Disability Discrimination

The legal protection afforded individuals with disabilities from on-the-job discrimination is surprisingly new. The passage of the Americans with Disabilities Act (ADA) was a momentous event that occurred only in 1990—nearly 30 years after Congress had first sought to address the issue of workplace discrimination through the Civil Rights Act. Nevertheless, the ADA and similar legislation at the state and local level have made great strides in bringing persons with disabilities into the workforce and allowing them to contribute their talents and abilities to society free of unwarranted and unnecessary boundaries. At the law firm of Joseph & Kirschenbaum LLP, our New York state disability lawyers are well versed in the intricacies of disability discrimination law and have helped numerous individuals with disabilities obtain vindication through the legal process.

The Americans with Disabilities Act is probably the most complex component of the entire body of federal workplace discrimination law. The ADA is framed around a number of terms of art, the interpretation of which is integral to the operation of the Act, notably:

• Are you a person with a disability? A person with a disability under the ADA is anyone with a physical or mental impairment that substantially limits one of more major life activities. The term also applies to people who are regarded by their employer as disabled, even if they do not actually fit the definition. This broad definition means that many people who do not consider themselves disabled may still find protection under the ADA.

• Are you otherwise qualified? Discrimination occurs when a person, because of their disability, is denied a position for which they are otherwise qualified. Otherwise qualified means you are able to perform the essential functions of that position with or without a reasonable accommodation. If there is no reasonable way a person with a disability could perform the essential functions of a job, even if the employer makes reasonable accommodations, it is not discriminatory to deny the person the position.

• What is a reasonable accommodation? An accommodation is an adjustment in policy or procedures or the provision of aid devices that allows a person with a disability to perform a job he or she may not otherwise have been able to perform. This could include allowing additional breaks or adjusted work schedules, installing wheelchair ramps or other access aids, or providing magnifiers or other assistive devices. Whether an accommodation is reasonable, however, depends on the degree to which an accommodation would disrupt the employer's operation or necessitate unreasonable cost. What's more, even if an accommodation is objectively reasonable, the employer may assert that it is subjectively an undue hardship under its particular financial situation. Larger employers are generally held to a higher standard of accommodation.

In addition to the principals that are particular to the ADA, the Act also prohibits harassment on the basis of disability in much the same way as other federal and state discrimination laws. Employers may be vicariously liable for disability-based harassment perpetrated by supervisors or if the employer knows or should have known the harassment was occurring and failed to act.

In New York City, victims of disability discrimination in employment have certain advantages under the NYC Human Rights Law that they do not have under the federal ADA. While under the federal law the claimant has the burden of proving that he or she could have performed the essential functions of the job in question with or without a reasonable accommodation, under the NYC law, the employer has the burden of demonstrating that the claimant's disabilities prevented him or her from performing a given job, even with reasonable accommodations. In addition, “disability” under NYC law includes nearly any physical or mental impairment, even temporary, so what qualifies as a disability under the city’s statute is far broader than the definition under federal law.

These local laws make it much easier for victims of disability discrimination to substantiate their claims.

Americans living with disabilities deserve the opportunity to contribute their talents to the workforce free of unnecessary and arbitrary barriers. Employers have an affirmative duty to facilitate this by providing reasonable accommodations to employees and applicants with disabilities.

If you believe you have been denied employment, demoted, discharged or otherwise treated unfairly based on a physical or mental condition, you may have legal recourse. Our NYC discrimination lawyers at the law firm of Joseph & Kirschenbaum LLP are well acquainted with the complexities and nuances of the Americans with Disabilities Act, and the protections provided by New York State and New York City laws. We have helped numerous disabled individuals both by achieving appropriate accommodation and obtaining substantial compensation for the damage already caused. Call our offices today to schedule a free initial evaluation. We are available by phone at 212-688-5640. We can also be reached online. Se habla espanol.