“Knowing our rights is our best weapon”

Stephanie Ortoleva is the Disability Coordinator of the Department of State and the Executive Director of the United States Agency for International Development’s (USAID) Disability Advisory Committee. She has worked in various government positions related to disability rights, and has also served as a Justice Department prosecutor in cases related to labor, transportation, and education, among other issues. On this occasion, however, I spoke with her not about her government work, but instead to learn from her experience as a lawyer. Ortoleva has extensive experience in lawsuits related to discrimination and civil rights policy.

“Finding a job is not the only employment challenge that people with disabilities face,” Ortoleva says. “Sometimes employment can be just as difficult as unemployment.” However, she stresses that “we shouldn’t become discouraged or think that it is therefore better not to work. On the contrary, what is best is to become informed and aware of the strong laws and institutions in our country that protect us, to know about them and use them when we need to.”

Ortoleva says that discrimination in the job market can begin early on, during personnel selection and the contracting process: “If an employer interrogates you about your disability or forces you to complete a medical exam while not requesting the same of other job applicants, we have proof of discrimination. The Americans with Disabilities Act (ADA) is very clear in this respect. The ADA prohibits all discrimination based on disability.1  It mandates reasonable accommodations on the job, which can mean, among other things, modifying the office environment (adding a ramp, adapting the bathroom), modifying work plans, or being flexible with the schedule so that the disabled employee can fulfill his or her duties. If an employer refuses to make reasonable accommodations that don’t impose excessive difficulties on the employer, we are then being faced with a case of discrimination. The ADA, as with Title VII of the 1964 Civil Rights Act, applies to private employers, local and state governments, and educational institutions that have 15 or more employees.”2

Ortoleva also says that workplace harassment, including sexual harassment, can affect people with disabilities. “A person can be harassed because of his or her age, religion, race, skin color, country of origin, gender, and disability,” she says. “The important thing to understand is that people with disabilities may be victims of harassment caused by factors unrelated to their disabilities, like their nationality, or caused by multiple factors, like when they discriminate against you because you are both disabled and a woman or Latino or elderly. On the Department of Justice website you can find various examples of discrimination.”3

Ortoleva explains several key concepts: “Harassment is a form of discrimination. Normally we think of the harasser as a supervisor, but it can be a coworker or even somebody who doesn’t work for the same company, but is related to the job. The most important thing to determine whether there is harassment in the employment situation is to see whether the actions taking place are creating a hostile environment for you and if they interfere, directly or indirectly, with your job performance. Acts of harassment can include jokes about your nationality or skin color, sexually explicit conversations, verbal or physical abuse, etc. Of course, any undesired sexual advance or request of sexual favors is also a form of harassment.”

In addition, Ortoleva says, workplace discrimination based on skin color, country of origin, age, or any of the other factors mentioned earlier may result in an employee being paid less than another employee with the same job skills or being denied a promotion. A certain person or group of people may unfairly receive the best and most prestigious opportunities for job promotion, which amounts to favoritism. “It might interest readers of Proyecto Visión to know that speaking English with an accent or slowly can be a cause of discrimination,” Ortoleva says. “An employer can not make a decision that negatively impacts their employee based on these criteria, unless these very criteria interfere in the employee’s job performance. The same is true with the sometimes controversial ‘English only’ rules in the workplace. By law, these rules can only be enforced if they promote a more secure or efficient environment in the workplace.”

But faced with such complex rules, what is the best course of action in a specific case of harassment or discrimination? Ortoleva advises, “The victim of workplace discrimination should not try to solve these situations alone. Depending on the situation and the problem, one should get professional help to go to court.”4

If you think you have been discriminated against, Ortoleva suggests that you should write down everything that happens, including the places, times, events, and people who were present, as well as any witnesses. “This can be a big help when it comes time to formally present your case, if you need to do so. Keep a copy of any written evidence, like email messages containing offensive language, in a secure place in your home. If the harasser leaves offensive items on your desk, take a picture of them,” she says. Include a record of times you have commented to people about these acts or about your feelings of being discriminated against, and write down how you are feeling both physically and mentally. In addition, she says, “You should talk about what is going on with the higher-ups in your workplace, or with the people in charge of handling this type of issue.”

Ortoleva acknowledges the difficulties of fighting discrimination and harassment, but says, “There are many sources of support. The Equal Employment Opportunity Commission (EEOC) and State Human Rights Commissions handle complaints for free.5  Non-profit organizations that provide legal help usually don’t handle this type of case, but they can provide good information. The important thing is to be aware of our rights: knowing them is our best weapon.”

Notes:

1. The Justice Department website about employment rights for people with disabilities is located at http://www.usdoj.gov/crt/emp/index.php

2. The legal framework for equal employment opportunity is explained in plain language on the EEOC website at http://www.eeoc.gov/abouteeo/overview_laws.html

3. Samples of Workplace Discrimination Cases at the Department of Justice website at http://www.usdoj.gov/crt/emp/papers.html

4. Resources for finding a good employment lawyer can be found at http://www.nela.org/NELA/index.cfm?event=showPage&pg=findalawyer

5. The State Human Rights Commissions do not have a unified website, but they exist in almost every state. There is a list of EEOC offices at http://www.eeoc.gov/offices.html.

printer friendly format