Disability Discrimination

Disability discrimination occurs when an employee or job applicant is treated less favorably because he or she has a disability. Disability discrimination also occurs when an employer treats an employee or job applicant less favorably because he or she has a history of a disability, is regarded as having a disability by the employer, or has a family member with a disability.

What laws govern workplace discrimination based on disability? The federal statute that governs disability discrimination is the Americans with Disabilities Act (ADA). The New York Human Right Law also prohibits disability discrimination in the workplace. In addition, Sections 501 and 505 of the Rehabilitation Act of 1973 proscribe discrimination based on disability with respect to federal employment.

When is an employee considered an individual with a disability? The ADA prohibits employment discrimination against qualified individuals with a disability. Generally, an employee or job applicant is a qualified individual with a disability if:

  • He or she has a physical or mental impairment that substantially limits a major life activity, such as walking, talking, seeing, hearing, or learning;
  • He or she has a history of a disability (such as cancer that is in remission).
  • A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Congress enacted the ADA Amendments Act of 2008 to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability under the statute. The Amendments Act states that its purpose is “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Congress found that persons with many types of impairments—including epilepsy, diabetes, HIV infection, cancer, multiple sclerosis, intellectual disabilities (formerly called mental retardation), major depression, and bipolar disorder—had been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.” However, Congress thought that individuals with these and other impairments should be covered and revised the ADA accordingly.

Disabled employees must generally be provided with “reasonable accommodation.” Under the law, employers are required to provide “reasonable accommodation” to employees and job applicants who have a disability, except where providing such accommodation would result in “undue hardship” for the employer.

In what ways can an employer discriminate against an employee? Anti-discrimination laws apply to all types of work situations and any conduct that adversely impacts terms and conditions of employment. Actionable discrimination occurs when the employer’s action impacts any aspect of employment. That includes hiring, firing, pay, job assignments, promotions, demotions, transfers, benefits, layoffs, and any other term or condition of employment. It is also unlawful to harass an employee based on their membership in a protected class even if they are not fired, demoted, etc. However, to be actionable harassment must be so severe or pervasive that it creates a hostile work environment.

What remedies are available to victims of disability discrimination? The purpose of the ADA and other laws prohibiting disability discrimination is to put the victim of discrimination in the same position that he or she would have been if the discrimination had never occurred. Depending on the circumstances, employees who can prove that they were subjected to unlawful disability discrimination may be entitled to one or more of the following remedies: reinstatement, backpay, front pay, compensatory damages, punitive damages, emotional damages, liquidated damages, injunctive relief, and attorney’s fees and costs of litigation.

Do employees have to pursue their claims through administrative agencies before filing in court? Typically yes, employees must file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or the New York State Division of Human Rights (“NYSDHR”) before filing suit in court. When the EEOC or NYSDHR is finished investigating the charge, they will issue findings and either pursue the matter on the charging party’s behalf or issue a Notice of Right to Sue letter giving the charging party permission to file a lawsuit.

Blitman and King has disability discrimination attorneys on staff, who provide cutting edge, practical advice for clients in the Albany, Buffalo, Manhattan, Long Island, Rochester and Syracuse NY areas.