essential function as a reasonable accommodation , since a person who cannot perform the essential function , with or without reasonable accommodation, is not a qualified individual with a disability as that term is used in the ADA.

The distinction is an important one and marginal functions (i.e., nonessential functions) cannot be used to keep otherwise qualified individuals from employment.

Example: An advertisement for a clerical position that does not generally include driving duties cannot lawfully include the requirement that the applicant have a driver's license. If the applicant is qualified to do clerical work (the essential functions ),

the fact that the applicant cannot drive (a marginal function ) because of a mental or physical disability cannot be used to deny employment.

What is meant by a reasonable accommodation and are there any limits to those accommodations an employer must provide?

Reasonable accommodations are:

•  modifications or adjustments in the job application process to enable a qualified applicant with a disability to be considered for the desired position;

•  modifications of the work environment in order to enable the qualified individual to perform the essential functions of that position; and,

•  modifications that enable a qualified employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other employees without disabilities at the job.

There are numerous possible reasonable accommodations , such as:

•  making existing facilities accessible · reassignment to a vacant position

•  job-restructuring · changing tests, training materials, or policies

•  part-time or modified work schedules · acquiring or modifying equipment

In terms of the limits on reasonable accommodations , the law, once again, does not require that employers eliminate an essential function of the job as an accommodation. Nor are employers obligated to provide accommodations that would prove to be an undue hardship on the company. Finally, an employer does not have to provide as a reasonable accommodation personal use items such as a wheelchair or prosthetic limb if such devices are also needed off the job.

An employee is not obligated to accept a reasonable accommodation . If, however, the employee needs the accommodation in order to perform an essential function and refuses to accept the accommodation, he or she may not be qualified to remain in the job.

What is an undue hardship ?

An undue hardship is an action that imposes significant difficulty or expense in light of the cost of the accommodation to the overall financial resources of the employer. What this means is that a large employer may have to do more than a small employer to accommodate the needs of a person with a disability.

What happens if there are two or more ways an individual could be reasonably accommodated?

So long as the accommodation is effective, it satisfies the reasonable accommodation requirement. If there are two possible reasonable accommodations , and one is more costly, the employer may choose the less expensive accommodation or the one that is easier to provide.

May a manager or supervisor ask if an employee or prospective employee is disabled?

No. But this question must be distinguished from whether an employer may inquire about the need for a reasonable accommodation. The question of any need for a reasonable accommodation , as noted above, may come up during the application process. For instance, the hiring process may include a timed written test. It would be permissible for the employer to ask an applicant - provided that all applicants are asked - whether the applicant will need a reasonable accommodation in order to take the test.

An employer may not ask the applicant if he or she will need a reasonable accommodation for the job before making a conditional offer of employment . The exception to this rule is where the employer knows that the applicant has a disability and reasonably believes that the applicant will need a reasonable accommodation to perform the specific job functions. If an applicant has a known disability that appears to limit, interfere with, or prevent the applicant from performing job-related functions, the employer may ask the applicant to describe or demonstrate how he or she would perform the function with or without a reasonable accommodation . If a known disability would not interfere with performance or job functions, an applicant may only be required to describe or demonstrate how he or she will perform a job if this is required of all applicants for the position.

After a conditional offer of employment is made, an employer may ask whether the applicant will require a reasonable accommodation for the job. Also, after making a conditional job offer and before an individual starts work, an employer may ask health-related questions, provided that all candidates who receive a job offer in the same job category are required to respond to the same inquiries.

Should a person with a disability tell the employer of the need for a reasonable accommodation ?

The employee or applicant is generally responsible for telling the employer when an accommodation is needed. If an applicant with a disability thinks that a reasonable accommodation will be needed to participate in the application process or if an employee with a disability thinks that a reasonable accommodation is needed to perform the essential duties of a job, then the employer should be informed.

Also, a family member, friend, health professional, or other person may request a reasonable accommodation on another's behalf.

It is important to note that an employee is not prevented from requesting a reasonable accommodation after commencing employment even though such a request was not made during the application process.

May an employer ask for documentation of a disability when a person requests a reasonable accommodation ?

Yes. When the disability or the need for a reasonable accommodation is not obvious, the employer may request documentation about the disability and functional limitations in order to verify the existence of an ADA disability and to determine the sort of accommodation needed.

Does the ADA prohibit medical examinations?

The law prohibits medical examinations before a job offer is made. Employers can condition the job offer on a medical examination, but only if all entering employees for that job category take the same examination.

The ADA prohibits an employer from requiring employees to undergo a medical examination or answer medical inquiries unless the examination or inquiry is directly related to the job and necessary for the business. But if the individual provides insufficient information to substantiate the disability and the need for a reasonable accommodation , the ADA does not prohibit an employer from requiring an individual to go to a health professional of the employer's choice.

Who pays for reasonable accommodations ?

Unless providing an accommodation would present an undue hardship for the employer, the employer must pay. If the cost of providing the needed accommodation would be an undue hardship , the employee must be given the choice of providing the accommodation or paying for the portion that causes the undue hardship .

Can employers pay people with disabilities less than other workers doing the same job to cover the cost of reasonable accommodations ?

No. Employers cannot make up the cost of reasonable accommodations by lowering the salary or paying lower wages to people with disabilities.

Does an employer have to make non-work areas used by employees accessible to employees with disabilities?

Yes. The requirement to provide reasonable accommodations covers all services, programs, and non-work facilities provided by the employer. However, if making existing non-work facilities accessible would be an undue hardship , the employer must provide comparable facilities, unless to do so would also constitute an undue hardship .

Does the ADA require preferential treatment for people with disabilities?

No. The ADA does not call for preferential treatment and require that an employer hire an applicant with a disability over other applicants. The ADA only prohibits discrimination on the basis of disability.

Does the ADA take safety issues into account?

Yes. The law permits an employer to refuse to hire an individual who presents a direct threat to themselves or others at work. The direct threat must be one for which a reasonable accommodation cannot be made.

The determination that there is a direct threat cannot be merely speculative or based on stereotypes. It must be based on objective, factual evidence supporting a significant risk of substantial harm. Also, the employer must consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation . The burden of substantiating that an employee is a risk rests on the employer. It is not the responsibility of the applicant or employee to prove that they pose no risk. 

Are users of illegal drugs considered persons with disabilities?

Individuals who currently use illegal drugs are specifically excluded from the definition of individual with a disability and employers can refuse to hire such applicants; however, the ADA bars discrimination against individuals based on past drug addiction. Testing for illegal drugs is permissible under the ADA, but may be illegal under Rhode Island's drug testing statute . However, there are provisions under the ADA for those applicants and employees who are actively involved in rehabilitation programs.

Does the ADA or Rhode Island law cover people with AIDS or HIV?

Yes. Both laws prohibit such discrimination. The legislative history indicates that Congress intended the ADA to protect persons with AIDS and HIV from discrimination and the U.S. Supreme Court has held that such individuals are covered. Bragdon v. Abbott , 524 U.S. 624 (1998). Rhode Island law (R.I.G.L. §23-6-22) expressly prohibits discrimination against such individuals.

The ADA also makes it unlawful to discriminate against an individual because of that individual's relationship or association with an individual with a known disability.

Example: If an employee of Company X cares for a friend with AIDS, it would be illegal for Company X to discriminate against the employee because of that relationship.

Can an employer offer a health insurance policy that excludes coverage for preexisting conditions?

The ADA only requires that an employer provide an employee with a disability with equal access to whatever health insurance coverage is provided to other employees. The ADA does not require employers to provide additional insurance for workers with disabilities. However, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does place some restrictions on an insurer's ability to exclude preexisting medical conditions from coverage, and to issue or renew coverage if an individual were previously part of a group plan.

What happens when ADA accommodations conflict with a collective bargaining agreement?

It may happen that an employee will request what he or she deems to be a reasonable accommodation and the employer's compliance with that request would violate the collective bargaining agreement. In those cases where an employee has sought special job placement or job protection (from bumping) in violation of the seniority system in place under a collectively bargained agreement, the Courts have held that such special treatment is not a reasonable accommodation and, therefore, not required. Eckles v. Consolidated Rail Corp. , 94 F.3d 1041 (7th Cir. 1996) cert. denied 520 U.S. 1146 (1997); Aka v. Washington Hosp. Center , 156 F.3d 332 (D.C. Cir. 1998) (en banc).

In a non-collective bargaining situation, the U.S. Supreme Court - holding that a requested accommodation in conflict with a seniority system is not reasonable - explained that it supported such systems because they tend to provide important employee benefits by creating and fulfilling employee expectations of fair and uniform treatment. The Court did distinguish typical seniority systems from those where the employer retained the right to change the seniority system unilaterally and exercised that right fairly frequently. In those instances, the Court held, one more departure would make little difference. U.S. Airways v. Barnett , 535 U.S. 391 (2002).

Can an employer discriminate on the basis of age?

Yes and no. It is not unlawful to discriminate on the basis of age where the person is under the age of forty. But, with few exceptions, both federal and state laws do prohibit discrimination on the basis of age when the individual is at least forty years old. The Age Discrimination In Employment Act ( ADEA ) and the Rhode Island Fair Employment Practices Act both prohibit discrimination against any individual who is at least forty years old in terms, conditions, or privileges of employment on the basis of that individual's age.

Such discrimination may not be overt, but may underlie comments such as, "You're not able to keep up with the changes around here." or "We need to get a younger perspective."

What should an individual do if they feel they have been discriminated against?

If a person suspects employment discrimination, he or she should contact one of the following:

R.I. Commission for Human Rights Equal Employment Opportunity Commission

180 Westminster St, 3 rd Floor JFK Federal Office Bldg., Room 475

Providence, RI 02903 Government Center

(401) 222-2661 Boston, MA 02203

(401) 222-2664 (TDD) (617) 565-3200

(800) 669-4000

for state employees:

R.I. Department of Administration

Equal Employment Opportunity Office

One Capitol Hill

Providence, RI 02908-5865

(401) 222-3090

Filing a complaint will start an investigation into the employment practice. It does not mean that the person filing the complaint has proven discrimination. In many instances, cases filed with the R.I. Commission for Human Rights will automatically be filed with the federal agency charged with enforcing the federal anti-discrimination laws.

Is there a time limitation for filing a complaint?

Yes and it is important to take note of the different limitations. EEOC guidelines provide that charges must be filed within 180 days of the occurrence that one suspects is discriminatory. The 180-day deadline for filing is extended to 300 days if the charge is also covered by state or local anti-discrimination law.

The R.I. Commission for Human Rights requires that charges be filed with the Commission within one year from the date of the alleged harm. This time limitation refers to situations where a person can identify a distinct occurrence, such as a firing or a refusal to hire or promote. In situations where discrimination has been an ongoing process, a worker should file a charge as soon as he or she becomes aware that the policy may have a discriminatory effect.

Can an employer retaliate against an employee for filing a complaint?

No. It is illegal to retaliate against an employee for filing a complaint, stating an intention to file a complaint, or being a witness in proceedings of the R.I. Commission for Human Rights or the EEOC or for opposing unlawful employment practices. If a person is fired, or discriminated against in any way, because of the above activities he or she should contact the enforcing agency immediately.

What happens after a complaint is filed with the Rhode Island Commission for Human Rights?

After a worker files a complaint, the Commission will assign an impartial investigator who will conduct an investigation with the worker, the employer, and any witnesses to the alleged discrimination. Following the investigation, the Commissioner will make a preliminary ruling. If the Commissioner rules there is No Probable Cause , the case will be dismissed. If the Commissioner rules that Probable Cause exists, the case will go into conciliation. In the event that conciliation is unsuccessful, the matter will go to a public hearing. If, at such hearing, the Commission finds discrimination, the Commission may award damages (such as backpay, frontpay, promotion, hiring, reinstatement, the next available job, compensation for pain and suffering) to the victim. The Commission's services are free. There are "right to sue" provisions in the laws and subject to certain statutory restrictions, a case may be taken from the Commission to court.