Contrary to popular belief, migraines are much more than just bad headaches. This guide is designed to help patients fight migraine workplace discrimination.
Contrary to popular belief, migraines are much more than just bad headaches. Health specialists consider migraines a serious medical condition involving an extremely incapacitating collection of neurological symptoms – from intense pain, dizziness, nausea and vomiting to extreme light, sound, and smell sensitivity; and visual disturbances (auras).
What is worse for Americans experiencing migraines is the condition can be triggered by normal, everyday occurrences, such as a co-worker’s perfume, fluorescent lights, or stress, and the pain can be severe enough to require bed rest in a dark, quiet place. That is why studies find that when left untreated, more than 90 percent of people experiencing a migraine are not able to function and may be forced to miss work. Compounding the problem, 63 percent of those experiencing migraines will have an episode one or more times a month, significantly limiting their ability to lead a normal life, maintain relationships, and sustain a sense of well-being.
This simple fact is migraines are a serious women’s health problem. Today, it is estimated that 38 million Americans experience migraines and 73 percent of them – or 28 million people –are women. Due to hormonal changes, which can induce migraines, many women experience a greater frequency of episodes, and migraines may be more difficult to treat during menstruation and pregnancy. In fact, approximately one in four women will experience a migraine during their lifetime.
One of the serious challenges for women experiencing migraines is discrimination in the workplace. Due to a pervasive awareness gap about the disabling impact migraines have on individuals, in the work environment, employers may perceive women who suffer from as weak, lazy, lacking self-discipline and exaggerating their symptoms. Contributing to these misperceptions are common beliefs among Americans that their own mild and tolerable headaches are migraines, when they are not, and the fact that the debilitating pain of migraines is unseen and hard to measure.
Because these misperceptions are common, employers may believe that women with migraines are inconsiderate, unable to plan because they have to miss a meeting or interrupt their work temporarily to cope when a migraine occurs, and/or use migraines as an excuse to avoid their responsibilities. The result is working women with migraines often feel guilty about struggling to fulfil their obligations and often experience depression as a result. Women with migraines are 41 percent more likely to be depressed than those without a history of migraines.
However, misperceptions are not an excuse for employers to discriminate against working women who live with migraines. That is the reason for this brochure – so you will know their rights and what to do if they an employer acts in a discriminatory way.
Under, the federal Americans with Disabilities Act (ADA), it is illegal for an employer with
15 or more employees to discriminate against any worker with a disability – which the ADA defines as having a physical or mental impairment that substantially limits one or more of an individual’s major life activities. Under the ADA’s definition, “major life activities” include being able to care for yourself and difficulties reading, concentrating, thinking, communicating, performing manual tasks, seeing, and working.
For any person who has a physical or mental disability, the ADA prohibits employers from discriminating in any way in all employment activities, including recruitment, hiring, training, job assignments, promotions, pay, benefits, leave, and firing. The law also requires employers covered under the ADA to provide a “reasonable accommodation” to employees, such as allowing people with migraines to take time off from work for treatment and to cope with a migraine attack.
Not all migraines are classified as a disability. Under the ADA, migraines may be considered a disability if they substantially limit your ability to complete one or more major life activity. This determination is made on a case-by-case basis and requires an individualized assessment.
For your migraines to quality as a disability under the ACA, you will need to show that your migraines are serious enough to limit your ability to perform your job or specific job tasks given your work environment. For example, consider whether the lighting, certain smells, or noises in your office trigger your migraines.
You will also need to demonstrate to your employer that you are a “qualified individual” with a disability. This means (1) you are qualified for the position (i.e., meet your employer’s requirements for the job, such as education, experience, skills, or licensure); and (2) you are able to perform the essential functions (i.e., the fundamental duties of the position) “with or without reasonable accommodations.” In other words, you are not protected under the ADA if you do not qualify for and cannot complete the basic requirements of your job without accommodations.
Whether you are applying for a job or are now an employee, your employer must provide you with reasonable accommodations if you are a qualified individual with a disability and your employer is covered under the ADA. A reasonable accommodation is defined as a modification or adjustment to your job or work environment that allows you to perform your job functions and provides you with equal employment opportunities.
There are a number of ways that employers can make workplace accommodations for women with migraines. These include:
Yes. If you are applying for a job or are an existing employee, it is your responsibility to inform your employer if you need an accommodation. Begin with an informal discussion with your supervisor or a member of the human resources department, if your office has such a department. It is also important to follow up with a request in writing that documents your functional limitations. If you do not provide your employer with this documentation, you may not be entitled to the accommodation.
There are three circumstances under which an employer covered by the ADA can terminate your employment. These situations are:
Under the ADA, your employer is not required to provide you with an accommodation in two situations: 1) if the employer can demonstrate that the accommodation would be an undue hardship for the company (for example, having to put in expensive equipment); and 2) if the employer can demonstrate that your disability poses a direct threat to the health and safety of individuals in the workplace. Both situations are unlikely to apply to women with migraines.
The ADA defines as undue hardship for employers as a situation that would be “unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.” An employer’s size, financial resources, or the nature of the operations may be factors in determining whether an accommodation represents an undue hardship.
Employers may wrongly believe that workplace accommodations are too expensive, which is often untrue for women with migraines. In fact, 57 percent of accommodations for migraines do not cost anything, and the remaining changes typically cost $500 or less.
There are situations when a worker’s disability could result in a direct threat to the health and safety of others in the workplace. For example, if a job requires you to drive a motor vehicle, but your migraines are accompanied with an aura that impairs your vision, making it hard for you to drive safely, your migraines may be considered a direct threat to others’ safety. In that case, your employer is permitted to disallow your request for accommodation and terminate your employment.
If your accommodation request is denied, you should first ask your employer for the reason it was denied. Perhaps the medical information you provided did not support your need for an accommodation or the employer felt the accommodation you requested was unreasonable.
If the request is denied for unknown reasons, the next step is to go up the chain of command in your company and be sure to carefully document your interactions. However, if you are not successful working within your organization’s chain of command, there are other steps you can take. The first is to file a complaint, referred to as a “discrimination charge,” with the U.S. Equal Employment Opportunity Commission (EEOC) or with your state’s enforcement agency. If the EEOC dismisses your charge, you then have the option of filing a lawsuit against your employer.
The way to file a discrimination charge with the EEOC is to find the EEOC field office in your area and then contact the local EEOC office in person, by mail or by calling the office’s telephone number. If you begin the filing process by phone, an EEOC field officer will follow up with you to file the formal charge. If you file in person, bring any supporting documentation for your case to the EEOC field office. You can also bring anyone you want to the meeting, especially if you need language assistance and know someone who can help.
Once you file a discrimination charge, the EEOA will review your letter and if more information is needed, an agency staffer will contact you to gather that information or you may be sent a follow-up questionnaire. At a later date, the EEOC will contact you and may put all the information you sent on an official EEOC charge form and ask you to sign it. Your signature allows the EEOC to begin its investigation.
1. What Do I Need To Include in My EEOC Charge?
When you file an EEOC charge by mail, you should include the following information:
2. How Long Do I Have To File My EEOC Charge?
The period to file your charge is generally 180 days from the time the discrimination took place.
3. How Soon Will I Hear Back from the EEOC About My Charge?
You should receive a copy of your charge along with a charge number at the time the charge is filed. Your charge number will be sent if you mailed the complaint. Within 10 days, the EEOC should also send the employer a notice of the charge.
4. Are There Other Agencies I Should Contact?
States and local governments also have agencies – called Fair Employment Practices Agencies (FEPAs) – that enforce laws to prohibit employment discrimination. The EEOC and the FEPAs have agreements in place to prevent processing duplicate charges. You may wish to contact your local FEPA to determine whether you should file your complaint with the FEPA or with the EEOC.
If, after the EEOC conducts its investigation, the agency decides to dismiss your charge, you will receive a notice of the right to sue. Once you receive this document, you can file a lawsuit against your employer for discrimination under the ADA. You will have 90 days from the date you receive the notice to begin the lawsuit process.
Note: This information was produced by the Alliance for the Adoption of Innovations in Medicine (Aimed Alliance).
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