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Handicap Discrimination and Retaliation

Both State and Federal Law prohibit employment discrimination because of an individual’s handicap.  The Americans with Disabilities Act (“ADA”) 42 U.S.C.A. § 12101 et seq. is the federal law that prohibits handicap discrimination.  Michigan’s Persons With Disabilities Civil Rights Act (PWDCRA) M.C.L.A. 37.1101 et seq., is a state law that also prohibits handicap discrimination. The ADA however provides more protection than the state law because it was amended to broaden the definition of what a protected disability is.  The federal law also takes a more liberal view on what is a permanent disability and therefore brings more employees within its protection.  

Under both laws it is also unlawful to discriminate against an employee who is not disabled, as defined by the law, if the employer wrongfully thought the employee was disabled and used that as a reason to subject the employee to an adverse employment decision.  Under both laws however employees must be able to perform the essential elements of their job with or without an accommodation. If an accommodation will permit an employee to perform the essential elements of his or her duties the employer is required to grant an accommodation. Recently the Courts have ruled that telecommuting may be a reasonable accommodation depending upon the duties that have to be performed. 

It is important that when an employee contemplates requesting an accommodation that they consult with a medical professional and an attorney to determine whether a requested accommodation works for their medical condition and permits essential duties to be performed so as to bring them within the protection of the law. Too often employees have been led to believe that if they have a bona fide injury or disability and medical certification to that effect they are protected from being terminated.  Nothing could be farther from the truth.  If you are unable to perform the essential elements of your job you can be fired.  If you are simply sick or temporarily injured you also may not qualify for protection.  

Although the ADA provides greater protection than the state law it has one disadvantage.  Under the ADA an employee must fill a charge with the United States Equal Employment Opportunity Commission (EEOC) before a lawsuit may be filed.  There is a short time limit for doing so, and if the time is missed an ADA case may not be brought.   Under the state law however, the employee generally has three years to file a case and is not required first file a charge with the Michigan Department of Civil Rights.  It is important therefore to seek early legal advice when an issue of handicap discrimination first presents itself.  If you wait until your employment has been terminated before seeking legal advice it may be too late to correct the damage done.  The law firm of Huizenga & Hergt P.C. has guided its clients through the process of seeking an accommodation and championing their rights since the ADA was passed and was one of the first firms to file charges under the law in the country. It has also been aggressive in pursuing cases against employers who retaliate against an employee for requesting an accommodation.

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