ADA / FMLA / Discrimination

Americans with Disabilities Act of 1990 (ADA)


(42 U.S.C. – 12010, et seq.) In general, the Act (with subsequent amendments) prohibits discrimination based upon disability and ensures equal opportunity for persons with disabilities.  The Act covers a wide range of applications, including employment, government services, public accommodations, business facilities and transportation.


Title I of the ADA relates to employment and is the most pertinent part of the Act as it relates to our legal practice, the interests of our clients, and to rail labor generally.

Q:  What does the term “disability” mean in the ADA?

A:  The Act defines it as a physical impairment that substantially limits one or more of the major life activities of the individual.  Furthermore, if your employer regards you as being disabled, even if you are not, you are protected under the Act.

Q:  What are “major life activities”?

A:  They are actions which the average person can perform with little or no difficulty.  They include (among others) caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, sitting, standing, lifting, reaching and working.  If an individual is unable to, or significantly restricted in, performing any one of these actions, the law considers the individual as having a disability.

Q:  What employer actions are considered as “discrimination”?

A:  As a general rule, the ADA prohibits an employer from discriminating against an employee because of a disability, as it relates to hiring, advancement, discharge, compensation, training, and any other conditions or privileges of employment.  Furthermore, and perhaps more significantly, the Act requires the employer of a qualified, but disabled employee, to provide a “reasonable accommodation” in the workplace, in order to prevent discrimination in the elements of employment noted here.

Q:  What does “reasonable accommodation” mean?

A:  Making existing facilities accessible to and usable by those with disabilities, and/or altering job duties or locations with means and actions that are reasonable.  This can include job restructuring, modified work schedules, modification of tools and equipment, and other similar changes to help a disabled person perform their job.  These actions are required in the workplace, unless the employer can prove that doing so would place an “undue hardship” on the employer, which the Act defines, generally, as an accommodation which would require significant difficulty or expense.


As with other similar laws, the ADA provides you and your co-workers with certain defined rights (and responsibilities) which your employer cannot simply ignore because they don’t like them, or don’t want to provide you with the protections which the law provides to you.  If you have developed a disability as defined by the Act, whether the cause is work related or not, you have the right to remain on your job with all the privileges and opportunities that your employment provides.


You need to inform yourself of your rights in order to fully protect yourself in your employment relationship with your employer.  We encourage you to contact our office if you have any questions or concerns about legal rights related to your employment.  If you are interested in additional information on the Americans With Disabilities Act of 1990, we suggest you contact the official website, at

The Family and Medical Leave Act of 1993 (FMLA)

This federal law provides for eligible employees to take up to twelve (12) weeks of unpaid, job-protected leave in a twelve (12) month period for certain specified family and medical reasons:

For the birth and care of a newborn child of the employee;
For the placement with the employee of a son or daughter for adoption or foster care;
To care for an immediate family member (spouse, child or parent) with a serious medical condition;
When the employee is unable to work because of a serious medical condition.
In addition to providing for leave, the Act contains job protection provisions, which apply during and after the employee has been absent from work for approved FMLA leave.  In general, the law provides that upon return from FMLA leave, the employee must be restored to their original job, or to an equivalent job, with equivalent pay, benefits and other conditions of employment.  There are several limited exceptions to this requirement.  Certain highly-paid employees deemed to be “key” to the employer’s business, may not be eligible for reinstatement to their original job.  Also, an employee subject to furlough or other change in job status during the time of the FMLA leave, may likewise be ineligible for reinstatement to their original job.

As general information, we have noted several definitions which will help you gain a better understanding of your eligibility for FMLA leave, along with the rights and responsibilities of the employer and employee in complying with the Act.  The critical issue in dealing with this law, as with others providing for employee rights and benefits, is the need for you to have a thorough understanding of your rights and responsibilities.  You should contact Thornton Mostul Herchensohn, or the appropriate governmental agency, to ensure you understand what the law provides in your individual situation.  In our experience, your employer will be unsympathetic if you fail to comply with the rules that govern your ability to obtain FMLA leave, which may result in your being unable to obtain the leave you need or, more seriously, jeopardize your employment relationship.  In addition to the federal law, many states have laws related to family and medical leave, and it may be appropriate for you to seek leave under the provisions of those laws, or to use leave of absence provisions already in effect in your workplace.


All public agency employers (Federal, State and Municipal) are covered, as well as private-sector employers (such as railroads) who employ 50 or more employees.


In general, to be eligible for FMLA benefits, an employee must have worked for a covered employer for at least twelve (12) months, and have worked at least 1,250 hours (or equivalent) during the previous twelve (12) months.  Where practicable, the Act requires that you give 30-days advance notice of your need for leave under FMLA.


The law provides for unpaid leave only.  In certain circumstances, the employee may elect, or the employer may require the employee, to use accrued vacation, sick leave or other compensated time in connection with all or part of the FMLA leave period.  This provision is affected by certain collective bargaining agreements and other employment arrangements.  You should consult Thornton Mostul Herchensohn and/or your labor organization for clarification of employee and employer rights in this regard.


In general, this refers to your spouse, your child (under 18) and your parents.  Children over 18 years old may also be included if they have certain disabilities.


In most cases, you are not required to provide your employer with your medical records.  Your employer may require you to provide a medical certification, confirming that a serious medical condition exists, if you have taken FMLA leave based on a serious medical condition affecting you or an immediate family member.


In general, the Act requires that your employer continue to provide you with the same health insurance benefits for which you were eligible prior to your FMLA leave.  However, you will ordinarily be required to continue any payments or contributions towards providing such insurance during your leave.  Arrangements for these payments, if applicable, must ordinarily be accomplished prior to the beginning of your FMLA leave.


If you have any questions about the Family and Medical Leave Act, or other laws which affect your employment relationship, you are encouraged to contact the attorneys and staff at Thornton Mostul Herchensohn.  We will provide you with information and advice regarding your individual situation, without cost.  If you want more information about FMLA, we encourage you to contact the Wage and Hour Division of the U.S. Department of Labor, which is responsible for enforcement and complaint investigation of FMLA matters.  You can reach their website at or call your local office of the U. S. Department of Labor.

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on race, religion, gender and national origin (42 U.S.C. § 2000e-2). 

Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin. An employer cannot discriminate against a person because of his interracial association with another, such as by an interracial marriage.

There is a complex body of law that protects the right to fair employment. 
The general rule is that most employees have “at will” jobs, meaning the employer can terminate your employment at any time, without explanation or justification. 
Many unions have formed collective bargaining agreements with the employer.  These agreements typically provide some form of job protection.  The enforcement of this protection often lies with the union and your right to bring a claim against your employer through counsel may be limited.  Even if there is no union, an employer may provide some degree of job security through an employment contract, manual or other document.
Even if the job is an “at will” job, Federal and State discrimination laws prohibit certain discriminatory conduct.  Discrimination based on race, sex, religion or national origin is prohibited by law.  If you can prove your employer took away employment rights based on illegal discrimination you may seek protection under the law.  
An employer can be held liable for discrimination even if the employee is not actually fired.   The law states that an employer may  not allow a hostile work environment.  A racial or religious minority has the right to work in an environment free of demeaning and derogatory racial or religious epithets or insults.  An employee is entitled to work in an environment free of sexual comment, pressure or abuse. 
For these types of claims, typically the first step is to file a complaint with the State human rights commission or the Federal Equal Employment Opportunity Commission (EEOC).   As a general rule the complaint MUST BE FILED WITHIN SIX MONTHS OF THE OFFENSIVE CONDUCT OR ACTION.  The EEOC must first provide a “right to sue” letter before you can bring a lawsuit.
A separate and important body of law applies to so-called handicap discrimination.  There are both Federal and state laws on this subject, and while they both may deal with the same conduct, the remedies and rights can vary considerably from state to state.
The general rule is that an employer may not prohibit an employee from working in a particular job because that person has a real or perceived physical or mental disability.   Under this law, employers do not have to accept an employee in a job that the employee clearly is unable to perform.  However, if the employee’s disability can be accommodated through reasonable changes to working conditions, the employer make those reasonable accommodations.  What is reasonable may be a matter of dispute.
Discrimination claims typically start with a request for accommodation by the employee.  If the request is reasonable and the employer fails to honor the request, the employee must then make a complaint to Federal or state EEOC.  THIS COMPLAINT MUST BE MADE WITHIN SIX MONTHS OF THE FAILURE TO ACCOMMODATE.   As in other discrimination cases, the EEOC must first provide a right to sue letter before you can proceed with a claim in court.
Successful discrimination cases usually result in an award for economic and non-economic damages, plus attorney fees and costs. In some cases punitive damages are possible. Depending on the jurisdiction and the particular law that applies, there may be limits to the total amounts of damages that can be recovered.