Handicap Discrimination

The Americans with Disabilities Act was passed in 1990. This is considered by many people to be a rather short time ago. When studying the history of the treatment of handicapped persons, it is surprising to find out that it took so long for any legislation to be passed regarding their treatment.

For a long time in the United States society was not supportive of a person who could not work like others. This is not to say that many of these people were not capable in a variety of ways. There were little to no concessions made that allowed them to flourish within their sphere of abilities. Many of these individuals ended up begging in the streets because they could not procure gainful employment.

The industrial revolution and thereafter made things increasingly difficult for these individuals. Often there was serious competition for physical labor jobs such as factory work, packing crews, and construction work. If an individual was disabled in any way physically, they would never be chosen.

There was also a strong prejudice against the disabled. Large parts of society would dismiss a person with a physical disability without any understanding of that person’s other talents. For example, a missing leg has very little to do with one’s mental capacity, nevertheless, this prejudice could play a key part in gaining any kind of employment.

As time progressed and many more jobs became available, the prejudice became more evident. For this, and many other reasons, the American’s with Disabilities Act was passed.

There are a number of things that are important to understand when looking into a legal case that deals with handicap discrimination and the American’s with Disabilities Act. Most importantly is that the law does not force employers to hire people that are not qualified for the job. It simply states that, if the person is qualified and can perform the essential functions of the job with reasonable accommodation, they have a right to keep that job. The employer may attempt to prove that the accommodation causes undue hardship to his/her business. If they are successful in proving this, it is perfectly within their right to terminate that person’s employment.

This portion of the legislation is one of the most commonly contested. The definition of “reasonable accommodation” must be made clearly and fairly. These cases often appear very simple from the outside but can quickly grow complex. Discrimination law nearly always involves high-stakes consequences and thus produces a fierce desire and effort to win.

The definitions within the act are key. A handicapped person is defined as any person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of such impairment, or is regarded as having such impairment. They allow ‘major life activity’ to include employment. An interesting point is that a person may also be considered handicapped under the law without a physical impairment if the employer regards that person as having an impairment.

One of the more prevalent issues today is the process to gain status as a handicapped person. The process involves fees, extensive paperwork, and a physical. It can take over a year to process the application and if denied the first time, many years after that. The attorney’s fees can reach the thousands of dollars. Any one of these requirements can represent an obstacle to a genuinely handicapped person.

Discrimination can be categorized in three ways. Public discrimination is where the facilities are not able to accommodate a handicapped person. There are exceptions made for buildings built before 1960. Commercial or industrial discrimination is what was mentioned above; an employer either not hiring a person or discharging a person with out having made the proper accommodations or claiming they are cost prohibitive. The last is state discrimination which applies when a government refuses to acknowledge a person as handicapped when, in reality, they are.