Today, disabled individuals make significant contributions in many workplaces. Some businesses avoid hiring disabled workers, however, because of inaccurate perceptions about their productivity or the costs associated with providing accommodations. Nonetheless, acting on these concerns by not hiring disabled workers may constitute disability discrimination.
The employment law practice at Lipsky Lowe is dedicated to protecting the rights of disabled workers in the greater New York area. Our employment law attorneys are well-versed in the applicable city, state and federal laws protecting disabled individuals from discrimination and harassment in the workplace. We also work with a wide range of business clients to ensure that their policies and procedures adhere to applicable employment laws concerning disabled workers. When you consult us, you can rest assured that we will be the strength in your corner.
How do federal, state and city laws protect disabled workers?
The Americans with Disabilities Act (ADA) is a federal law that was enacted in 1990 to protect disabled individuals from discrimination in a number of settings, including the workplace. The ADA specifically protects a qualified worker or job applicant who has the necessary education, skills, and experience and is capable of performing the essential duties of the job, with or without accommodation.
In short, the law prohibits employers from considering a person’s disability when making employment decisions, including hiring, firing, paying, promoting, training, assigning jobs, changing benefits or any other condition of employment. The ADA also requires employers to make reasonable accommodations for disabled workers, such as providing special equipment, modifying work schedules or job assignments.
Although the ADA only applies to businesses with 15 or more employees, the New York State and New York City human rights laws prohibit disability discrimination in workplaces with 4 or more employees, and the owner counts towards satisfying that 4-employee threshold.
What is a disability?
Under the ADA, a disability is defined as a physical or mental impairment that limits an individual’s ability to perform daily life activities. This includes walking, seeing, hearing, speaking, sitting, standing, lifting, performing manual tasks, learning, breathing, or taking care of oneself. The disability must be considered longstanding or permanent — temporary ailments are not protected disabilities.
In addition, the ADA Amendments Act (ADAAA) of 2008 added major bodily functions to the list of major life activities. These include the proper function of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
The ADA and the laws in New York protect employees who currently have a disability as well as those with a history of impairment. This means that an employer cannot discriminate against an employee because of his or her previous disability (e.g. cancer that is in remission). Moreover, it is unlawful to discriminate against an employee who an employer perceives to be disabled, whether or not the employee is actually disabled.
The New York City Human Rights Law more broadly defines what constitutes a disability, as it does not require showing the disability has limited our daily activities. It only requires that the disability constitutes an impairment.
What is a reasonable accommodation?
The applicable laws require an employer to make an adjustment or modification to a position or workplace that allows a disabled employee to perform his or her job. Reasonable accommodations include:
- A transfer
- A flexible work schedule
- A leave from work to obtain medical treatment
- Removing non-essential duties from the job requirements
- Making the workplace accessible
Providing a reader or interpreter for a worker who is blind or hearing impaired
It is important to note that disability accommodations do not need to be provided if the employer can show that doing so would cause an undue hardship — the accommodation would be too costly, extensive or disruptive to the business.
Disability Discrimination in the Workplace
Disability discrimination in an employment setting occurs when a disabled worker is terminated, disciplined, passed over for a promotion, or denied reasonable accommodation. In other words, anything that adversely affects the terms and conditions of employment of a disabled worker may be considered discrimination.
Disability discrimination can also occur during the application process when an employer refuses to hire a disabled candidate or asks an applicant about his or disability as a condition of making a job offer.
Disability discrimination also occurs when the employer perceives the employee to have a disability but does not know if the employee actually has one. For example, an employer who fires an employee because the employer believes the employee has an eating disorder constitutes disability discrimination.
It is worth noting that harassment of an employee or applicant who has a disability is also unlawful. Harassment occurs when offensive remarks are made about a person’s disability, and the conduct is so frequent or pervasive that it creates a hostile work environment.
Contact Our NYC Disability Discrimination Attorney
At Lipsky Lowe, we are committed to eliminating discrimination from the workplace in all its forms. We have a well-earned reputation for being dedicated advocates of the disabled. If you were fired, demoted, denied accommodation or discriminated in any other way due to your impairment, we can help. We will take the time to learn about your circumstances and explore all of your options. Our legal team has a proven record of success in administrative proceedings before the Equal Employment Opportunity Commission and the New York Division of Human Rights. While we prefer to resolve discrimination claims through negotiated settlements, we are fully prepared to litigate any claim in court. Please contact our office today to set up a consultation.