Disability rights advocates fought for years to ensure equal treatment of those with physical and mental impairments. Since the passage of the Americans with Disabilities Act (ADA) in 1990, discrimination laws have protected the disabled in a variety of settings, including employment. Today, federal, state and local laws prohibit discrimination. These laws are complicated, but an experienced disability rights attorney can help employers and employees understand their rights and obligations.
What Is Disability Discrimination?
Disability discrimination laws prohibit the adverse or inferior treatment of employees based on their disability. Illegal discriminatory conduct can be intentional or consist of a seemingly neutral business policy that has a disparate impact on those with a disability.
Employers cannot treat disabled employees differently during the hiring or firing process, or when considering promotions or other terms and conditions of employment. They can also be held liable for retaliating against employees for reporting or threatening to report discrimination.
Importantly, employers also have an obligation to provide a “reasonable accommodation” to disabled employees. A failure to do so would constitute discrimination.
What Laws Prohibit Disability Discrimination?
Federal, state and local laws protect disabled workers. These laws vary with regard to which employers are covered, the definition of disability and the process for obtaining relief when discrimination occurs.
The ADA protects individuals with medical conditions from employment discrimination, as described further below. However, the law only applies to companies with 15 or more employees. The Equal Employment Opportunity Commission (EEOC) is charged with enforcing the ADA. Employee complaints must be filed with the EEOC and the proper procedures followed before a party can sue in court.
New York Law
Employment laws in New York State and New York City also prohibit disability discrimination, including harassment and retaliation, but apply to employers with 4 or more employees. The New York State Division of Human Rights (NYSDHR) handles enforcement of state workplace discrimination laws. The New York City Human Rights Commission’s (NYSHRC) Law Enforcement Bureau (LEB) addresses claims in the city. However, under both laws, employees have the option of filing a complaint with the agency or going directly to court.
New York City law varies in that it only requires that the disability constitute an impairment. State law states that the impairment must limit a major life activity.
When Does a Disability Qualify Under the ADA?
A person may qualify under the ADA if he or she has a condition that seriously limits a major life activity. The condition may be a physical or mental impairment. Major life activities include seeing, hearing, eating, sleeping, walking, standing or concentrating. In addition, this encompasses major bodily functions such as those involving the immune, digestive, respiratory, circulatory, neurological or other systems in the body. Mental illness and substance abuse also qualify as disabilities. A disability must be long-standing or permanent. Discrimination based on a previous disability or a perceived disability may also included under the law.
However, the ADA only protects employees who are capable of performing the major duties of their job with or without any additional help (or accommodations). In order to make this determination, the EEOC will look to various factors, including written job descriptions and the amount of time spent on the task at issue.
What Constitutes a Reasonable Accommodation under the ADA?
Employers have an obligation to provide a reasonable accommodation to allow a disabled employee to perform his or her job. However, an employee does not have a right to his or her preferred accommodation. A reasonable accommodation may include adjusting work schedules, changing job duties, providing or altering equipment and making the workplace more accessible to the disabled.
Employers are not required to provide a reasonable accommodation if it would cause an undue hardship. This may include changes that are too expensive, disruptive, dangerous or impossible to implement (e.g. due to physical office space constraints, etc.). The EEOC will consider the cost and financial resources of the employer, the nature of the business and the employer’s size.
Importantly, the employer has a duty to initiate a conversation if it has learned either directly or indirectly that an employee requires an accommodation. Employers should engage in a Cooperative Dialogue with the employee regarding possible accommodations.
Employers have a defense if the employee cannot perform the essential functions of the job, even with the reasonable accommodation. However, the burden of proof is on the employer.
How Can Employees Prove Discrimination?
As noted previously, discrimination can be intentional mistreatment or the result of a policy that has a disparate impact on those with disabilities. Where a disabled employee has been intentionally treated differently, discrimination may be difficult to prove since direct evidence is seldom available. However, circumstantial evidence can be used. Typically, employees can point to similarly situated employees without a disability that received more favorable treatment than the disabled employee. Alternatively, the disabled employee can show he or she was passed over for a raise or promotion which then went to a less-qualified, non-disabled employee.
For disparate impact, the employee must demonstrate that the policy or practice has the practical effect of discriminating against the disabled. However, the employer has a defense that the policy is job-related and consistent with business necessity.
Best practice is for both parties to consult an attorney as soon as a claim arises to discuss what evidence is needed to present the strongest case.
Discrimination Against Job Applicants
Discrimination laws also apply to job applicants. As a result, employers may not engage in discriminatory conduct during the application and interviewing process. This may include asking applicants about their medical history or requiring a medical exam.
Retaliation by an employer against an employee who makes a claim or asserts a right protected by discrimination laws is prohibited. Examples of potential retaliation include dismissal, demotion, disciplinary action, cut in work hours or pay, reassignment to a less desired work location and other actions penalizing a worker. It is important for employers to document the reasons for any adverse actions taken against an employee who has made a complaint and discuss the matter with an attorney.
Harassing disabled employees in the workplace also constitutes discrimination. This includes conduct such as offensive comments or jokes; humiliating, abusive or threatening remarks; name-calling; and inappropriate physical contact. However, the harassment must be so severe that it creates a hostile work environment or results in an adverse employment decision.
What Is the Statute of Limitations under the ADA?
Discrimination claims can be filed with the EEOC within 300 days of the last discriminatory act. Employees cannot sue in court without first going to the EEOC and obtaining a “Notice of Right to Sue.” Thereafter, a litigant can bring an action in federal or state court within 90 days of the date the notice was received.
As with all types of discrimination, employers should consult an attorney regarding instituting written workplace anti-discrimination policies, employee training and clear investigation and complaint procedures to help prevent and address any claims. Employees who believe they may be the victim of discrimination should speak to an attorney about the best option for enforcing their rights.
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