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How the Law Protects Disabled Workers Against Discrimination

By Douglas Lipsky

Disabled workers in New York and around the country are protected against discrimination by the Americans with Disabilities Act, as well as by state and local laws. Unfortunately, disabled individuals are frequently denied job opportunities or reasonable accommodations that might allow them to perform their job duties.

If you or a loved one has been subjected to disability discrimination, it takes an experienced employment lawyer to protect your rights. Let’s take a look at how the law protects you against disability discrimination in the workplace. 

What Is The Americans with Disabilities Act?

The Americans with Disabilities Act (ADA) is a federal law that prohibits covered employers from discriminating against qualified individuals when making employment decisions (e.g. hiring, compensating, promoting, terminating). A “covered employer” is one with 15 or more employees; a “qualified individual” is a person who is capable of performing the essential job duties. 

Defining Disability Discrimination

Under the ADA, there are two forms of discrimination: 

  • Disparate treatment
  • Failure to accommodate

Disparate Treatment

Disparate treatment occurs when an employee or job applicant is classified or treated in a way that adversely impacts his or her opportunities or status because of an actual or perceived disability. Disparate treatment occurs when an employer:

  • Refuses to hire a job candidate because of an actual or perceived disability
  • Denies a disabled employee the same opportunities (e.g. promotion) as non-disabled employees
  • Takes disciplinary action against a disabled employee for taking time off to treat a mental or physical impairment
  • Disciplines or terminates a disabled employee for requesting an accommodation

Discrimination based on disparate treatment also occurs when an employer perceives or regards an employee to be disabled or has an unfair bias against individuals with a particular physical or mental health condition.

Reasonable Accommodation

The ADA also requires employers to provide reasonable accommodations to disabled employees or job candidates that allow them to perform their essential job functions. Types of reasonable accommodations include:

  • Modifying the recruitment, interview, or hiring process
  • Reassigning or restructuring job duties
  • Providing time off for medical treatment
  • Providing necessary equipment (e.g. readers, interpreters
  • Making the workplace wheelchair accessible
  • Allowing remote work

However, an employer is not required to make an accommodation if it would cause an undue hardship, which means that the accommodation is too costly, extensive, or disruptive to the workplace. 

Disabled Employees in New York Have Stronger Legal Protections

The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) also prohibit disability discrimination. These laws provide greater legal protection against disability discrimination than the ADA by more broadly defining what constitutes being disabled. 

Under the ADA, an individual is considered “disabled” if he or she has a physical or mental impairment that substantially limits their ability to perform one or more major life activities,  such as seeing, hearing, walking, standing, lifting, bending, speaking, learning, reading, concentrating, thinking, communicating, and working.

By comparison, disability is more liberally construed under the NYSHRL as any physical, medical, mental, or psychological impairment or a record of such impairment, or a condition regarded by others as such an impairment. In short, this definition is much broader than the ADA because it covers temporary or transitory conditions and also includes specific protections for individuals with gender dysphoria.

Under the NYCHRL, disability is defined as simply any physical, medical, mental, or psychological impairment or a history or record of such impairment. Finally, the state and city laws carry greater consequences than the ADA for failing to engage in the interactive process for determining whether to provide a reasonable accommodation.

The Takeaway

Federal, state, and local laws provide disabled employees and job applicants with powerful legal recourse against discrimination. If you believe that you have been discriminated against based on an actual or perceived disability, talk to an employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.