Both the Texas Labor Code and the federal Americans with Disabilities Act (“ADA”) prohibit disability discrimination in employment.  These laws make it unlawful for an employer to discriminate against an employee with a disability (or an employee who the employer perceives to be disabled) when making decisions related to hiring, firing, promoting, training, compensating, or other terms of employment.  In addition, these laws prohibit an employer from retaliating against an employee for opposing an unlawful act of disability discrimination.

Under federal law (which Texas law closely mirrors), “disability” with respect to an employee means:

• a physical or mental impairment that substantially limits one or more major life activities of such individual;
• a record of such impairment; or
• being regarded as having such an impairment. 

The meaning of “disability” within the law has been the subject of great dispute in the courts and was given a very narrow meaning by the courts.  However, in 2008, amendments were made to the ADA which expand the definition of disability and provide for greater protection for disabled employees.  In 2009, the Texas Legislature also passed new amendments to state law seeking to implement the federal amendments to the ADA into Texas law.  As a result, more employees that are subjected to disability discrimination will be able to protect their rights in the court system.

The ADA protects “qualified” employees, which is defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  However, an employer may not be required to hire or employ a disabled and qualified employee in limited circumstances, such as where an employer can show that an accommodation would cause undue hardship.

It should be noted that determining who is protected by the ADA and what protections an employee may receive under the ADA can be a complicated exercise and is highly fact specific.  To determine if you are protected under the ADA, you should contact an attorney who has worked with the ADA and disability discrimination.

EMPLOYEE REMEDIES FOR DISABILITY DISCRIMINATION

In a lawsuit for disability discrimination, an employee may be able to recover:

• Lost wages and benefits to the time of trial
• Lost wages and benefits into the future
• Compensatory damages
• Punitive damages
• Attorney’s Fees

Prior to filing a lawsuit, an employee must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and/or Texas Workforce Commission (TWC).  These agencies enforce the laws protecting employees from age discrimination in the workplace.