Disability-based discrimination at work

At any stage of the job search process – from interviewing for a job to after you have gotten the job –there are some things that employers cannot do.   One of those things is that it is illegal for employers to discriminate against a person because the individual has a disability.

People with disabilities are protected by several federal and state laws. These laws prohibit employers from discriminating against individuals with disabilities in many parts of employment:

  • Delaware Discrimination in Employment Act[1]
  • Title I of the Persons with Disabilities Employment Protection Act (PWDEPA)[2]
  • Delaware Equal Accommodations Law[3]
  • Title 1 of the Americans with Disabilities Act of 1990[4]

For general information, we suggest you read “The ADA: Your Employment Rights as an Individual with a Disability,” at http://www.eeoc.gov/facts/ada18.html


Interviewing or applying for a job

There are some things that employers cannot ask you, either on the job application or during the interview. For example:

  • They cannot ask you if you have a disability.
  • They also cannot ask you about the nature or severity of your disability.
  • However, they can ask you:
  • If you can perform the job duties, with or without reasonable accommodation.
  • To describe or demonstrate how you would perform the job duties, with or without reasonable accommodation.

Medical testing before or after offer

Employers cannot require you to take a medical examination before they offer you a job. After you receive a job offer, the employer may require you to pass a medical examination.

However, the employer must require all entering employees for that job category to take the exam, not just you. For example, some jobs require medical clearance due to the nature of the work.  If the medical exam reveals information about your disability, the employer cannot reject you for the job on that basis, as long as you can perform the essential job functions with accommodation. The employer’s reason for rejection must be job-related and necessary for the conduct of the business.

After you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer’s business.

Your employer may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers’ compensation laws to the agencies that administer such laws.

The results of all medical examinations must be kept confidential, and maintained in separate medical files.

The employer may require you to pay for the cost of the medical examination or the cost of providing records that the employer requests, as a condition of employment. Delaware does not have any laws prohibiting the employer from asking you to pay for these costs.


Reasonable accommodations

In order to get or keep a job, you must be qualified for the job. This means that you must have the right experience, education, and/or skills to perform the duties of the job.  However, employers are required by law to make adjustments or modifications to accommodate a qualified applicant or employee’s disability if it would not impose significant difficulty or expense to the employer. These adjustments are known as “reasonable accommodations.”

Examples of reasonable accommodations are:

  • A deaf applicant may need a sign language interpreter during the job interview.
  • An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
  • A blind employee may need someone to read information posted on a bulletin board.
  • An employee with cancer may need leave to have radiation or chemotherapy treatments.

In most cases, it is the individual employee or applicant’s responsibility to request a reasonable accommodation. Your family member may request reasonable accommodation on your behalf. Your employer may request documentation of your disability. This may occur especially when the disability is not obvious, such as a learning disability.  The employer is not entitled to have more information than is necessary to assess your need for an accommodation.

For an example of a Request for Reasonable Accommodation, see “Sample: Request for Reasonable Accommodation Letter,” at the end of this guide!

If your employer denies your request for reasonable accommodation, you may file a complaint for discrimination. See the section, below, on “Filing a Complaint.”


Filing a complaint.

If you think that you have been discriminated against because of your disability or for any other illegal reason, you may file a complaint. There are short  time limits as to when you must file your complaint. It’s best to file your complaint as soon as possible if you suspect discrimination.

Any individual who believes that his or her employment rights have been violated under the Delaware Discrimination in Employment Act or the Persons with Disabilities Employment Protections Act may file a charge of discrimination with the Delaware Department of Labor (DDOL).

  • A charge must be filed with DDOL within 120 days from the date of the alleged violation, in order to protect the charging party’s rights to file an action in state court.
  • The filing deadline is up to 300 days under federal law. A charge filed between 121 and 300 days will be forwarded to the Equal Employment Opportunity Commission for processing.
  • To protect legal rights, it is always best to contact DDOL as soon as possible when discrimination is suspected.
  • A charge may be filed in person at the DDOL office in Milford or Wilmington.

Complaints about discrimination in public accommodations under the Delaware Equal Accommodations Law, that are not related to employment, are handled by the Division of Human Relations. You may call them at (302) 577-5050 or visit their website at http://statehumanrelations.delaware.gov/services/discrimination.shtml


Other Legal Rights and Protections

You may face other questions in your job that are not related to discrimination.  There are many rights and protections of interest. For example, employees have a right to inspect their personnel file upon request.  The employee can take notes of what is in the file.  An employee can ask for a correction, but if the employer and employee cannot agree, then the employee has the right to submit a statement to be placed in the personnel file.[5]

Other areas of employment:

  • Wages, Minimum Wage, hours, overtime[6]
  • Workplace safety and health[7]
  • Workers’ Compensation
  • Unemployment Compensation

If you have questions on these topics, or are not sure which organization can answer your questions, a good place to start will be the U.S. Department of Labor and the Delaware Department of Labor.  The U.S. Department of Labor has many helpful fact sheets on its website (www.dol.gov). For guidance on how to address your specific situation, the Delaware Department of Labor may point you toward the right agency or resources. Call (302) 761-8085, or visit www.delawareworks.com.

Employers Who Must Try to Hire IndividualsWith Disabilities

Some employers, including federal agencies and companies with federal contracts over a certain amount, must try to hire people with disabilities.  Therefore, it might benefit you to consider employment with such an employer.

Selective Service

You should know that if you are male, you must register for the Selective Service System within 30 days of your 18th birthday, even if you have a disability.  Registration is required to apply for federal employment, some job training programs, and federal student loans.

[1] 19 Del. C. § 710 et seq.

[2] 19 Del. C. § 720 et seq.  PWDEPA covers employers with 15 or more employees, including state and local governments.  It also applies to employment agencies and to labor organizations.

[3] 6 Del. C. § 4500 et seq.

[4] 42 U.S.C. §§ 12111-12117.  Title I of the ADA only applies to employers with 15 or more employees.

[5] 19 Del. C. § 730 et seq.

[6] Fair Labor Standards Act, 29 U.S. Code Chapter 8

[7] Occupational Health and Safety Act, 29 U.S.C. § 651 et seq.