is equivalent to Rehabilitation Act (which is applicable only to federal employees):
Having an impairment (mental or physical) which substantially interferes with one or more major
life activities such as walking, bending, sitting, pulling, pushing, holding (a tool/bag, etc.),
stooping, climbing ladder or stairs, running, jogging, breathing, shopping groceries, take care of
yourself, dressing, combing, bathing, sleeping, eating, having sex, procreating, learning, reading,
concentrating, driving (?), cleaning your house, cooking, gardening, lifting a child, eating at a
restaurant, going to theater/church/bar, socializing, remembering recent activities, listening,
seeing, talking, communicating, eating, swallowing, growing, digesting (food), bowel movement,
bladder functions, sensing (by touch or by feeling via brain activity, etc.), carrying out routine
chores at home, and working (at the same or comparable job within commuting distance with or
without accommodation--this gets legally complicated; because usually you are supposed to be
able to perform the essential functions of the job if, as explained below, you are claiming
disability discrimination--so avoid using this example).
Episodic conditions can be deemed disabling if, when active, it interferes with one or more major
Perceived ("regarded as") Disability:
If an employer failed to act or acted in adverse way in disparate manner based on non transitory
and minor impairment, the applicant or employee is "regarded as" or perceived as disabled--
regardless of whether the employer knew such impairment interfered with one or more major life
activities. To claim perceived disability, one must have non transitory and minor impairment in
the least--regardless of whether such impairment substantially interferes with one or more
major life activities.
An individual claiming discrimination based on perceived disability cannot claim to be
accommodated, unless he or she actually has a disability that meets the above definition and
requested accommodation based on disability.
Denied accommodation claims and Worker's Comp claims:
Light duty under Workers' comp. (OWCP) provision in general should not be confused with
reasonable accommodation under ADA/Rehabilitation Act. Light duty under OWCP usually
involves substantial alternation of the job in such a way that you are no longer performing the
essential functions of the job you were hired for or have been performing for more than 6 months
or a year.
But this could get legally complicated. For example, if you were performing a light duty for more
than a year, it becomes your main duty. And, say, due to changes in your medical condition, you
needed an accommodation to continue to perform the light duty. In that case, you are entitled to
a reasonable accommodation while on light duty, as long as you meet the definition of disability
under ADAAA/Rehabilitation Act, as specified above.
Otherwise, in general, if you are disabled under ADA/Rehabilitation Act, you are entitled to a
reasonable accommodation, if you can perform the essential functions of the job you were hired
to perform or have been performing more than 6 months or a year.
If you cannot perform the essential functions of the job, you are not entitled to a reasonable
accommodation, although you may be entitle to a suitable light duty (if your OWCP claim is
approved and if such light duty work is available).
article by Chungsoo J. Lee.
Your accommodation requests must be reasonable. That means, for you they must be suitable
to be able to perform the essential functions of the job; and for employer they must not cause
Undue hardship must be defined on case by case basis--depending on the size of the company,
what was requested as accommodation, etc. A claim of undue hardship without showing or
plausible explanation should be challenged as a pretext for denial in violation of
Accommodation must be requested clearly and as specifically as possible. A vague request,
such as lateral transfer, can easily be denied by the employer, saying: there are no such
positions. Present a specific vacant position, if a lateral transfer is what you are requesting as a
Once accommodation is requested, both the employer and the employee have obligation to
engage in an "interactive process." This means, it takes two to tango. You and the
supervisor/HR must actively work out a solution to come up with a reasonable accommodation.
Unilateral demand on the part of the employee or unilateral denial on the part of the employer
cannot be deemed to be engaging in an interactive process. Failure to engage in an interactive
process is just as serious a violation as a blatant denial of accommodation.
Disability Discrimination and Disability Retirement:
As long as you can perform the essential functions of the job (with or without accommodation),
you can claim disability discrimination, if you meet the definition of disability. But, often times,
your disability is made worse by employer's discriminatory or retaliatory actions (which are often
persistent and on-going, so as to create an intolerable working condition), as result of which you
could no longer perform the essential functions of the job or of any job within the same or similar
classification and pay grade within commuting distance, in which case you may in turn qualify for
Social Security Disability benefits and Disability Retirement. If you qualify for disability retirement,
you may no longer be able to claim (a new) disability discrimination, as you may no longer be
able to perform the essential functions of the job. This does not mean that your past disability
discrimination claims would become automatically moot or frivolous. It means that you cannot
make similar claims any more, as you can no longer perform the essential functions of the job
due to disabling disability. Hence, the disability retirement. There is an exception to this,
however. You may still be able to claim a constructive discharge.
Constructive Discharge claim:
A constructive discharge claim must claim "intolerable working condition" to which the
complainant was subjected to in such as way that any reasonable person under similar
circumstances would have no choice but to quit, retire, take demotion, etc.
If as result of discrimination and/or retaliation your working condition became so "intolerable"
that any reasonable person under similar circumstances would have no choice but to quit, retire,
take demotion, etc.; and, as result, your disability became worse; you may be able to claim a
constructive discharge when your retirement, resignation, or demotion becomes effective. In that
case, your logic/legal argument behind your claim is: Had you not been discriminated/retaliated
against, your working condition would not have been made intolerable, and your health would not
have worsened as result; and had your health not been made worse, you could have been able
to perform the essential functions of your job (with or without accommodation)--that is, you would
not have had to quite, retire, take demotion, etc.
This scenario is the logic/legal argument behind your constructive discharge claim involving
disability retirement. Of course, you don't present the logic/argument as facts. You present the
facts first that would support such a logic/legal argument. You may summarize the material facts
with such a logic/argument, however. See more on Constructive Discharge.
Disability Retirement and Workers' Comp:
If your disability was made worse (to the point of inability to work) as result of
discrimination/retaliation in the work place, you may qualify for Workers' Comp claim in addition
to disability retirement (as the worsening of your condition was job-related). The two benefits
systems (OWCP and Retirement) may complement and supplement each other in terms of
compensation. But, also, the two may mutually exclude each other in terms of compensation.
That is, you may have to reimburse if you were overpaid as result of receiving benefits from both
systems. For this reasons, retirement application, SF 3107 Section F (which must be filled out
for both regular retirement and disability retirement), asks about your OWCP claim. See
Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or ADAAA)
responsible for any errors or misrepresentation contained therein.
|Disability Discrimination Claims