Handicapped Workers’ Rights Under Employment Discrimination Law – Know Your Rights izon.1888932-2946.ws

The Americans with Disabilities Act 1990, was enacted to prevent discrimination by employers against handicapped, or to use a new phrase, differently abled, persons. This enactment confers certain rights to the handicapped, whether it be hiring, wages, promotion, or layoffs. ((In addition, employers are encouraged to employ them, by giving them an incentive, or making it obligatory to hire a certain percentage of their workforce.)).

What are these rights, its scope, when it can invoked and what remedy is available?

First, note that this anti-discrimination legislation covers only those companies that employ 15 or more people. This includes State and Federal Offices, and employment agencies, and even the Labor Unions.

The Commission appointed under the Act, namely, the Equal Employment Opportunity Commission (EEOC) defines an individual with disability as one who

- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of such an impairment; or
- Is regarded as having such an impairment

It further records that the person should be able to perform the duties of a position with “reasonable” or without, accommodation provided by the employer. What is reasonable accommodation? Again, the EEOC comes to the rescue in defining this term. It includes making the existing work area or space “accessible and usable” for the disabled, restructuring the job, modifications in schedules, reassignment of the worker in question to another vacant position, modifying devices or acquiring equipment, devices, materials used for training, and providing interpreters or readers as may be found necessary.

It is also important to understand that this is not a unfettered right. In order not to create rights which would intrude into another’s rights employers are exempted if they can show cause that these rules would cause undue hardship, impose financial resource constraints, or would impair their physical space of operation, or cause reduction in productivity, or lower quality standards in making such accommodation.

Medical examinations, inquiries are prohibited from being imposed exclusively on the disabled persons. Employer are prevented from asking about the disability, its existence, severity, etc. However, they can and do have the right to ask about the ability to perform the functions required, and may have to take an exam, PROVIDED that other applicants, without apparent disability are also required to undertake the same process. In other words, what applies to normal workers would apply equally to the disabled as well.

The remedy for any breach of these rules and regulations under the law lie in a civil suit for damages or reinstatement. The onus of proof lies on the person bringing the suit; and the general rules for discovery of evidence as existing the the Civil Code would apply.

None of the laws provide shelter for those with alcoholism or use of illegal drugs. drug use or alcoholism. No protection is afforded to the disabled were the employer to ask for such tests, so long as the same tests are applied to those with normal abilities.

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Employment/Labor Law Disputes: Benefits of Arbitration and/or Mediation employment of law

In today’s legal landscape, increasing numbers of employers provide an alternative to costly and time consuming litigation by utilizing both arbitration and/or mediation in their breach-of-contract Employment/Labor Law cases.

Mediation allows the parties an opportunity to review their positions through the objective perspective of a certified mediator. Furthermore, the mediation process provides each side an opportunity to consider the proposed contract breach through the filter of the objective, impartial guidance of the mediator, thus assisting each party to make informed choices that are in their best interests. A mediator, working as a facilitator toward a resolution in the interest of both parties, is able to present a non-emotional setting for potential resolution of the dispute; moreover, settlement occurs in what employers and employees often consider a private matter without a public airing as matters in mediation are confidential for the parties involved. A number of contracts may require mediation at some point in the dispute process, providing a more expedient and less costly process than litigation.

Arbitration, on the other hand, can be either binding or non-binding. Like mediation, the process is less expensive and more expedient than litigation and, thus, less emotional for the parties. Non-binding arbitration, like mediation, is not a final adjudication unless both parties are in agreement. In non-binding arbitration, parties may accept the decision of the arbitrator, but if they don’t, the process ultimately provides the following: (1) gives each party the opportunity to review more objectively the position of the other; (2) provides each party an idea about the potential outcome of litigation; and (3) allows each party to review its position and make more informed choices in regard to the settlement of the case without litigation.

Binding arbitration, increasingly included in employment contracts, allows both parties to present their positions and evidence to an arbitrator who renders a decision binding on both parties in the dispute. The arbitrator hears the evidence, reviews it either alone or as part of an arbitration panel, and renders a binding decision. In the event that a contract includes binding arbitration as the resolution process in contract breach, the employee’s or employer’s only recourse to a non-favorable decision is appeal, a more timely and costly road.

Litigation of contract breach can be both financially and emotionally exhausting. To reduce the anxiety and financial difficulty, mediators and arbitrators work diligently to bring the parties to resolution and avoid the stress and cost of litigation. The benefits of mediation and arbitration are obvious: cases move to resolution far more quickly than litigation if agreement is reached; disputes remain private rather than suffering a public display; the parties are afforded information to review and an objective viewpoint to consider in order to achieve settlement, or, in the case of binding arbitration, an opportunity to move quickly to resolution rather than waiting for a court date. In summary, alternative dispute resolutions (both mediation and arbitration) provide a less anxiety producing and less costly method by which to resolve employment/labor contract disputes. A well-trained mediator or arbitrator with a broad base of experience offers an opportunity for desired resolution of disputes.

Employment/Labor Law Disputes: Benefits of Arbitration and/or Mediation