Disability Discrimination in Your Small Business Text Size:

There are numerous laws, both state and federal, that prohibit employment discrimination based on disability. At the federal level, the most commonly known is the Americans with Disabilities Act (ADA). But there are several others, such as the:

• Rehabilitation Act
• Workforce Investment Act
• Vietnam Era Veterans' Readjustment Assistance Act

Although all of these laws are intended to enable persons with disabilities to find and keep a job, they do not apply to all employers. Whether or not a law applies depends on several factors, such as whether employers are in the public or private sector, how many employees they have and whether they hold federal contracts or subcontracts.

Many states have disability-based anti-discrimination laws as well. If you have disabled employees, or might be considering hiring new employees, it's a good idea to know some things about these disability laws.

The Rehabilitation Act

The Rehabilitation Act authorizes funding for various disability-related purposes and activities, including state vocational rehabilitation ("VR") programs, independent living programs, training and research, and the work of the National Council on Disability (NCD).

It also prohibits disability-based discrimination by specific types of employers, such as the federal government. With respect to a small business, the Rehabilitation Act:

• Prohibits employment discrimination based on disability and requires affirmative action in the hiring, placement and advancement of people with disabilities by federal contractors or subcontractors who have federal contracts or subcontracts in excess of $10,000, and
• Prohibits employment discrimination based on disability by programs or in activities that receive federal financial assistance

If your small business has federal contracts or subcontracts that are for more than $10,000, or if your small business receives federal funding, then you must comply with the Rehabilitation Act.

The Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor's Employment Standards Administration enforces the Act's contract/subcontract provision. For discrimination by programs or in activities receiving federal financial assistance, the federal agency providing the assistance handles discrimination law enforcement.

An employee who thinks he or she was discriminated against in violation of the Act can file a complaint against you with the OFCCP. If it's found that you've violated the Rehabilitation Act, the employee might recover:

• Back pay, which is the amount of wages and benefits the employee would have earned if there had been no discrimination
• Compensatory damages for things like emotional distress
• The employee's court costs and attorney's fees

The Rehabilitation Act and the Americans with Disabilities Act are substantially similar: for instance, you can't fire, refuse to hire, demote, or refuse to promote someone with a disability who can do the job with or without a reasonable accommodation on the basis of his or her disability.

The Workforce Investment Act (WIA)

The Workforce Investment Act (WIA) provides workforce investment activities designed to help increase the employment, retention, and earnings of program participants. The goal of the WIA is to increase workers' occupational skills, so as to improve the quality of the workforce and reduce welfare dependency. Job training programs include Adult Employment and Training Activities, Youth Activities, and Job Corps.

Under WIA, it's unlawful to discriminate against individuals with disabilities who apply for, participate in, or are employees of any program or organization that receives federal financial assistance under WIA. Your business is subject to WIA if your small business receives federal financial assistance under WIA, or it is part of a WIA-financed program.

The U.S. Department of Labor's Civil Rights Center enforces the federal financial assistance provision of WIA, and an employee who thinks that his rights under WIA were violated can file a complaint against you with the Civil Rights Center.

The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA)

The Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) requires that employers with federal contracts or subcontracts of $25,000 or more provide equal opportunity and affirmative action for:

• Vietnam era veterans
• Special disabled veterans, who are veterans who either receive a certain level of disability compensation from the U.S. Department of Veterans Affairs, or were discharged or released from active duty because of a service-connected disability
• Veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized

If you're a contractor covered by VEVRAA, as part of affirmative action, you have to list with the local or state employment service all employment openings except for executive and top management jobs, jobs you expect to fill from within, and jobs lasting three days or less.

VEVRAA is enforced by the OFCCP.

Lawsuits under any of these laws are usually complicated. If an employee files a claim against you, it's probably in your best interests to contact an experienced business law attorney or a labor law attorney immediately.

Questions for Your Attorney

• If an employee files a claim against me under a disability-related discrimination law, how long will it usually take for the agency to resolve the matter?
• Are suits under the Rehabilitation Act, Workforce Investment Act, or the Vietnam Era Veterans' Readjustment Assistance Act common?
• How do I know if an employee or job applicant is a veteran? Should I and can I ask that during the interview or on my employment application?

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