A food service worker, blind in one eye, says he was ridiculed by managers for being a “Cyclops.” Another, who suffers from cerebral palsy and a rare condition that makes his nose abnormally large, was routinely mocked, his voice and mannerisms mimicked by higher-ups. These and several others claim evidence their high-profile New York City employer made sure they worked in less desirable, “back of the house” positions due to their disabilities, to ensure customers wouldn’t see them. Another says he was transferred to another assignment when he complained of his co-workers’ poor treatment.
These kinds of actions in the workplace are not only cruel – they’re illegal.
Disability discrimination is barred under the Americans with Disabilities Act (ADA), the 2008 ADA Amendment Act (which strengthened protections for disabled workers after years of U.S. Supreme Court decisions that narrowed them significantly), the Rehabilitation Act, and the New York State Human Rights Law, codified in N.Y. Exec. L. 290, which has definitions of disability that are even more inclusive.
The ADA bars the harassment of applicants or employees due to disability, past disability or perceived disability. An example of harassment would include offensive remarks pertaining to one’s condition.
A “disability,” as it is recognized under federal law, is a physical or mental impairment that substantially limits one or more of a person’s major life activities, such as hearing, walking, sitting, seeing, breathing, standing, sleeping, lifting, learning or caring for yourself. It also includes having some record of impairment or even just the perception of an impairment by co-workers or supervisors.
The Rehabilitation Act is similar to ADA and ADAAA, but specifically bars employers and organizations from denying or excluding people with disabilities from an equal opportunity to receive program services and benefits.
While New York law also in many ways mirrors the ADA, but it’s terms are broader. For example, under the state law, people don’t have to show the medical impairment substantially limits one or more major life activities. Secondly, while both state and federal law recognize addiction to drugs and/or alcohol as a disability, federal law excludes recognition of current illegal drug use as a “disability,” while state laws do not. Where federal law is applicable only to businesses with more than 15 employees, as well as employment agencies, labor organizations and join labor-management committees, state law, state law makes these provisions applicable to all public employers and private employers with more than four workers.
These laws, in addition to barring discrimination, also require companies to make reasonable accommodations for disabled workers, so long as doing so would not result in an undue hardship for the employer.
The definition of “reasonable” and “undue” is often disputed in these cases, but some examples of how employers can adhere to this portion of the law include:
- Making sure there is equal opportunity and access during the application process;
- Ensuring the existing facilities are physically accessible;
- Restructuring jobs;
- Modifying work schedules to meet the needs of the disabled worker;
- Providing equipment that could help ease the burden on the worker;
- Offer qualified interpreters and readers.
It’s worth noting that employers can’t legally ask a potential or current employee directly if he or she has a disability. They can, however, inquire about the ability to perform major functions of the job. It’s at this point disabled workers can mention any reasonable accommodations they may need.
Determining a worker’s eligibility for a disability discrimination requires careful analysis. Sometimes, claims are best raised in state court, while others may have more success at the federal level. It’s imperative no matter the situation to discuss options with an experienced New York City employment law attorney.
The Law Offices of Ira S. Newman provides employment litigation representation in New York City, Long Island, Great Neck and throughout the area. Call 516-487-7375 or send us an e-mail.
American with Disabilities Act (ADA), New York Department of Labor
More Blog Entries:
New York City Prevailing Wage Lawsuits & Third-Party Breach of Contract, Feb. 18, 2014, New York City Disability Discrimination Lawyer Blog