Westchester County employment lawyer Claudia Pollak answers FAQs about disability discrimination in the workplace in New York.

Being disabled can impact individuals in several important ways, but this does not mean they are unable to work. Not only do disabled individuals have the right to earn a living, but they benefit society by being dependable and productive employees. Having a serious health condition or other disability should not put an individual at a disadvantage when it comes to hiring, pay, promotions or other terms and conditions of employment. Yet, disability discrimination in the workplace persists.

It is against federal and state law to refuse to hire an individual because of their disability, or to discriminate against them in the terms and conditions of employment, including salary, benefits, title, work schedule, and work assignments. Similarly, it is unlawful to harass an individual at the workplace because of a disability, such as subjecting a person to jokes, teasing or offensive comments about their disability. In addition, both the federal Americans with Disabilities Act (ADA) of 1990 and the New York State Human Rights Law (NYSHRL) prohibit disability discrimination against workers in New York.

In addition to federal and New York state law, workers in New York City are protected by the New York City Human Rights Law (NYCHRL), which offers some of the most expansive rights and protections available to disabled workers in the nation. These laws not only protect disabled employees from harassment and discrimination about their disability, but they generally require that employers provide reasonable accommodations to enable disabled employees to work while managing their disability.

In New York, the discrimination laws not only protect the rights of disabled employees, but also independent contractors, subcontractors, vendors, consultants, and certain other individuals providing services. This means that disabled individuals in New York who participate in the “gig economy” are also protected in the workplace.

Under the federal Americans with Disabilities Act (ADA), a person with a disability is defined as someone with a physical or mental impairment that restricts one or more “major life activities.” This term is broadly applied and encompasses many activities, including walking, sitting, talking, seeing, hearing, lifting, bending, working, socializing, breathing, concentrating, or learning at a typical pace. Even if an individual is mistakenly perceived as disabled, the law protects that person from discrimination in the workplace. However, despite this broad application of the definition of a disability, not every physical or mental condition or impairment qualifies as a disability under the ADA or New York discrimination law.

There are several types of conditions that qualify for disability protection in the workplace. An individual may have a congenital defect, such as spina bifida, cerebral palsy, or a heart defect, or they may have become disabled due to an injury, such as a car accident or a fall on the ice. In addition, the definition of disability includes chronic diseases that may arise later in life, such as multiple sclerosis, diabetes, lupus, cancer, heart disease, emphysema and other respiratory diseases, Crohn’s disease, irritable bowel syndrome, depression, anxiety and other mental health impairments, musculoskeletal disorders that affect the bones, muscles, and joints, such as rheumatoid arthritis, fibromyalgia, carpal tunnel syndrome, and spine disorders, including scoliosis and a herniated disk, and a host of other chronic mental and physical conditions.

Whatever the reason for the disability, and whether it affects an individual’s vision, hearing, cognitive ability, mental health, bodily function, or orthopedic or neuromuscular function, disabled workers are entitled to fair treatment at work. This means that an individual is entitled to be hired without regard to his or her disability — and to maintain that job — so long as they are able to fulfill the essential functions of their job, with or without a reasonable accommodation.

While the ADA and New York state discrimination laws are broadly-applied, and cover many different medical conditions, injuries and diseases, they typically do not cover temporary, minor conditions that are not severe and are only expected to last a short duration. Nonetheless, short-term impairments can be categorized as qualified disabilities under the discrimination laws if they are sufficiently severe. For example, a back impairment that results in a 15-pound lifting restriction lasting for several months is typically considered a disability. In addition, conditions that are episodic or in remission can be disabilities if they are substantially limiting when active. This includes conditions such as hypertension, epilepsy, lupus, and muscular sclerosis.

If you are disabled, you have no doubt arranged your life to make it easier to cope. You may, for example, use a cane, brace, walker or wheelchair, hearing aid, cochlear implant, or have a service dog. Similarly, the law requires your employer to make job accommodations, such as a schedule change, allowing you to sit rather than stand, permitting more frequent breaks, or making low-cost alterations to the workplace to improve your efficiency level and comfort, if this will enable you to perform the job. Other possible reasonable accommodations include:

• Making the workplace more accessible
• Allowing you to work from home
• Changing your workstation to make it more convenient/comfortable for you
• Allowing you to have a flexible work schedule
• Permitting you to leave work for medical treatment
• Removing certain inessential duties from your job requirements
• Providing you with a reader or interpreter if you are blind or hearing impaired
• Providing equipment such as a computer glare protector or telephone amplifier
• Adjusting your desk’s height for a wheel-chair
• Allowing a service animal at work

The interactive process is a dialogue between a disabled worker and their employer to identify an appropriate reasonable accommodation that will help the disabled individual to perform the essential functions of their job. While employers are exempted from providing accommodations that create an undue financial hardship or other unreasonable burden for the employer, they are always required to engage in the interactive process with the employee. An employer with an “undue hardship” must discuss the matter with the disabled worker and propose alternatives, if possible.

In contrast to federal and state law, in New York City, a failure by the employer to engage in an interactive process within a reasonable time after a worker has requested an accommodation (or becomes aware that an accommodation may be required) creates a separate claim against the employer. Employers in New York City are required to promptly engage in a “cooperative dialogue” with disabled individuals who have either requested a disability accommodation, or who have given notice of the disability and that it is in some way impacting their job performance. This dialogue should include a discussion of possible accommodations that exist, any hardships that a requested accommodation may pose for the employer, and alternatives that are acceptable to both the employer and the disabled worker. New York City employers must document the final outcome of this oral or written dialogue in a written determination, provided to the employee, which identifies any accommodation that was granted or denied.

An employer’s refusal to provide an accommodation specifically requested by an employee does not necessarily mean that they have violated the law, as long as the employer identifies and implements alternate accommodations (if possible) that address the worker’s ability to perform the job. In addition, employers need not provide an accommodation if they can show that doing so would cause an undue hardship — meaning that the accommodation (e.g. installing an elevator or a special ramp) is not reasonable as it would be too costly, extensive, or disruptive to the business. What makes accommodations “reasonable” is that they do not involve major or expensive alterations to the workplace, nor do they impose restrictions on other staff members.

However, employers violate the law when they simply deny a requested reasonable accommodation without evaluating whether the requested accommodation creates an undue hardship, or whether alternative accommodations are available. One thing is certain: inconvenience to the employer does not provide a justification for refusing to accommodate a disabled worker.

If an employer refuses to grant an accommodation specifically requested by an employee, the employee must nevertheless engage in a meaningful discussion with the employer about other possible accommodations that are proposed by the employer to determine if they offer a viable solution.

When an individual is experiencing disability discrimination or harassment at the workplace, the environment becomes toxic, often interrupting workflow and causing the employee emotional distress. As with other types of discrimination, an individual may be the target of derogatory language, inappropriate jokes, taunts, texts, or social media postings that relate to the individual’s disability. This behavior is considered disability discrimination and is illegal.

If an employee is being unfairly targeted, the first step to bolster his or her case is to document the harassment by amassing all available evidence, such as emails, texts, letters, pictures, video, documented conversations and actions, and memorializing witness accounts. In addition, employees should document and report any of the following types of incidents to the human resources department or a manager:

• Segregation from other employees or inferior working conditions
• Failure to receive equal pay for doing the same work as other employees
• Failure to be promoted or receive a raise because of a disability
• Failure of an employer to make reasonable accommodations
• Unfair discipline or mistreatment due to a disability
• Wrongful termination due to a disability

Depending on the particular circumstances of the employment situation, an employee who prevails on his or her claims of disability discrimination, including a failure by the employer to provide a reasonable accommodation, may be entitled to:

• Compensatory damages for their emotional distress or physical repercussions
• Reinstatement to their position (with appropriate accommodations)
• Lost wages (back and/or front pay)
• A reinstatement of their lost benefits (e.g. lost vacation days, sick leave, pension)
• Attorneys’ fees

In some cases, punitive damages may be awarded if there is a finding that an employer engaged in willful and reckless behavior that demonstrates a conscious disregard of the rights of a disabled employee. In addition, if an employer has retaliated against a disabled employee after they have complained to management internally, or have filed a complaint with the EEOC or New York State Division of Human Rights, or even hired a lawyer, the employee may have a separate claim of retaliation against the employer.

In order to hold employers accountable under the requirements of the federal and state disability laws, it is important to not only document the employer’s actions with respect to any failures to allow reasonable job accommodations, but also to prove that the employer was aware of the disability and the need for an accommodation. Therefore, it is helpful to report the situation, including details about your disability and how it impacts your job, to a managerial-level employee. Be sure to carefully document the complaint.

Additionally, a disabled employee should promptly complain to HR or a manager if they are facing ridicule, insults, or derogatory treatment from co-workers or managers as a result of their disability or need for an accommodation.

If the company is not responsive to an employee’s need for a job accommodation or fails to address discriminatory treatment by co-workers or managers who behave unlawfully or may be annoyed by the need to provide an accommodation, it may be helpful to consult with an employment attorney to determine what steps can be taken to stop the abusive treatment and receive the needed accommodation.