Chapter § 3-4 § 1630.4. Discrimination Prohibited

JurisdictionUnited States

3-4 § 1630.4. Discrimination Prohibited

(a) In general—

(1) It is unlawful for a covered entity to discriminate on the basis of disability against a qualified individual in regard to:

(i) Recruitment, advertising, and job application procedures;
(ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
(iii) Rates of pay or any other form of compensation and changes in compensation;
(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;
(v) Leaves of absence, sick leave, or any other leave;
(vi) Fringe benefits available by virtue of employment, whether or not administered by the covered entity;
(vii) Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;
(viii) Activities sponsored by a covered entity, including social and recreational programs; and
(ix) Any other term, condition, or privilege of employment.

(2) The term discrimination includes, but is not limited to, the acts described in §§ 1630.4 through 1630.13 of this part.

(b) Claims of no disability. Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.

A point to keep in mind is that a plaintiff can assert a claim for a hostile environment based upon a disability. But it is a high standard to meet as a plaintiff, and must be both subjectively hostile as well as objectively hostile. A single statement, unless truly severe, will be insufficient to establish such a claim.

Harris v. Dallas Cty. Hosp. Dist., No. 3:14-CV-3663-D, 2016 U.S. Dist. LEXIS 65739 (N.D. Tex. May 19, 2016).

3-4:1 Commentary

The Fifth Circuit uses two different formulations in determining whether an employee was discriminated against because of a disability. The first is embodied in McCollum v. Puckett Mach Co., 628 F. App'x 225, 229-30 (5th Cir. 2015) (per curiam), in which the court held that a plaintiff must show that the plaintiff is (1) disabled; (2) qualified for the job; (3) subjected to an adverse employment action on account of the disability; and (4) replaced by or treated less...

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