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Job Seekers With Disabilities Need To Know Their Legal Rights From The Get-Go

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According to recent data published by Creative Access in the U.K. – less than one-third of individuals working in the creative industries and identifying as disabled feel optimistic about their opportunities for career progression.

That’s in contrast to 69% of non-disabled survey respondents.

Additional findings showed that a mere 25% felt they had access to important contacts and networks while just a third believed they possessed the confidence to meaningfully progress their career having endured negative experiences at work.

Many such experiences revolve around employers failing to make appropriate workplace accommodations to allow them to operate at an optimum level and a general lack of awareness of disability issues amongst non-disabled co-workers.

Zooming out to view the broader picture, in the United States the Bureau of Labor Statistics reported earlier this year that the unemployment rate of people with disabilities, at 10.1% is almost double that of non-disabled people.

At the same time, people with disabilities in the U.S. make 26% less on average than their able-bodied peers.

Much has previously been written, entirely justifiably, about the need for employers to scratch below the surface and develop a keener understanding of the intrinsic value that lies in having a diverse workforce.

Though this would likely represent the most effective driver of change – it also pitches individuals with disabilities as passive backseat passengers – waiting for both decision-makers and the overarching culture to become more open and embracing of diversity.

While the long game is not without its merits – far lower-hanging fruit is ripe for picking by both job-seekers and employees alike through simply ensuring they possess a solid grasp of the legalities concerning workplace disability inclusion.

Not only can a sense of legal surefootedness help bolster the confidence of a segment of the workforce that is often plagued by uncertainty and insecurity – it should also educate other stakeholders and assist in achieving some semblance of organizational consistency.

This is not to say that employees with disabilities must absorb the knowledge and workload of the corporate legal department in addition to their day job.

Simply arming themselves with the basics, not only on what protections they are entitled to at work but also on what they are not, should be enough to dispel misconceptions and get the job done.


Knowing your ADA rights

Roman Peskin is co-founder and CEO of ELVTR, a leading provider of workplace DEI education.

“Diversity, equity, and inclusion in a workplace is not a fashionable trend — it's the law, quite literally,” says Peskin.

“While I am happy to see that more and more employers are taking the issue seriously, it’s vital that each employee also knows what they are legally entitled to and, equally importantly, what they are not.”

Entitlements include:

Reasonable accommodations

Reasonable accommodations involve changes to the work environment or how work is undertaken so that a person with a disability can perform the job in a similar way to other employees.

Examples may include – making physical workspaces and non-working areas accessible and usable and providing adjustable workstations and assistive technology where appropriate.

Employers are also duty-bound to consider modifying work schedules for employees with disabilities such as the use of flexible hours and rest breaks. It may also be necessary to adapt other policies, practices and procedures such as how training is undertaken.

Fair pay and benefits

The Equal Employment Opportunity Commission (EEOC) enforces laws that make it illegal to discriminate against a job applicant or an employee based on race, color, religion, sex, national origin, age, disability or genetic information.

This means an employer cannot lower the salary of staff members with disabilities or pay them less than their non-disabled co-workers performing the same job. Even if employers have to make workplace adjustments – they are not allowed to recover costs through any type of decrease in salary.

Respect, ethical treatment and disability disclosure

When applying for a job, an employer cannot ask candidates if they have a disability. Legally, they can only ask about someone’s capability to perform the essential functions of the job with or without reasonable accommodations.

Medical examinations can only be required after a candidate is hired and not as part of a pre-screening process. Furthermore, there would need to be an established policy or practice whereby all company employees within that particular job category were also required to undergo a medical exam.

Filing charges in the event of workplace discrimination

It’s possible to file a charge of discrimination with the EEOC in cases of workplace disability discrimination. Any charge must be filed within 180 to 300 days from the date the discriminatory event happened depending on state or local agency law. In such situations, it is advisable to contact an attorney or local EEOC office ahead of time to plan any next steps.


Limits of the ADA

As important as it is to have the above protections enshrined in law – the Americans with Disabilities Act is not without its limitations, so it’s equally important to understand those elements that employees with disabilities simply cannot demand of their employer.

These include:

Additional health insurance

Employers are not required to provide additional health insurance to an employee with a disability, even if their disability causes them to have more complex health conditions. The ADA only requires employers to provide equal access to the same health insurance coverage to all employees.

Avoidance of drug testing

Again, the ADA does not protect employees with disabilities from drug testing, as long as the policy is applied equally to all employees.

Preference for employment and disability quotas

Certain countries around the world including France, Germany and Spain have mandated quotas in place for employing individuals with disabilities depending on the size of the company but the U.S. is not one of them.

Therefore, employers are not required by law to give preference to an individual with a disability over another equally qualified candidate.


Certainly, the existence of the regulations detailed above does not preclude the fact that workplace disability discrimination, both subtle and overt, is still commonplace in 2022.

However, it does at least offer some degree of grounding and assurance, particularly to individuals with disabilities in employment, that there is a framework in place to meet their needs. Although, there is no blank cheque.

For those still job hunting, Peskin has the following advice:

"People have biases; this is a part of human nature. Obviously, there is a long way to go before we can claim that recruiting in America is bias-free. But one bias that I want to call out specifically — is when people with disabilities assume from the outset that they are less likely to find a good job because of their disability. My advice is to be conscious of how you perceive yourself. Don't give in to fears of rejection or imposter syndrome. Look through the job requirements, and if you fit the description — just go ahead and apply for the job."

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