Chapter 1: Employment

This chapter discusses state and federal statutes which protect the employment rights for individuals with disabilities.

I. STATE LAW

The Georgia Equal Employment for Persons with Disabilities Code (GEEPD) guarantees people with disabilities the fullest participation in the social and economic life of Georgia and a right to engage in remunerative employment. The GEEPD protects the right to lawful employment of all Georgians, without discrimination because of a disability (OCGA § 34-6A-1).

A. Definition of Disability

Under the GEEPD, the definition of disability includes both physical and mental disabilities. The GEEPD defines “individual with disabilities” as any person who has a physical or mental impairment which substantially limits one or more of a person's daily life activities (OCGA § 34-6A-2 (7)(A)-(B)).

• Physical or mental impairment means any physiological disorder or condition or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, or endocrine; or mental retardation and specific learning disabilities.

• Substantially limits means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining, or advancing in employment because of a disability.

• Major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

B. Covered Employers

An “employer” for the purposes of the GEEPD means a person or governmental unit or officer in this state having in his, her, or its employ 15 or more individuals or any person acting as an agent of an employer (OCGA § 34-6a-3).

C. Employer Rights

An employee does not have to provide a person with a disability with the opportunity to select a job which the employee with a disability could perform ( Dugger v. Delta Air Lines , 173 Ga. App. 16, 325 S.E.2d 394 (1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2330, 85 L.Ed. 2d 847 (1985)).

Employers do not have to modify their physical facilities or grounds to exercise a higher level of caution for an individual with a disability.

D. Prohibited discriminatory activities

No employer shall discriminate against a person with a disability with respect to the terms and conditions of employment (pay, hours, etc.) because of the person's disability.

Placement services and labor organizations must refer individuals with disabilities for employment. Apprenticeship, training, retraining, and on-the-job training programs cannot discriminate against any individual because of a disability, in the admission to or the employment in such programs.

Employers cannot print or publish advertisements or notices indicating any preference for or discrimination against disability, unless the criterion is job related.

E. Retaliation

Employers, employment agencies, and labor organizations cannot retaliate against a person who has opposed unlawful discriminatory practices under the GEEPD or participated in an investigation into unlawful employment practices.

F. Complaint Procedures

If you believe that you have been discriminated against, you may file a charge with the U.S. Equal Employment Opportunity Commission (EEOC) either in person or by mail within 180 days of the alleged discrimination. After the charge is filed, the EEOC may attempt to resolve the matter through mediation or it may issue a “right to sue letter” which allows you to file a lawsuit against the employer directly in court. You must file with the EEOC and receive a right-to-sue letter before a court will hear your case. ( http://www.eeoc.gov/charge/overview_charge_filing.html )

You may file your lawsuit in any court of record in this state having jurisdiction over your employer. If you win the lawsuit, the court may award the plaintiff back pay, court costs, reasonable attorneys' fees, and grant various forms of relief, including:

• Permanent or temporary injunction

• Temporary restraining order

• Other order including but not limited to hiring, reinstatement, or upgrading of employees

• Admission or restoration of complainant to union membership

• Admission or participation in a guidance program, apprenticeship training program, on-the-job program, or other occupational or retraining program,

• Utilization of training related criteria in the admission of individuals to such training programs and job related criteria for employment.

II. FEDERAL LAW

A. The Americans with Disabilities Act

Title I of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by employers that employ 15 or more employees in hiring and all terms and conditions of employment. (42 U.S.C. § 1211(5)(A).) Title I does not apply to the federal government. (42 U.S.C. § 1211(5)(B).)

The ADA prohibits segregating, limiting or classifying any job applicant or employee because of a disability in a manner adversely affecting the individual's status or opportunities. (42 U.S.C. § 12112 (a) & (b).) Discrimination can include failing to make a reasonable accommodation for an individual's physical or mental impairments, or using employment tests and standards that tend to screen out persons with disabilities, unless such tests or standards are shown to be job-related or consistent with business necessity. (42 U.S.C. §§ 12112 and 12113.)

The ADA prohibits discrimination or retaliation against anyone who has opposed acts or practices unlawful under the ADA, has asserted a claim under the ADA, or has assisted in the assertion of such a claim by acting as a witness or aiding in the investigation of ADA violations. (42 U.S.C. § 12203).

1. Definition of Disability

The ADA protects “qualified persons” with a disability. The definition of “disability” under the ADA includes both physical and mental impairments that substantially limit one or more major life activities, employers may consider the effect of any mitigating measures.

For purposes of the ADA's employment protections, employees or applicants currently engaged in the illegal use of drugs are specifically excluded. (42 U.S.C. § 12114). Additionally, the definition of disability excludes homosexuality and bisexuality, transvestism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders, compulsive gambling, kleptomania, or pyromania. (42 U.S.C. § 12211.)