OAC is an independent nonprofit organization that provides legal advocacy services for people with disabilities anywhere in Oregon. OAC is designated under federal law as the protection and advocacy system for Oregon, but it is not a government agency. OAC has attorneys and advocates who assist people with disabilities.
This pamphlet contains general information about legal issues and legal rights and is not a substitute for legal advice. For specific information about how these laws affect you, contact OAC or your attorney. Sources of legal assistance are suggested in this pamphlet.
This pamphlet includes citations to Oregon Revised Statutes (ORS), the United States Code (USC) and the code of Federal Regulations (CFR). These laws and rules are available at the law library in each county.
Assistive Technology (AT) is equipment or devices that make it easier for someone who has a disability to maintain or increase functioning in a major life activity (such as working, learning, walking, speaking, etc.). It includes services that help someone choose and learn to use the devices best for them. Some examples in the context of employment are:
If you are an individual with a disability, a prospective employer may have to provide AT needed to allow you to have an equal opportunity to apply for the job. For example, an employer might need to provide an assistive listening device during the interview if you are hard of hearing. However, you should weigh the benefits of seeking AT at the hiring stage against the risk of disclosing your disability-it is possible that disclosure will lead the employer to discriminate yet you may not be able to prove it.
Once hired, an employer may have to provide AT needed for you to perform the essential functions of the job. For example, you may continue to need listening devices to perform your job. Equipment or a workstation may need to be modified physically so that you can use it.
Also, once hired, you may be entitled to AT needed for you to receive equal benefits and privileges of the job. For example, even if you are deaf but do not use the phone as part of your job, you may need access to a TTY during breaks if hearing employees have the privilege of using company phones for personal use. You may need adapted handles on the washroom sink, or a visual smoke alarm. Or if your blindness prevents reading standard print, you may need to receive the personnel manual on audio type or in some other alternate format.
An individual with a disability is someone who has, has a record of having, or is regarded by others as having a mental or physical impairment which substantially limits one or more major life activities (such as walking, hearing, learning or working). Furthermore, in the context of employment, it means someone who is "qualified" to perform the essential functions of the job with or without reasonable accommodations for the disability. Thus, the person must meet the legitimate skill, experience, education or other requirement of the job.
Several federal statutes provide protection from discrimination on the basis of disability in employment: The Americans with Disabilities Act (ADA) covers private employment as well as state and local government employment. Section 504 of the Rehabilitation Act covers entities receiving federal financial assistance.
Oregon statues also provide protection.
These laws can be found at:
ADA: 42 USC §12101 et seq
29 CFR Part 1630 (Title I)
28 CFR Part 35 (Title II)
Rehabilitation Act: 29 USC §793, 794 and 794a. Regulations vary by Federal Agency providing the financial assistance
ORS 659.400 to 659.460
Under the ADA, only employers with 15 or more employees are covered; under Oregon's employment laws, only employers with 6 or more employees are covered. However, if the employer is federal, state or local government entity, it is covered regardless of size by the Rehabilitation Act and ADA Title II respectively.
Private clubs and religious organizations are exempt from many of these laws, so if they are the employer you should seek legal advice as to whether they are covered.
An employer does not have to provide accommodations such as AT if it does not know of the disability and need for accommodation; thus, it is the applicant or employee's responsibility to inform the employer and seek accommodation.
The AT must be needed, not just helpful, in order to impose any obligation on the employer to provide it. If there are ways to perform essential job functions without AT, AT will not be required as a reasonable accommodation.
An employer does not have to provide the accommodation if it would impose an "undue hardship" on the operation of the business. Undue hardship means that there would be significant difficulty or expense in light of factors such as the nature and cost of the accommodation in relation to the size, nature, financial resources and structure of the business.
Also, accommodations are not required if, even with them, an employee would pose a "direct threat" to the health and safety of others.
Employers must pay the full cost of AT needed by applicants or employees, unless one of the limits explained above applies. The costs cannot be charged to the individual with the disability, such as through a payroll deduction. In many situations, the employer may be eligible for tax credits to offset some of these costs. However, if the full cost of AT would be legitimately an "undue hardship", the employer could be required to pay the amount that is not an undue burden and the employee could attempt to pay the balance.
If there is AT which would be helpful at work, but is not needed, the individual with the disability will need to explore alternate sources of funding. Possibilities include vocational rehabilitation funds (for which you can apply to the state VR agencies). Social Security PASS plans, or charitable foundations.
You do not need to give extensive information about your disability or sign a release giving the employer full access to your medical records. However, you do need to provide basic information and may be asked to produce a letter from a professional verifying the disability and how it substantially limits a major life activity.
You should ask in your letter for a written response by a certain date. If you are dissatisfied with the response, or get no response, the next step could be to file an internal grievance with your employer or, if you are unionized, with your union.
You may propose that a mediator be used to assist you and the employer in resolving the dispute, but mediation cannot be required.
Be sure to keep copies of your correspondence with the employer. Also, keep notes of all conversations you have the employer about your disability and demands for accommodations.
The law protects you from retaliation by the employer for asserting your rights under the disability discrimination laws. Retaliation, such as failure to hire, harassment, demotion or termination, is a separate violation of these laws.
If an employer refuses to provide AT which you believe is legally required, you can consider taking formal legal action to enforce your rights. You can file a complaint with the federal Equal Employment Opportunity Commission (EEOC); though its regional office serving Oregon:
EEOC Region, 901 First Ave., Suite 400, Seattle, WA 98104-1061.
206-220-6883; 206-553-1362 (TTY)
or Oregon's Bureau of Labor and Industries (BOLI):
Portland Civil Rights, State Office Building, 800 NE Oregon Street #32, Portland, OR 97232. 503-731-4075; 503-731-4106 (TTY)
Eugene, State Office Building, 165 E. 7th #220, Eugene, OR 97401. 541-686-7623
To protect your rights, you need to file with EEOC or BOLI within 300 days of the alleged discrimination. This is a required step before you can file a private lawsuit in court.
Under certain circumstances, remedies could include hiring, front pay, reinstatement, back pay, orders to provide AT, and compensatory and punitive damages.
If the employer is a state or local government entity, you also need to file a Tort Claim Notice with the public body within 180 days of the alleged discrimination. If the employer is the state of Oregon, mail your notice to: Director, Department of Administrative Services, 155 Cottage Street NE, Salem, OR 97310. If the employer is a public body other than the state (e.g. a county or city) your notice must be sent to the administrative office of the public body, to any member of the governing body of the public body, or to the attorney for the public body. Keep a copy of your notice. Your tort claim notice only protects your right to sue. You must still file your lawsuit within applicable time limitations. Contact an attorney about the time limitations that apply to your case. For further information for ORS 30.260 to 30.300
If you are a member of a union, you may have additional rights to pursue and should check with your union representative.