Americans with Disabilities Act and Burn Survivors
By: Larry Buckfire, Attorney At Law

In 1990, Congress enacted the Americans with Disabilities Act (ADA) to short-circuit disability discrimination in the workplace. The Americans with Disabilities Act gives civil rights

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For those who fit within its protected categories, the ADA forbids disability-based discrimination either in the hiring process or in the terms and conditions of existing employment. For burn survivors, disability discrimination can be a sorry fact of life in today's employment world. The ADA can be used by burn survivors to overcome this unequal treatment in the workplace.

The biggest hurdle for burn survivors seeking to rely on the protection of the ADA is to fit within the statute's increasingly narrow definition of disability. Many of the lawsuits that are brought under the Act and there are a lot of them focus on just what it means to be disabled. While most burn victims can easily satisfy the ADA requirement that a "physical or mental impairment" exists, it may be more difficult to meet the requirement that the impairment "limits one or more of the major life activities." A burn injury, though limiting, may not rise to the level of impairment that courts have determined to be disabling under the ADA. As a result, burn survivors should be aware of the Act's parallel protection for "perceived" disability.

When Congress enacted the ADA ten years ago, it used burn injury as an example of the kind of injury that often prompts an inaccurate perception of disability in employers. For burn survivors who suffer the stares and marginalization of co-workers and employers, this comes as

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little surprise. Fortunately, Congress had the foresight to realize that perception often equals reality in the workplace. For burn survivors, it is helpful to be aware of the distinction between these two concepts.

The ADA defines "major life activities" to include "those that the average person in the general population can perform with little or no difficulty such as caring for oneself, performing manual tasks, walking, seeing, hearing and working." To be disabled in the major life activity of "working," an employee must be unable to perform in a broad range and class of jobs, not just the job he or she performed before the injury. For an injury to be "substantially limiting"
under the ADA, it must be both lasting and severe.

Under the "perception" track of the ADA, an employee need not prove that he or she has a substantially limiting impairment. Instead, the employee must show that the employer regarded the employee as having such an impairment and that it engaged in discrimination based on its perception of disability.

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For those who are disabled within the meaning of the ADA either actually disabled or perceived to be disabled the Act forbids an employer from taking any adverse job action based on disability. An adverse action includes not only termination, but demotion, pay cuts, unwanted transfers, failures to hire or any other action that adversely impacts an employee's ability to work. Both for new hires and for existing employees, the ADA requires that disabled employees be "otherwise qualified" to perform in their jobs before they can invoke the protection of the Act. A "qualified" person is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."

For example, if a burn survivor is simply physically unable to perform in his or her pre-injury job, the employer is not required to make an accommodation. Also, if a burn survivor held a pre-injury job as an outdoor construction worker and his burn injury required that he work in a temperature controlled environment, the employer would not be required to accommodate him in that job. If, however, there was an opening as a data input clerk in the employer's office, and the employee had the computer skills to perform in that job, a transfer could be
considered a reasonable accommodation.

The employer is required to act reasonably with respect to the employee. Before an employee can go to court to enforce the statute, he or she must first file a discrimination claim with the Equal Employment Opportunity Commission ("EEOC"). Importantly, this claim must be filed within 300 days of the act of discrimination (i.e. termination, demotion) in order to preserve the right to bring a lawsuit. If a claim is not filed with the EEOC within this timeframe, the disabled employee will not be able to sue under the Act. In addition to the ADA, virtually every state in the country has a law that prohibits disability discrimination. Usually the state discrimination statutes parallel the ADA with one important exception.

Although the ADA is federal law and must be followed throughout the United States, each state has separate laws and remedies that may be available to burn survivors. It is important for a burn survivor facing discrimination in the workplace to contact the EEOC immediately and a private attorney to enforce his or her legal rights.

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