Being disabled can impact individuals in several important ways. For a great many Americans, however, it does not prevent them from working. Several studies have shown that disabled workers benefit businesses by being dependable and productive employees. Being disabled should not put an individual at a disadvantage when it comes to hiring, receiving employment benefits or being promoted. Nonetheless, disability discrimination in the workplace persists.
It is against the law to refuse to hire or promote 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. It is also unlawful to harass an individual because of their disability, such as subjecting them to jokes, teasing or offensive comments about their disability.
Both the federal Americans with Disabilities Act (ADA) of 1990, amended in 2008, and the New York State Human Rights Law (NYSHRL), prohibit disability discrimination in employment in New York state. Additionally, 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 stereotyping about the disability that adversely impacts them, but they generally require that employers provide their workers with job accommodations if that is what it takes to enable the disabled employee to perform his or her job while managing their disability.
Disability Protections for Independent Contractors
In New York, the disability discrimination laws not only protect the rights of employees but also contractors, subcontractors, vendors, consultants and certain individuals providing services to business. This means that disabled individuals in New York who participate in the “gig economy” are also protected in the workplace.
A person with a disability is one who has a physical or mental impairment that restricts one or more major life activities, such as walking, talking, seeing, hearing, socializing, breathing, or learning at a typical pace. Even if the individual is mistakenly perceived as disabled, the law protects that person from discrimination in the workplace.
Types of Disabilities
There are several types of conditions that qualify for disability protection in the workplace. An individual may have a congenital defect, or they may have become disabled due to an injury or a disease. 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, they are entitled to receive fair treatment at their job. 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 an accommodation.
While the ADA and NYSHRL are broad and cover many different medical conditions, injuries and diseases, they typically do not cover temporary, minor conditions that are not severe and are expected to last a short time, such as less than six months. Nonetheless, short-term impairments can be qualified disabilities if they are considered sufficiently severe. For example, a back impairment that results in a 15-pound lifting restriction that lasts for several months is 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 and muscular sclerosis.
What is a reasonable accommodation?
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 use a service dog. 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. Such reasonable accommodations may 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 inessential duties from your job requirements
- Providing you with a reader or interpreter for a worker who is 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
What is the interactive process?
The interactive process is a dialogue between a disabled worker and his or her employer to identify an appropriate job accommodation that would help the disabled individual to perform the essential functions of his or her job — while at the same time avoiding accommodations that would create an undue financial hardship or other great burdens for the employer.
While under the ADA, the mere failure to engage in an interactive process is not a basis of liability on its own, a worker is entitled to damages if the employer’s refusal to discuss the matter prevents the identification of an appropriate accommodation.
Cooperative Dialogue in New York City
In contrast to federal 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 the employer is aware that the employee may require an accommodation) creates a separate claim against the employer. In fact, employers in New York City are required to engage in and document a “cooperative dialogue” with individuals who have requested a disability accommodation or who the employer has noticed may need a job accommodation due to a disability.
When Employers Can Refuse to Grant Accommodations
An employer’s refusal to provide the accommodation specifically requested by an employee does not necessarily mean that they have violated the law, as long as the employer makes a serious good faith effort to identify and implement other possible accommodations. Nonetheless, it is important to understand that an accommodation need not be provided if the employer can show that doing so would cause an undue hardship — meaning that the accommodation (e.g. installing an elevator) would be too costly, extensive, or disruptive to the business. What makes accommodations “reasonable” is that they do not involve major or expensive alterations of the workplace nor impose untenable restrictions on other staff members. On the other hand, an employer is not considered to be engaged in a good-faith interactive process when it simply denies the requested reasonable accommodation without exploring any other accommodations or without evaluating whether the requested accommodation creates an undue hardship for the employer. While many disability accommodations can be considered inconvenient to the employer, that is not a justification for refusing to accommodate a disabled worker.
What are the employee’s obligations?
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 suggested by the employer to determine if they offer a viable solution.
What qualifies as disability discrimination?
When an individual is experiencing disability discrimination or harassment at the workplace, the environment becomes toxic, 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. Such 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.
Employees should document and report any of the following types of incidents to the human resources department or a manager:
- Failure to be hired because of a disability, although fully qualified
- 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 your disability
- Wrongful termination due to your disability
What types of damages are available for employees experiencing disability discrimination?
Depending on the particular circumstances of the employment situation, an employee who prevails on his or her claims that they were harassed or discriminated against because of their disability, or that they were harmed as a result of a failure by the employer to implement a reasonable accommodation, may be entitled to:
- Compensatory damages for their emotional distress or physical injury
- 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, which demonstrates that employer consciously disregarded 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.
Holding the Employer Liable
In order to hold employers accountable for 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 fully aware of the disability and the need for a job accommodation. It is therefore important for the disabled individual to advise one or more managerial-level employees of the disability, and to document his or her disclosures to the employer. A disabled employee should promptly complain to the human resources manager or upper management if their requested job accommodation is not provided or another equivalent accommodation is not suggested, or they are facing ridicule, insults or derogatory treatment from co-workers or managers as a result of their disability or their 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 are 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.
Claudia Pollak, Esq. is an employment lawyer based in White Plains, NY.