What coctitutes discrimination as defined by the ADA?

UPDATED: Oct 15, 2011

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What coctitutes discrimination as defined by the ADA?

My younger brother is mentally handicapped. He has been passed over/refused promotions and denied pay increases even though other employees with less seniority and poor performance reviews have received these things.

Asked on October 15, 2011 under Employment Labor Law, Arizona


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The issue is whether the negative job action--in this case, being passed over for promotions or raises--is because of discrimination against the disabled, or whether it is due to legitimate job needs. While companies cannot discriminate against the disabled, they are not required to employee them in positions which they simply cannot do, even with some "reasonable" accomodations (reasonable accomodations are changes in process or assistive technology which are not too expensive or disruptive to the business). You say that your brother is mentally handicapped; if as a result of his handicap, he cannot do the higher level position (the one coming with the promotion), for example, that is not illegal discrimination; the company does not have to put him into a position he cannot do. Nor does it need to pay him more than the appropriate rate it would pay others for the work that he actually does do.

If given the above guidelines, you think that your brother is being discriminated against, he should consult with an employment lawyer to examine the situation in more detail. Good luck.

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