Although disabled individuals are no longer in the shadows, disability discrimination in the workplace persists. Nonetheless, it is unlawful for businesses to discriminate against disabled individuals or to make employment decisions based on their perceptions about the productivity of disabled workers.

This article is a brief discussion of disability discrimination and the applicable laws designed to protect disabled individuals.

What is disability discrimination in the workplace?

Disability discrimination occurs when an employment decision is based on an employee’s disability. Disability discrimination can also occur if an employer merely perceives that an employee has a disability but does not know whether the employee is actually disabled.

As an example, an employer who terminates an employee because of a perceived mental illness may have engaged in disability discrimination.

Disability discrimination may also involve denying a reasonable accommodation, which occurs when an employee asks or states a need for the employer to provide or to change something because of a medical condition and employer denies it. Likewise harassing a disabled employee or job applicant by making offensive comments about their disability may be disability discrimination.

Such conduct may result in a hostile work environment. In short, disability discrimination comes in many forms and may include anything that has an adverse impact on the terms and conditions of a disabled worker’s employment.

What is the American with Disabilities Act?

The federal Americans with Disabilities Act of 1990 (ADA) is designed to protect disabled individuals against discrimination in employment, housing and public accommodations.

In an employment setting, the ADA protects workers or job candidates who have the necessary qualifications (e.g. education, skills, experience) and who are capable of performing the essential job duties, with or without an accommodation.

In particular, the ADA prohibits employers from considering an individual’s disability when making an employment decision, such as hiring, terminating, compensating, promoting or any other terms and conditions of employment.

Employers are also required to make reasonable accommodations for disabled workers, and failing to do so may be considered disability discrimination. It is important to note that the ADA only applies to businesses with 15 or more employees, however, a number of local and state laws provide disabled workers with stronger protections.

What is a reasonable accommodation?

First, a request for reasonable accommodation is any communication in which an individual asks or states a need for the employer to provide or to change something because of a medical condition. A person does not have to specify a particular accommodation although it is helpful if he or she can suggest one.

Second, under the Americans with Disabilities Act, employers are required to adjust or modify a position or workplace so that a disabled employee can perform his or her job. Examples of reasonable accommodations include

• Making the workplace accessible
• Offering a flexible work schedule
• Removing non-essential job duties
• Providing special equipment
• Allowing for leaves to obtain medical treatment

Despite this requirement, an employer is not required to make an accommodation that would cause an undue hardship. In order to be considered an undue hardship, the accommodation must be too costly, extensive or disruptive to the business. Otherwise, failing to provide it may constitute disability discrimination.

Am I protected by the Americans with Disabilities Act?

To be eligible for the legal protections available under the ADA and/or applicable local and state law, you must have a disability, which is defined as a physical or mental impairment that limits your ability to perform daily life activities (e.g. walking, seeing, hearing, speaking, sitting, standing, lifting, performing manual tasks).

However, It is important to know that it is not always clear cut what impairment qualifies as a disability. Many disabilities are defined through case law (i.e. courts’ decisions) and their definitions may change overtime.  So some impairments that may have not been considered disabilities in the past, may be covered today.

In my own practice, I have encountered several individuals who did not know that their conditions, such as ADHD and depression, qualified as disabilities and unfortunately by the time the knew, their discrimination claims were no longer timely.

As such, it is best to get a consulation with an attorey that practices in the area of disability discrimination in order to asses if you have a valid claim in a timely manner. If you believe that you have been subjected to disability discrimination in the workplace, it is important to know your rights.

Whether you were rejected for a potential job, terminated from an existing one, or denied a reasonable accommodation, the ADA allows you to file a civil lawsuit to obtain compensation.

Furthermore, it is important to keep in mind that the protections afforded to individuals with disabilities under New York State and New York City laws are often broader and more generous than the ADA (i.e. these laws cover more types of disabilities and often put more obligations on the employer to work with the disabled employee).  This means that some individuals who do not have an ADA claim, may still have a claim under New York law.

Ultimately, the best decision you can make to protect your rights and your future is to consult an experienced discrimination attorney.

Author Bio:  Milana Dostanitch joined Lipsky Lowe LLP in 2018 and focuses her practice in employment law, including individual, complex collective and class action litigation under federal and state laws. Milana counsels and represents clients in a wide variety of employment matters, including the recovery of unpaid wages and benefits, tip misappropriation, sexual harassment, hostile work environment, retaliation, discrimination (based on gender, race, age, national origin, disability, sexual orientation, religion, etc.), and breach of contract. Milana’s practice is focused on advocating for employees’ rights for fair treatment and compensation in the workplace, by counseling both individuals and employers to create a safe and thriving environment for their employees and business.