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What is Disability Discrimination in the Workplace?

Disability discrimination occurs when an employer makes an adverse employment decision based on an employee's disability rather than his or her skills, qualifications, or abilities. Although disability discrimination is illegal, some employers continue to treat disabled workers unfairly, refusing to hire them or treating them harshly on the job.

The disability discrimination lawyers at Gerstman Schwartz LLP believe that all employees should be treated with the dignity and respect they deserve. Our team will use their courtroom experience, legal knowledge and perseverance to defend the rights of workers facing disability discrimination because of their actual or perceived disability. If you have faced disability discrimination in the workplace because of your disability, contact our New York disability discrimination attorneys as soon as possible to schedule a Free Consultation.

What is the Americans With Disabilities Act (ADA)?

The Americans with Disabilities Act, which resembles New York State's Executive Law is a wide-ranging civil rights law that prohibits employers from discriminating against "qualified individuals with disabilities". It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.

In order to be protected by the ADA, you must:

  • Have a disability. According to the ADA, an individual is considered to have a disability if he or she "has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment." Some examples of major life activities are hearing, speaking, seeing, walking, performing manual tasks, breathing, working, caring for oneself, and learning. Temporary and non-chronic conditions such as a broken leg are not covered by the ADA. However, the ADA would cover an individual with a record of a serious impairment, such as an individual who has recovered from cancer.
  • Be otherwise qualified. A "qualified individual with a disability" is a worker who can perform the essential functions of an employment position with or without a reasonable accommodation. If there is no reasonable accommodation that would permit an individual with a disability to perform the basic functions of a job, then the employer may legally choose to deny offering the position.
Does New York City Provide Protection for Victims Of Disability Discrimination?

The New York City provides certain protections and advantages that are not available under the federal ADA:

  • The definition of "disability": Under NYC law, a greater number of physical and mental impairments qualify as disabilities. Whereas federal law only covers fairly permanent impairments, NYC law covers temporary illnesses causing a disability as well.
  • Burden of proof: Under NYC law, the employer has the burden of showing that the employee's disabilities prevented him or her from completing the basic functions of the job, with or without reasonable accommodations. In contrast, under federal law the claimant has the burden of proving that he or she could have performed the basic functions of the job.
  • Disability Benefits: New York State requires employers to provide temporary disability benefits for individuals who cannot perform their job because of an off-the-job injury or illness. These benefits come in the form of 50 percent of the claimant's wages (but no more than $170 a week) for up to 26 weeks.

New York City laws may play a crucial role in determining whether an employer illegally discriminated against a disabled employee. Because of this, a victim of disability discrimination in NYC should seek a lawyer well-versed in matters of city, state, and federal law. The attorneys at Gerstman Schwartz LLP are experienced in all aspects of employment law, and are ready to maximize your chances of success in court.

Who is Covered By Disability Discrimination Laws?

Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, the Rehabilitation Act or the New York State Executive Law, treats a qualified applicant or employee with a disability unfavorably because of their disability. In addition to these laws, The New York City Human Rights Law, which is one of the most comprehensive civil rights laws in the nation, also prohibits discrimination in employment, based not only on a person's actual disability, but also a person's perceived disability, (in addition to a person's race, color, creed, age, national origin, alienage or citizenship status, gender, sexual orientation, marital status, and partnership status).

Discrimination laws in New York prohibits disability-based harassment, and states that employers may be liable for workers' harassing and/or discriminatory behavior if the harasser is a supervisor, or if the employer knows (or should have known) that the harassment was occurring.

What is a "Reasonable Accommodation"?

A "reasonable accommodation" is an adjustment of workplace procedures or a provision of devices that allow a disabled worker to perform a job. For example, the employer could allow the worker to take extra breaks, or provide objects such as wheelchair ramps.

Who is Protected by Disability Discrimination Laws?

The Laws protections apply to job application procedures, hiring, advancement, termination, job training, and any other terms, conditions, and privileges of employment. Discrimination may include, among other things:

  • Limiting or classifying a job applicant or employee in an adverse way
  • Denying employment opportunities to disabled individuals who can perform the essential elements of a job
  • Not making reasonable accommodations for disabled employees
  • Failing to advance employees with disabilities in the business
  • Speaking to a disabled employee in a demeaning manner
  • Using derogatory terms liked crippled or restarted while referring to a disabled employee

After making a job offer, an employers can require the employee to take a medical examinations only if all applicants (regardless of disability) are required to take the same examination and the examination is treated as a confidential medical record.

What are Examples of Disability Discrimination?

Each disability discrimination case is different, and needs to be examined based on its particular context and circumstances. Nevertheless, here are some examples of situations that would constitute unlawful disability discrimination:

  • Your coworker makes fun of your disability; though your supervisors know about the situation, they do nothing to stop it.
  • When you interview for a position, the hiring manager sees that you have a disability and hires a less qualified employee without a disability.
  • Afterwards, you are asked to take a medical exam, despite the fact that other applicants were not asked to do the same thing.
  • You ask your company for an accessible bathroom; they refuses to provide one, even though they have enough resources to do so.
  • You are an excellent worker, but are passed over for a promotion in favor of a less qualified individual who does not have a disability.
  • A supervisor gives the worst projects to an employee with a disability.

If you have faced situations similar to the ones above, or believe that you have been illegally discriminated against in any other way, contact Gerstman Schwartz LLP immediately to schedule your free consultation with a disability discrimination lawyer.

There are limits to how far an employer must go to accommodate disabled workers. Accommodations must be "reasonable" - that is, they may not unreasonably disrupt business or pose an undue financial burden on the employer. The concept of "reasonable" is a subjective one, and depends on factors such as the employer's financial condition and size. If, for example, an employer is under particular financial strain, it may claim that an accommodation poses an undue hardship to the business, even if that accommodation is objectively reasonable. Generally speaking, larger employers are expected to provide better accommodation than smaller ones.

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