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The information provided in any OLRS publication is not a substitute for legal advice. You should consult with a lawyer concerning your rights in a specific case. Contact your local bar association or visit the Ohio State Bar Association Web site to find a lawyer in your area. Contents
This booklet is protected by copyright under United States law and by international copyright laws and treaty provisions. You may copy and distribute the work provided that you use the work for personal, noncommercial use; do not add the work to a collection or use it with any other text, photographs, artwork, etc; do not modify or alter the work in any way or delete or modify any copyright; and do not publish or post all or any part of the work on any Internet site or in or on any other media without obtaining the prior written consent of Ohio Legal Rights Service. Copyright © 2003 Ohio Legal Rights Service. All rights reserved. IntroductionEmployment discrimination based on disability is against the law. You have the legal right to equal employment opportunities available to all people. However, employment laws are very complicated. For example, even the legal definitions of discrimination and disability are still being argued in courts. Also, you have only limited time to assert your legal rights. If you do not assert your rights within the time allowed, you may lose your rights under the laws. Ohio law states that disability "means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment." Ohio law states that discrimination "includes, but is not limited to, segregating or separating, according different treatment, or taking actions fair in form but which have a disparate impact, on the basis of membership in a protected class." If you believe an employer has discriminated against you because you have a disability, Ohio Legal Rights Service recommends that you:
This booklet presents a brief summary of employment rights and remedies for people with disabilities, followed by frequently asked questions. This booklet does not take the place of legal advice for any specific case of employment discrimination. For advice about your specific case, Ohio Legal Rights Service recommends that you consult a lawyer. Part 1: Act QuicklyEmployment discrimination is a complicated area of the law. Employment is regulated by federal, state and local laws. These laws are enforced by several federal and state agencies and are applied in federal and state courts. The following table summarizes the laws which prohibit employment discrimination, identifies the government agencies which enforce those laws, and provides Web sites where you can read about employment discrimination laws at no cost. Most public libraries provide public Internet access and may also have these laws in their collections in print. Law schools usually have specialized law libraries, and most law schools allow public access to read the laws in print.
Laws which prohibit employment discrimination allow limited time periods to file complaints and lawsuits. In general, the time periods begin when you become aware that the employer has discriminated against you. When the time periods end, you may lose your rights to file complaints and lawsuits against the employer, and you may lose your rights to remedies for the harm done to you. The following summarizes the time periods to file complaints and lawsuits. Complaints to Agencies
Lawsuits in Court
In addition to complaints and lawsuits, you have informal options to resolve disputes about employment discrimination. Unlike complaints and lawsuits, these informal options have no limited time period. You can begin discussion, negotiation and mediation whenever you and the employer agree to do so. However, your arguments may lose force and the employer may grow less willing to compromise as time passes. The time to file complaints and lawsuits continues to run out while you try informal options. Employment law is complicated. You must choose among several informal and legal options by which to assert your rights, and you must act within a limited time period to preserve your rights. In order to protect your rights to equal employment opportunities, Ohio Legal Rights Service recommends that you obtain legal advice about your rights as soon as possible. Part 2: Obtain Legal AdviceAn employer may treat you very unfairly, but that treatment may not necessarily be illegal. Treatment that feels unfair may be a legal employment practice, or it may be illegal discrimination. Ohio is an employment-at-will state, which allows the employer to refuse employment, to deny promotion and to fire employees for almost any reason, so long as the reason is not against the law. However, discrimination in employment based on disability is against the law. Ohio's law prohibiting employment discrimination is summarized in a poster produced by the Ohio Civil Rights Commission (OCRC). OCRC's Fair Employment Practices poster can be ordered (no charge) from the OCRC Web site at http://crc.ohio.gov/publication_list.htm. If you believe that an employer has illegally discriminated against you because you have a disability, Ohio Legal Rights Service recommends that you obtain legal advice as soon as possible. Ohio Legal Rights Service's advocates and lawyers can advise you and represent you in some kinds of employment discrimination cases. Ohio Legal Rights Service charges its clients no fees for services. However, Ohio Legal Rights Service can not accept all cases, because funding is limited, and yearly program priorities restrict the kinds of cases Ohio Legal Rights Service may accept. Ohio Legal Rights Service's yearly program priorities are available in print from Ohio Legal Rights Service and on the agency Web site at http://www.olrs.ohio.gov/asp/about_Priorities.asp. If Ohio Legal Rights Service can not accept your case, you can obtain referrals to lawyers through your state and local bar associations. Refer to: Ohio State Bar Association (OSBA) You can also obtain legal advice and referrals from the legal aid society in your area. Legal aid societies provide free legal services to people who have very low incomes. Refer to: Ohio Legal Services A lawyer can advise you, according to the details of your specific case, about the best ways to assert your legal rights. Asserting your legal rights may require any combination of informal methods, complaints to government agencies and lawsuits in court. Part 3: Informal MethodsMost employment discrimination disputes are resolved through informal methods. The most basic informal method is talking with the employer to explain your legal right to equal employment opportunity under the laws. Informal methods include:
If your lawyer advises you that informal methods may achieve your goals and will not jeopardize your rights, you may try to resolve your dispute informally before you file complaints with government agencies and before you file suit in court. For example, the employer who denied your request for reasonable accommodation may agree to your request if you provide documentation of your disability and the necessity of the requested reasonable accommodations to your ability to perform essential job duties. Note: The law requires employers to provide you reasonable accommodation for your disability in order to enable you to perform the essential duties of employment. If informal methods do not resolve your dispute with the employer, you have the right to file complaints and lawsuits. You have limited time to do so. Part 4: Complaints to Government AgenciesIf you believe the employer has discriminated against you because you have a disability, you have the right to file complaints with the federal and state agencies which enforce employment laws. Federal laws which prohibit employment discrimination require you to file a complaint before you may file a lawsuit in court. State discrimination laws allow you to file a lawsuit whether you file a complaint or not. Complaint and charge have slightly different meanings. Government agencies and their regulations usually refer to your complaint as your charge. For example, while you make a complaint to the employer's personnel office, you file a charge with a government agency. However, the two words are often used to mean the same thing. For consistency, this booklet always uses the word complaint. Government agencies charge no fees to file a complaint. You can file complaints with or without a lawyer, by mail and by telephone. If you ask, government agencies must provide you reasonable accommodation for your disability in order to file your complaint, to be able to review documents, to attend interviews and participate in meetings, and throughout the complaint process. The government agency will review your complaint and will decide whether or not to investigate further. The government agency may dismiss your complaint at any time after initial review. If your complaint is dismissed, you have the right to a review of that decision. Federal government agencies review and investigate complaints of federal law violations, and state government agencies review and investigate complaints of state law violations. However, employment discrimination commonly violates both federal and state laws. Federal and state government agencies cooperate so that complaints are properly reviewed and investigated, regardless of the agency which receives the complaint. If you have any doubt whether to file your complaint with a federal or state agency, Ohio Legal Rights Service recommends that you file your complaint with both. Part 4(a): Complaints to Federal Agency: EEOCThe U.S. Equal Employment Opportunity Commission (EEOC) investigates complaints about violations of federal laws. Nearly all laws enforced by the EEOC require you to file a complaint before you may file a lawsuit in court. Note about state employees: State employees may sue state government employers in state courts under state laws without first filing a complaint with a government agency. However, state employees may or may not be able to sue state government employers in federal courts. Different federal courts have reached different conclusions about which federal employment laws protect state employees, when lawsuits must be filed, and whether state employees must first file a complaint with a government agency before they may file a lawsuit in federal court. If you are a state employee, Ohio Legal Rights Service recommends that you consult a lawyer about your options. If you plan to file a lawsuit and you are not a state employee, you must first file a complaint with the EEOC within 300 days of the time you become aware that the employer has discriminated against you. The EEOC can accept, and should accept, your complaint later than 300 days in certain situations. For example, the EEOC should accept your complaint after the 300-day deadline if the employer concealed facts that would support your complaint, or if you otherwise had no reason to suspect that the employer discriminated against you at the time. To be certain to preserve your right to file a complaint, Ohio Legal Rights Service recommends that you file your complaint within the 300 day time period. If you work for a federal agency or a federal contractor, you must file your complaint internally with the employer's Equal Employment Opportunity Office within 45 days of the date the violation occurred. During the EEOC investigation and again after the EEOC completes its investigation, the EEOC will assist you and the employer to reach an agreement to remedy the harm done to you (see Part 6: Remedies). If you and the employer do not reach an agreement, or if the employer does not keep its agreement with you, the EEOC may sue the employer in court. However, the EEOC is not required to sue the employer in court, even if the EEOC investigation finds that the employer violated the law or broke its agreement with you. For more information about filing your own lawsuit, see Part 5: Lawsuits in State and Federal Courts. The EEOC may dismiss your complaint at any time during the complaint process. You will be notified in writing of the dismissal and of your right to appeal the dismissal within 30 days of issue. You can file an EEOC complaint in person, by mail, and by telephone. The following is EEOC contact information. EEOC Headquarters EEOC Cleveland District Office EEOC Cincinnati Area Office Part 4(b): Complaints to State Agency: OCRCOhio Civil Rights Commission (OCRC) investigates complaints about state law violations. If your complaint includes a federal law violation, OCRC will file your complaint with the EEOC, but OCRC usually keeps and processes the complaint. If you have any doubt whether to file your complaint with a federal or state agency, Ohio Legal Rights Service recommends that you file your complaint with both. Ohio laws which prohibit employment discrimination do not require you to file a complaint with the OCRC before you may file a lawsuit in a state court. However, if you decide to file a complaint with the OCRC in addition to or instead of a lawsuit, you must do so within six months of the time you become aware that the employer has discriminated against you. Like the federal EEOC, the state OCRC can accept, and should accept, your complaint after the six-month deadline in certain situations. To be certain to preserve your right to file a complaint, Ohio Legal Rights Service recommends that you file your OCRC complaint within the six-month time period. Like the federal EEOC, the state OCRC will review and investigate your complaint. During the investigation, the OCRC investigator may try to help you and the employer to reach an agreement to settle your complaint through mediation. If you and the employer do not reach an agreement, the OCRC investigation will continue. The OCRC should complete its investigation and issue its decision within 100 days of the date you filed your complaint. However, the OCRC may allow itself more time to complete its investigation. If the OCRC investigator finds probable cause to believe that the employer violated laws which prohibit employment discrimination, the OCRC will again try to assist you and the employer to reach an agreement to settle your complaint through mediation. "Probable cause" is a standard that OCRC applies to decide whether to pursue or to dismiss a complaint against an employer. An OCRC determination of probable cause means that the investigator found facts strong enough for OCRC to believe that the employer probably violated laws which prohibit employment discrimination. If you reach an agreement with the employer during the OCRC investigation or after the investigation is completed, your part of the settlement agreement will be to withdraw your OCRC complaint and probably to give up your right to sue the employer in court. Ohio Legal Rights Service recommends that you consult a lawyer to help you decide whether to accept a settlement agreement or to proceed with your complaint. You are not required to participate in OCRC mediation. The decision whether or not to participate in mediation is yours. The decision whether or not to accept a settlement is yours. If the OCRC finds probable cause to believe that the employer violated laws which prohibit employment discrimination, and you do not agree to settle your complaint, the OCRC will issue its own complaint against the employer. The OCRC will present its own complaint against the employer during a formal hearing, either before an administrative law judge or before an OCRC commissioner. A hearing is not a trial in court, and the rules of evidence which apply to court trials do not apply to hearings. However, you have the right to submit written and oral arguments to support your complaint, and you have the right to question witnesses at the hearing. The OCRC and the employer will probably be represented by their own lawyers at the hearing. Ohio Legal Rights Service recommends that you consult and be represented at the hearing by a lawyer as well. After the hearing, the presiding administrative law judge or OCRC Commissioner will make recommendations to the OCRC about whether the employer violated laws which prohibit employment discrimination. The OCRC will issue a final order based on these recommendations. The OCRC's final order may require the employer to remedy the harm done to you in a variety of ways (see remedies on page 28). The OCRC's order is legally binding. Like the federal EEOC, the state OCRC may find no probable cause to believe that the employer violated laws which prohibit employment discrimination. OCRC may dismiss your complaint at any time during the complaint process. You will be notified of the dismissal in writing. You have the right to ask the OCRC to reconsider its decision to dismiss your complaint. The OCRC must receive your request for reconsideration in writing within ten days of the date on the dismissal letter. If the OCRC dismisses your complaint, you also have the right to ask for a review by a judge in common pleas court. You have thirty days of the date on the dismissal letter to ask the common pleas judge to review the OCRC's dismissal. The judge's review and decision will be final, subject to review by an appeals court. You can find the common pleas court in your area on the web site of the Ohio Supreme Court at http://www.sconet.state.oh.us/Web_Sites/courts/, or you can call the Ohio Supreme Court directly, telephone 800-826-9010. Unlike the federal EEOC, your complaint to the state OCRC must be filed in writing, and your signature must be notarized. The OCRC must provide you notary service at no cost. If you ask, the OCRC must provide you reasonable accommodation for your disability in order to file your complaint and throughout the complaint process. The following table provides contact information for OCRC main and regional offices and the counties each office serves.
Part 5: Lawsuits in State and Federal CourtsMost employment discrimination disputes are resolved through informal methods and by complaints to government agencies such as the federal EEOC and the state OCRC. Lawsuits can have very high monetary and emotional costs and can take years to conclude. Ohio Legal Rights Service places high value in advocacy, negotiation, mediation and federal and state agency complaint processes to resolve disputes, whenever clients' legal rights may be asserted and protected in those ways. Nevertheless, sometimes disputes must be resolved, and legal rights protected, by lawsuits in court. Laws which prohibit employment discrimination do not require you to be represented by a lawyer in court. However, employment laws and court procedures are very complicated, and the employer will probably be advised and represented by a lawyer. If you decide to sue the employer, Ohio Legal Rights Service recommends that you consult a lawyer as well. FederalMost federal laws which prohibit employment discrimination require you file a complaint with the federal EEOC before you may file a lawsuit in court. When the EEOC completes its investigation and issues you a right-to-sue letter, you may file a lawsuit in court against the employer within 90 days of your receipt of the right-to-sue letter. If the EEOC investigation establishes that the employer violated the law, the EEOC may decide to sue the employer directly in a federal court. The EEOC may also decide to join you in your private lawsuit. However, the EEOC's lawyers will represent the EEOC only and will not represent you in either a direct or a joint lawsuit against the employer. The EEOC will recommend, and Ohio Legal Rights Service also recommends, that you consult a lawyer to protect your rights if your EEOC complaint advances to court. The EEOC is not required to sue the employer in court at all, even if the EEOC investigation finds that the employer violated the law. EEOC files lawsuits in a small percentage of complaints filed. EEOC received 84,442 complaints during fiscal year 2002. Of these complaints, 15,964 (18.9%) claimed disability discrimination. In the same year, EEOC filed or joined 332 lawsuits, fewer than one-half of one percent of the number of complaints filed during that year. Source: EEOC web site at http://www.eeoc.gov/stats/litigation.html. If the EEOC decides not to sue, it will close the case, and you may file your own lawsuit against the employer within 90 days of your receipt of the right-to-sue letter. You have the right to ask the EEOC for a right-to-sue letter before the EEOC completes its investigation. If your complaint is against a private, non-government employer, you may ask the EEOC to issue you a right-to-sue letter after 180 days after you file your complaint. You may then file a lawsuit in court within 90 days after you receive the EEOC's right-to-sue letter. StateState laws which prohibit employment discrimination do not require you to file a complaint with government agencies before you file a lawsuit in court. If you decide to file a lawsuit, you may file a lawsuit in state court directly. If your lawsuit is against a state government employer, you must file your lawsuit in a state court of claims within 2 years of the time you become aware that the employer discriminated against you. If your lawsuit is against a private, non-government employer, you must file your lawsuit in a court of common pleas within 6 years of the time you become aware that the employer discriminated against you. You can find the courts in your area on the web site of the Ohio Supreme Court at http://www.sconet.state.oh.us/Web_Sites/courts/, or you can call the Ohio Supreme Court, Telephone 800-826-9010. Part 6: RemediesRemedies are ways to repair the harm done to you when the employer has violated employment laws and has discriminated against you because you have a disability. A variety of remedies are available according to state and federal laws which prohibit employment discrimination. The employer may agree to provide some of these remedies as the result of informal methods such as advocacy, negotiation and mediation. Or, the employer may be ordered by the government agency or by the court to provide some of these remedies, as the result of your complaint or lawsuit. In general, these remedies may include orders requiring the employer:
Frequently Asked QuestionsThis booklet briefly summarized employment rights protection and remedies for people with disabilities. You may have other rights under a collective bargaining agreement, under a written contract, or under an implied or spoken contract with the employer. Ohio Legal Rights Service recommends that you consult a union representative and lawyer about your rights under particular agreements. Following is a list of frequently asked questions about employment rights and discrimination. Each specific case of employment discrimination must be evaluated according to its own facts and the laws which apply.This booklet and the list of question and answers do not take the place of legal advice for any specific case of employment discrimination. For advice about your specific case and to protect your rights, please consult a lawyer.
Can the employer refuse to hire me if I have a disability?Ohio is an employment-at-will state, which allows the employer to hire, to fire and to refuse to hire for almost any reason. However, if you are qualified to perform the essential functions of the job, the employer may not refuse to you hire you only because you have a disability. Return to list of Frequently Asked Questions Is the employer required to hire me because I have a disability?Just as the employer may not refuse to hire you only because you have a disability, the employer is not required to hire you only because you have a disability. You must be able to perform the essential functions of the job, either with or without reasonable accommodation for your disability that will allow you to perform the job. Return to list of Frequently Asked Questions What is reasonable accommodation?Reasonable accommodation is a modification or an adjustment to a job or work environment that will enable a qualified applicant or employee with a disability to participate in the application process and to perform essential job functions. Reasonable accommodation includes changes in the employer's policies or procedures and other modifications to assure equal employment opportunities for people with disabilities. Return to list of Frequently Asked Questions What are examples of reasonable accommodation?Examples of reasonable accommodation include adapting a work station; providing a quiet work space; purchasing adapted equipment; modifying existing equipment; restructuring a job description; modifying a work schedule; and reassigning to another, vacant position which you are qualified to fill. Employee reassignment and some other accommodations may be subject to a seniority policy or a collective bargaining agreement. If the employer's workers are unionized, Ohio Legal Rights Service recommends that you consult the union representative. As always, Ohio Legal Rights Service recommends that you consult a lawyer. Return to list of Frequently Asked Questions Must the employer make reasonable accommodation for my disability?The employer must make reasonable accommodation for your disability in the work place and work duties to enable you to perform the essential functions of the job. However, the employer is only required to make reasonable accommodation if the employer knows that you need reasonable accommodation. Return to list of Frequently Asked Questions May the employer ask about my disability when I apply for employment?The employer may not ask any questions about your disability on job applications or during job interviews. The employer must define the essential functions and conditions of the job and then ask the applicant about his or her qualifications to perform the job. The employer may ask questions about job history, gaps in employment and other disability-neutral questions. Return to list of Frequently Asked Questions Will I lose my right to reasonable accommodation if I do not tell the employer about my disability during the hiring process?You have the right to reasonable accommodation for your disability at any time you choose to ask. You may tell the employer about your disability after many years on the job, and you will have the right to reasonable accommodation at that time. Return to list of Frequently Asked Questions Does the employer have the right to require documentation of my disability when I ask for reasonable accommodation?Once you are hired and begin the job, the employer may ask you questions that are related to the job and necessary to conduct business. When you ask for reasonable accommodation, the employer may require information to establish your disability and your need for reasonable accommodation. Return to list of Frequently Asked Questions May the employer require me to have a medical examination?The employer may not require a medical examination during the application and hiring process. After offering you the job, the employer may require a medical examination, but only the same medical examination required of every new-hire in the same job category. After the employer makes you a conditional job offer, there are no limits on inquiries about your disability. However, the employer may only withdraw a job offer if you can not perform the essential functions of the job, with reasonable accommodation if necessary. Return to list of Frequently Asked Questions Are there accommodations the employer is not required to provide?The employer must make only "reasonable" accommodation for your disability. The employer is not required to make accommodation that will lower quality or quantity standards. The employer is not required to provide personal use items such as glasses or hearing aids or to create a new job position for you if you are not qualified for the position applied for. Return to list of Frequently Asked Questions When is an accommodation not "reasonable?"An accommodation is beyond "reasonable" if it would impose "undue hardship" on the business. Reasonableness and undue hardship depend upon the nature and cost of the accommodation in relation to the nature, size, resources and structure of the employer's business. What may be an undue hardship for one employer to provide may be a reasonable accommodation for another employer to provide. In general, a large business would be required to make greater effort or spend more money to accommodate your disability than a small business. Return to list of Frequently Asked Questions Must the employer provide reasonable accommodation in attendance policies?Regular and predictable attendance is commonly viewed as a minimum standard of performance, although the employer may be required to tolerate some additional absences for your treatment needs, such as short-term hospitalization. The Family and Medical Leave Act (FMLA) and state workers' compensation laws provide additional rights or restrictions on job leave and absences. Return to list of Frequently Asked Questions Which employers are covered by the ADA?The Americans with Disabilities Act (ADA) covers private employers, state and local government employers, employment agencies and labor unions with 15 or more employees. Federal employees and employees of federal contractors may be covered under a different law, the Rehabilitation Act of 1973. The Rehabilitation Act has different requirements, including a 45 day time limit for filing complaints about rights violations. Return to list of Frequently Asked Questions What employment activities are covered by the ADA?The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions and privileges of employment. The ADA applies to recruitment, advertising, tenure, layoff, leave, fringe benefits and all other employment-related activities. Return to list of Frequently Asked Questions Do I have rights as a person with a disability under the ADA?The ADA protects the employment rights of qualified individuals with disabilities. The ADA defines "individual with a disability" in two parts, both of which must be true. (1) You must have a physical or mental impairment, which may include emotional or mental illnesses, and (2) your impairment must result in a substantial limitation in one or more major life activities, such as thinking, concentrating, learning, working or caring for oneself. Return to list of Frequently Asked Questions Is my psychiatric condition covered by the ADA?As long as your psychiatric condition meets the ADA's two-part definition of disability, you are a qualified individual with a disability with employment protections under the ADA. Not all psychiatric conditions are covered by the ADA because they are not judged to substantially limit major life activities. For example, psychiatric conditions which last only a short time or cause only minor limitations in functioning would not be covered by the ADA as disabilities. Return to list of Frequently Asked Questions Does the ADA include drug addiction as a protected disability?People who use controlled substances illegally, even a prescribed drug without the required supervision of a licensed health care professional, are not considered by the ADA to have a disability. However, the ADA protects people who are currently in or have completed a supervised drug rehabilitation program and no longer use drugs illegally. Return to list of Frequently Asked Questions Which conditions are not considered disabilities by the ADA?The ADA does not include as disabilities gay, lesbian and bisexual orientations, sexual compulsions and disorders, compulsive gambling, kleptomania, pyromania and psychoactive disorders that result from current illegal use of drugs. The ADA includes alcoholism among covered disabilities, but excludes drinking or alcohol impairment while working. Conditions which pose a "direct threat to health and safety" may be covered disabilities, if the threat can be eliminated by reasonable accommodation. Return to list of Frequently Asked Questions May the employer discriminate if people believe my condition is dangerous?Employment practices based on stereotype and unfounded assumptions about disability are illegal. The employer's judgment that your condition is dangerous must be based on medical judgment and objective evidence. The employer must consider duration of the risk, nature and severity of the potential harm, likelihood that harm will occur, and imminence of the harm. Return to list of Frequently Asked Questions Does the ADA protect me if I have no disability but I am associated with someone who does?The ADA prohibits employment discrimination based on your relationship or association (not necessarily family relation) with a person with a disability. The law protects you from employment discrimination based on biased assumptions that your relationship or association with a person with a disability would necessarily affect your job performance. Return to list of Frequently Asked Questions Does the ADA protect my confidentiality?Any information about your disability must be stored on separate forms and treated as a confidential medical record. The record must be stored separately from other personnel files and accessible only to designated staff persons. Return to list of Frequently Asked Questions Are there exceptions to ADA confidentiality protections?There are five exceptions to the confidentiality requirements:
Return to list of Frequently Asked Questions Funding for This PublicationOhio Legal Rights Service is funded by, and prepared the publication in part through, grants under the following federal programs:
This and other publications are available in print on request: Ohio Legal Rights Service Related Topics:
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