Self-Advocacy in Employment Toolkit

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The National Federation of the Blind believes in the capacity of blind people and seeks to build more equal opportunities in employment for blind people across the country. Please use this toolkit as a launch pad to learn about your rights, other employment resources, and actions you can take to self-advocate. Many agencies and nonprofits, including the National Federation of the Blind, have created exceptional resources regarding the rights of employees and job applicants with disabilities and best practices for self-advocacy. Much of this toolkit refers to federal law, though many states have enacted similar or stronger legislation.

The Problem

Federal and state laws protect the rights of blind employees and applicants throughout all aspects of employment, and yet blind people remain at significantly low rates of employment; in 2016, over 70 percent of working-age adults reporting significant vision loss were not employed full time.[i] Blind people have been prevented from applying for jobs, advancing their careers, pursuing new careers, and participating in employment benefits equal to those enjoyed by our sighted peers.

Understanding Your Rights

Federal and State Protections: Relevant Laws

Employees and job applicants with disabilities are protected against discrimination by multiple laws:

  • Under Title I of the Americans with Disabilities Act, all state and local government employers, and private employers with fifteen or more employees, cannot discriminate against employees or applicants with disabilities.[ii]
  • The Rehabilitation Act of 1973 prohibits discrimination in employment in three areas: Sections 501, 503, and 504.[iii]
  • Section 501 requires federal agencies to participate in affirmative action to hire, place, and promote individuals with disabilities and prohibits federal agencies from discriminating against employees and applicants with disabilities.
  • Section 503 requires contractors operating under contracts of $10,000 or more and their subcontractors to take affirmative action to hire, place, and promote individuals with dis­abilities unless the contract requirement is waived by the president or Department of Labor.
  • Section 504 requires recipients of federal funds to provide equal access for individuals with disabilities in employment and in their programs and activities.

Other federal laws, including the Workforce Innovation and Opportunity Act and the Vietnam Veterans Readjustment Assistance Act of 1974, and many state laws provide additional protections for employees and applicants with disabilities. To learn more about specific state laws, you can contact your state’s Human Rights Commission or Governor's Committee on People with Disabilities.[iv]

Understanding the EEOC

The Equal Employment Opportunity Commission (EEOC) enforces federal nondiscrimination employment law across all aspects of employment—hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any condition of employment. The EEOC protects individuals from discrimination due to disability, race, religion, sex, national origin, and genetic information. The EEOC’s oversight includes enforcing Title I of the ADA and Section 501 of the Rehabilitation Act, and most employers with fifteen or more employees fall under the EEOC’s purview.[v]

Most resources cited to in this toolkit are available through the EEOC’s website. As the agency that promulgated Title I regulations and has oversight on enforcement, we encourage you to become familiar with the EEOC’s website and wealth of resources; they should be considered direct sources anytime you are trying to answer a question about disability discrimination in employment.

Disability Discrimination in the Workplace

Per the EEOC, when an employer treats an employee or applicant harmfully because of their disability, the employer is engaging in disability discrimination. This can be in the form of accommodation denial, harassment, retaliation, or other disparate action.[vi]

Reasonable Accommodations and Employer Responsibilities

Federal law and the EEOC require an employer to provide reasonable accommodations to an employee or job applicant with disabilities who cannot fully participate in or perform all aspects of a job. Reasonable accommodations are defined by the EEOC as changes that assist a person with disabilities with applying for, performing the duties of, or participating in the benefits and privileges of a job. Reasonable accommodations may include, but are not limited to:

Requesting Accommodations

Employees with disabilities often disclose their disability and need for accommodations when barriers occur. Though employees are not required to disclose or request accommodations, doing so can protect against corrective action or assertions that you are not qualified for a particular job or task.

The EEOC has compiled guidance regarding requesting workplace accommodations here: Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, and the NFB encourages you to review the guidance and scenarios. Note that though EEOC regulations do not require that accommodation requests be in writing, the NFB recommends, as best practice, documenting your request in writing and keeping a dated copy of your request in your records.

Undue Hardship

Sometimes employers will refuse to provide accommodations because they believe the accommodations will be too expensive or difficult to implement and maintain. The EEOC has established guidance for employers regarding undue hardship, which includes evaluating an accommodation request within the broader scope of an employer’s size, general (not department) budget, and other factors.[viii] The US Supreme Court has said that the employer bears the burden of proving that a reasonable accommodation would cause undue hardship.[ix]

Interactive Dialogue

After receiving a request for a reasonable accommodation, an employer must engage in interactive dialogue with the employee or applicant regarding the request. An employer may ask questions about the specific workplace barriers and ask for documentation regarding an individual’s disability, as it relates to the accommodation request, to help evaluate the request.[x] Employees with disabilities should take care to participate in this dialog process respectfully and professionally. Because interactive dialogue is a part of the EEOC’s guidance regarding reasonable accommodations, an employee, applicant, or employer that refuses to participate in the interactive process could damage their claim or defense, should a charge be filed with the EEOC.

Job Applicants

Under federal law, employers must provide applicants with disabilities the reasonable accommodations they need to be considered for a job opening.[xi] This may include providing written materials in Braille or large print, for example. The EEOC stresses that an employer cannot decline an applicant because they require accommodations to apply for or perform a job.[xii]

Consider the following example from the EEOC:

John is blind and applies for a job as a customer service representative. John could perform this job with assistive technology, such as a program that reads information on the screen. If the company wishes to have John demonstrate his ability to use the computer, it must provide appropriate assistive technology as a reasonable accommodation.[xiii]

During the application process, an employer may not ask about your disability or require you to participate in a medical examination prior to offering you a job.[xiv] An employer may, however, ask about your ability to perform specific duties regardless of any disability and can make a job offer contingent upon a medical examination, but a job offer may not be withdrawn because of disability unless the employer can demonstrate that the disability prevents an employer from performing essential functions with or without accommodations.[xv]

Essential Functions

The core purpose of a position and/or its basic job duties are considered essential functions. Sometimes employers may argue that all possible job duties should be considered essential functions, but this is not in line with the EEOC’s guidance. The EEOC has created specific guidance to help employers determine whether a job duty can be considered essential:

  • “whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.”[xvi]

Blind job applicants regularly encounter job postings that require an applicant to have a driver’s license for positions in which driving is not an essential function—a civil engineer who inspects pipes, for example. The EEOC has published a letter regarding drivers’ licenses and essential job functions, available at EEOC Information Discussion Letter Regarding ADA/Driver’s License/Essential Functions/Reasonable Accommodation, and applicants can refer to this letter when advocating to the employer.

What to Do if You Encounter Employment Discrimination

If your accommodation request is ignored or denied, or if you encounter any other disability-related discrimination as an employee or applicant with a disability, there are many ways you can self-advocate.

Non-complaint Strategies

Regardless of how you decide to self-advocate, the NFB recommends always keeping thorough and organized records of your experience should you need to refer to them in the future. Depending on your workplace, comfort level, and personal experience, you could choose to contest discrimination by speaking with your employer’s human resources or diversity office. You may also choose to meet with your direct supervisor about your experience. Sometimes addressing barriers in a non-confrontational and informal manner can help resolve the barriers quickly. If you choose this route, keep in mind that employees and applicants who encounter disability discrimination have very strict timelines during which they can file a complaint outside of their workplace.

Filing a Charge of Discrimination with the EEOC or Your State Office

Unlike other parts of the ADA and Rehabilitation Act, individuals who wish to file a federal lawsuit regarding employment discrimination must first exhaust the EEOC’s complaint process.

If you’ve been discriminated against by an employer and choose to file a charge, you must do so within a specified timeframe. This is generally 180 days from the date the discrimination occurred, unless you live in a state that provides for a 300-day statute of limitations. If you’re a federal employee, you have a much smaller window of time: only 45 days. If the discrimination is ongoing, the statute of limitations begins at the most recent date the discrimination occurred.[xvii]

Unless you are a federal employee, to file an employment discrimination charge you could file with the EEOC online, by mail, or in person. You could also file through your state’s Fair Employment Practices Agency (FEPAs). These state agencies coordinate with the EEOC and, if you file a charge with either the EEOC or your state agency, the charge may be co-filed with the other agency, so there’s no need for you to file with both.[xviii] The EEOC’s guide, How to File a Charge of Employment Discrimination, provides additional information on how to file.

Though the EEOC does not accept discrimination charges by telephone, you can call the EEOC to discuss your experience with a representative, which can be helpful as you think through your next steps.

When you file your charge, you’ll want to be sure that your narrative is clear, concise, and objective. If you have supporting documentation, such as emails from a supervisor, you can include those with your filing. In general, if your charge concerns insufficient accommodations, you should include 1) the accommodation you requested, 2) why you need it, and 3) how not having this accommodation has affected your ability to perform essential functions of the job.

You don’t have to retain an attorney to file a discrimination charge with the EEOC, but working with an attorney can help you craft a better complaint. If you are searching for an attorney, you can contact the NFB’s legal program. Though we may not be able to assist directly, the NFB is part of a broader Disability Rights Bar Association and we can connect members with disability rights attorneys in their states who, generally for a fee, may be able to provide support.

After you’ve filed your charge, you can check on the status via the EEOC’s web portal. At any point you can amend to your complaint if, for example, you locate additional supporting documents or if another act of discrimination occurs.

Retaliation

Your right to participate in the EEOC process is protected by federal law, and employers cannot retaliate against individuals with disabilities who file a charge of discrimination or otherwise advocate or participate in the EEOC process. Examples of retaliation can include negative evaluations, reprimands, demotions, termination, reassignments, and more. If employees who have filed discrimination complaints are retaliated against, they can amend their complaint to include the employer’s retaliatory action.[xix]

Mediation

After you file a charge, the EEOC may offer mediation. The EEOC’s mediation is free and conducted by trained mediators. Mediation is a useful option because it can be a faster way to resolve a complaint, compared to waiting for the EEOC to complete its investigation. If the parties reach an agreement during mediation, a contract can be entered into; and this written, signed document is enforceable in court. If an agreement is not reached during mediation, your charge will proceed to the EEOC’s investigation phase.[xx]

Notice of Right to Sue

If you are not interested in mediation and your goal is to file a federal lawsuit regarding the discrimination you experienced, you can request that the EEOC send you a right-to-sue letter, which authorizes you to file in federal court. You can make this request 180 days after filing your charge of discrimination. The EEOC may also issue you a right-to-sue letter as the result of its investigation. After issuing your right-to-sue letter, the EEOC will close its investigation into your complaint. Note that once you receive a right-to-sue letter you have only 90 days to file in federal court.[xxi]

Sometimes, after investigating a complaint, the EEOC will litigate a matter if there is the possibility of creating systemic change for employees with disabilities. But this action is rare; the EEOC prosecutes only a small percentage of the complaints it receives. A good example of the EEOC jointly litigating a matter with a blind employee is Sorling v. Dignity Health.

Federal Employees

Federal employees and applicants with disabilities are also protected from discrimination, but their process for filing an employment discrimination complaint differs from other protected employees. Importantly, federal employees have only a forty-five day window in which to file a charge of discrimination. And, rather than filing a charge with the EEOC or their state, they must contact their federal agency’s Equal Employment Opportunity (EEO) program.[xxii]

After contacting their EEO, the federal employee or applicant may be invited to participate in either EEO counseling, mediation, or another alternative dispute resolution program. If counseling or mediation are not successful, the individual can then file a formal discrimination complaint with their agency’s EEO. Complaints must be filed within only fifteen days of receiving filing instructions from an EEO counselor.[xxiii]

After receiving a complaint, the EEO program will investigate and then issue a notice allowing the employee or applicant to either request a decision from the agency or request a hearing before an EEOC Administrative Judge. If the employee or applicant disagrees with the final order, they may appeal to the EEOC or file suit in federal court.

In Summary

Your right to employment is important. The National Federation of the Blind encourages you to familiarize yourself with your federal protections and the actions you can take to prevent and resolve access barriers and disability discrimination. Also, you should access the network of blind professionals who are members of the Federation to learn more about individual experiences and receive guidance on employment. Connect with your local affiliate and chapters, or there may be a division with your career interest. Please visit the resources gathered below and let us know of other resources that have been helpful to you.

National Federation of the Blind Members’ Stories

Key National Federation of the Blind Employment Litigation and Settlements

The National Federation of the Blind's extensive legal program has helped advance disability rights case law under the Americans with Disabilities Act and the Rehabilitation Act of 1973, creating more equitable workplaces, classrooms, and communities for blind Americans. Please visit our legal webpage to review key employment litigation and settlements.

Contact Us

For additional information about our legal program or to discuss any blindness-related legal concerns and questions, please submit the Legal Program: Contact Us Form.

Resources

NFB Resources

Federal Resources

Equal Employment Opportunity Commission

US Department of Labor

[i] “The number of non-institutionalized persons aged twenty-one to sixty-four years with a visual disability in the United States who were employed full-time/full-year in 2016 was 1,120,700 or 29.5%. Therefore, for working age adults reporting significant vision loss, over 70% are not employed full-time.” Retrieved from https://nfb.org/resources/blindness-statistics. See also Erickson, W., Lee, C., von Schrader, S. (2017). Disability Statistics from the American Community Survey (ACS). Ithaca, NY: Cornell University Yang-Tan Institute (YTI). Retrieved from Cornell University Disability Statistics website: www.disabilitystatistics.org.

[ix] US Airways, Inc. v. Barnett, 535 U.S., 122 S. Ct. 1516, 1523 (2002).

[xii] Ibid.

[xiii] Ibid.

[xv] Ibid.

[xvi] Ibid.

[xxiii] Ibid.