About 42.5 million Americans live with some sort of disability, according to 2021 data from the U.S. Census Bureau and the Pew Research Center. In decades past, having a disability meant that accessing businesses and public spaces could be challenging. Finding meaningful employment could likewise be difficult, as legal protections for individuals with disabilities were sparse.
Fast forward to the present day, when federal protections for workers with a disability are well-defined and apply broadly to almost every employer. In part, the landmark Americans with Disability Act prohibits employers from taking any adverse employment action against a job applicant or employee based on that person’s disability.
Yet those whom the ADA was designed to help protect might still wonder, “Can you be fired for not disclosing a disability?” The answer is generally “No.” But like with many laws, there are exceptions, and the answer in your case can depend on the specific circumstances of your situation.
Federal Laws Protecting Employees With Disabilities
The Americans with Disabilities Act (ADA) is the primary federal law governing the relationship between employers and employees and job applicants with disabilities. The Act, signed into law in 1990, culminated in grassroots efforts by individuals with disabilities to demand greater access to public spaces and employment opportunities.
Employment is not the only sphere covered by the ADA. Protections for Americans living with disabilities extend to transportation, public accommodations, and government services. Title I of the ADA prohibits discrimination in employment. Its provisions are enforced by the Equal Opportunity Employment Commission (EEOC).
Specifically, the ADA prohibits covered employers from discriminating against employees with disabilities, including in:
- Advertising and recruiting for a position
- The hiring and selection process
- Compensating employees
- Assigning job duties to employees
- Granting leave or time off
- Terminating an employee’s employment
Most employers and agencies connected with employment must follow the ADA. This includes private employers, government employers at all levels, employment and staffing agencies, and labor organizations.
Employers violating the ADA can be liable for damages.
Is Disclosing a Disability Mandatory?
In most situations, you decide to tell your employer about a disability or not. Your employer cannot compel you to disclose a disability during the hiring process or at any time during your employment. In most cases, it is illegal for an employer to mandate that you disclose a disability.
It can be confusing to know whether you must disclose a disability because some employment applications will ask for this information. For example, an application may ask if you need a reasonable accommodation during the hiring process. This is a legitimate but voluntary request from the employer. If you do not feel you need a reasonable accommodation, you do not need to disclose a disability.
Similarly, many employers include a section in their employment application asking if you identify as a veteran or a person with a disability. Such sections should indicate the information is being requested to compile statistics for the EEOC and is not used during the hiring process. Disclosing your disability in this section is also voluntary.
However, if you have an apparent disability, an employer can ask limited questions about that disability. Specifically, the employer can ask whether the disability impacts your ability to perform essential job functions or if you need accommodations.
For example, suppose you are applying for a job requiring you to enter computer data. You lost your left arm in an accident years ago, and this injury is obvious to any casual observer. Your employer can ask about this injury during the interview, but their questioning can only extend to whether you can perform the job’s essential functions.
Can You Be Fired for Having a Disability?
In general, the ADA protects you from being fired by your employer simply because you have a disability. The ADA’s protections extend throughout the employment relationship, from when you apply and are interviewed to the end of your employment. At no point can your employer take adverse action against you on the basis of your disability.
This protection applies regardless of whether you disclose your disability to your employer. For instance, suppose you have a prosthetic leg but do not mention any disability or need for accommodations when interviewing for an outside sales position. The employer cannot refuse to hire you because of your appearance.
Similarly, say you are working as a traveling salesperson when you suffer a leg injury. As a result, you request your employer allow you to use a motorized mobility device to complete your job duties as a reasonable accommodation. Assuming your request is a reasonable accommodation, the ADA prevents your employer from terminating you.
Exceptions to ADA Protections
There are three major exceptions to the ADA’s workplace protections for individuals with a disability. First, if your employer provides you with the reasonable accommodations you request for your disability and you are still not able to perform the job’s essential functions, your employer can terminate your employment.
Second, an employer can refuse to hire you or terminate your employment if the accommodation you request is unreasonable and you cannot otherwise perform the job’s essential functions. What is considered an “unreasonable” accommodation is fact-specific.
For instance, suppose the accommodation you request would require a multi-million dollar renovation of the employer’s facilities. Your employer is a small business with limited resources.
In this situation, a court may find your accommodation request unreasonable for the employer. If no other reasonable accommodations are available, your employer may terminate you if you cannot perform your job’s essential functions.
Next, your employer can terminate your employment for reasons unrelated to your disability. For example, suppose you are consistently tardy to work or constantly on your cell phone, violating your employer’s policies. Your employer is free to terminate you for these reasons.
Rights and Responsibilities When Disclosing a Disability
The ADA protects your right to be free from disability discrimination when you inform your employer of a disability or your employer learns of your disability. Your employer cannot treat you as an inferior employee or more poorly than your peers solely based on your disability.
In most cases, you also have the right to privacy concerning your disability. If your disability is not readily apparent, an employer cannot force you to disclose whether you have a disability.
If you do disclose you have a disability, your employer is not free to pry into the details of your condition. They are limited to asking questions about your need for accommodations and ability to perform your job tasks.
You also have the right to request reasonable accommodations if you have a disability. While you and your employer can negotiate over what reasonable accommodations you need, ultimately, your employer must provide them if they enable you to do your job.
However, these rights come with responsibilities. Most significantly, you must inform your employer if you have a disability requiring a reasonable accommodation. The ADA will not protect you if you do not tell your employer about a disability for which you need accommodation and such disability was not apparent.
You are responsible for negotiating in good faith with your employer once you request a reasonable accommodation. If you suggest one accommodation, but your employer suggests another, you must consider whether that proposed accommodation would be sufficient.
Legal Recourse for Wrongful Termination Related to Disability
Can you be fired for having a disability? If your employer takes any adverse action against you in the workplace solely based on your disability, then that employer may have violated the ADA. Depending on the nature of the violation, the EEOC or the Department of Justice will investigate the matter.
You can also bring legal action against your employer for violating your rights under the ADA. By doing this, you may be entitled to recover compensation for losses you suffered. To do so, you must prove your employer’s actions were motivated by a discriminatory intent and not some other valid reason.
Investigating and pursuing a legal claim for compensation following illegal disability discrimination can be complicated and time-consuming. Gathering evidence to support your allegations and refute your employer’s defenses alone can demand considerable time.
An experienced attorney can significantly improve your chances of success and alleviate much of the stress associated with filing a claim.
Consequences for Employers Violating Disability Disclosure Laws
Depending on the violation and how you have been impacted, several types of damages and other legal remedies are available, including back pay and front pay, compensatory and punitive damages, and attorneys’ fees and litigation costs.
Equitable remedies are court orders directing the employer to take certain actions. For example, if you were not hired for a job because of your disability, the court could order your employer to hire you.
Similarly, if you were terminated from your job because of your disability, your employer could be ordered to reinstate you at your previous position.
If you sustained economic losses, back pay and front pay would make you whole. For instance, suppose you were wrongfully denied a promotion that would have resulted in a higher pay rate. You might be entitled to the difference between your current pay rate and the one you would have received had you been promoted.
Compensatory damages are also available to compensate for emotional harm that was suffered.
Finally, violations can result in statutory penalties. These penalties can be up to $75,000 for a first-time violation and up to $150,000 per violation for repeated ADA violations. These penalties are paid to the government and are meant to penalize businesses that do not take their responsibilities under the ADA seriously.
Reach Out to an Attorney for Help
You have rights if you believe your employer has taken any adverse employment-related action against you based on your disability. While the ADA does not protect you from termination if you cannot perform the essential functions of your job, it does prevent your employer from taking action against you just because of your disability.
Contact our experienced team of Florida employment lawyers at Wenzel Fenton Cabassa P.A. for a free case evaluation. We can inform you of your rights and how to exercise them. Our Florida disability discrimination lawyers will tirelessly pursue the compensation you deserve.
Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.