Disability Discrimination

At the Gresham law office of Smith & Fjelstad, our attorneys fight for the rights of workers in Portland and East County, Oregon, to be free of employment discrimination based on real or perceived disabilities. Our lawyers have decades of trial experience and are ready to take on employers of any size in state or federal court to stop, prevent and remedy workplace discrimination.

Federal Level - Americans With Disabilities Act

More than 20 years after it was enacted, The Americans with Disabilities Act of 1990 (ADA) remains as probably the most sweeping and comprehensive anti-discrimination law since Title VII of the Civil Rights Act of 1964, which prohibited discrimination in housing and employment based on factors such as race, sex and religion. Despite its longevity, ADA issues continue to be litigated in the courts and fought by employers who refuse to make reasonable accommodations or comply with the law. Recent amendments to the law by Congress make it clear, however, that the ADA is to be read broadly and inclusively in favor of worker rights and protection.

Title I of the ADA outlaws discrimination in employment based on disability. Employers with 15 employees or more may not discriminate against a qualified individual with a disability, who is defined as a person who can perform the essential functions of the job with or without reasonable accommodation. This anti-discrimination prohibition covers every aspect of employment, including hiring, firing, transfers, and assignments. But questions can abound at every angle. What qualifies as an "essential function of the job?" What constitutes "reasonable accommodation?" The definition of disability itself is multi-faceted and contains many terms left open to interpretation. Despite extensive regulations and twenty years of amendments and court decisions, disability discrimination still exists, and employers still find ways to defend their decisions and challenge employee claims of discrimination.

State Level - Unlawful Discrimination Against Persons With Disabilities

Oregon's disability discrimination law (ORS 659A.103 - 659A.145) mirrors the ADA regarding employment discrimination in many respects. One major divergence is when the law applies. Oregon law covers employers with as few as six or more employees, compared to the 15-employee requirement of the ADA. Knowing which law applies and which is more beneficial to the client is key to knowing when, where, and how to file a complaint that best serves the aggrieved worker.

Investigations, Hearings, Civil Court Actions

Although the ADA gives employees the right to sue the employer in court, the worker generally must first file a claim with the Equal Employment Opportunity Commission (EEOC), which gets first crack at investigating the claim and bringing an enforcement action against the employer. If the EEOC declines to enforce or fails to investigate within the required time frame, the employee has the right to sue and seek money damages or other relief, such as reinstatement, modified work assignment, etc. If filing a state complaint with the Bureau of Labor & Industries (BOLI) Civil Rights Division, keep in mind that BOLI has its own timelines and procedures that must be followed.

Of course, we are experienced in litigating discrimination cases in the courts as well. Recently, our firm successfully represented the plaintiff in Indergard v. Georgia-Pacific Corporation in the Ninth Circuit Court of Appeals, a landmark case defining what constitutes a medical examination under the ADA, which is allowable only under certain circumstances.

Whether filing a complaint with an administrative agency or filing a lawsuit in civil court, our lawyers advocate forcefully and effectively on your behalf, righting the wrongs of past discrimination and ensuring that you can participate in the workplace to the fullest extent of your abilities and desire. If you have been discriminated against in the workplace based on a real or perceived disability, including a wrongful discharge, contact Smith & Fjelstad for a free consultation.