The Americans with Disabilities Act (“ADA”) & the New York State Human Rights Law (“NYHRL”) Make it Unlawful to Discriminate Against Someone Because of a Disability
What is “Disability” Discrimination?
An employee may not be treated differently because of his or her disability. This includes being subjected to harassment/hostile work environment, being demoted, terminated and not hired in the first place. Qualified employees with disabilities are also entitled to reasonable accommodations of their disabilities.
The definition of disability in the ADA as well as the NYHRL is relatively expansive and covers many medical and psychological impairments. In an effort to expand protections for transgender individuals, the New York State Division of Human Rights recently promulgated regulations which include “gender dysphoria” within the definition of a “disability.” Employees are also protected from discrimination for “perceived disabilities” such as where an employer perceives you to be limited in your ability to do your job because of a disability but you are not.
The law also protects employees from improper questioning about medical conditions and requires medical information obtained when investigating an employee's disability or request for an accommodation to be kept confidential.
What is a Failure to Accommodate?
The discrimination statutes require employers to provide reasonable accommodations to qualified employees with disabilities. An accommodation is reasonable if it does not pose an undue hardship on the employer and allows the employee to continue performing the essential functions of his or her position. Reasonable accommodations may include light duty, a leave of absence of a reasonable and finite duration, devices to assist an employee with performing his or her job duties such as a special chair or hearing or visual aids, and many other accommodations that may be reasonable under the circumstances. While an employee must general still be able to perform the essential functions of his or her position in order to be protected, there are circumstances where a transfer to a new, vacant position may be appropriate. Failure to provide an accommodation may result in an employer violating the disability discrimination statutes. To that end, both federal and state law require employers to enter into an “interactive process” with employees to investigate and determine whether feasible accommodations exist. Generally speaking, this would mean that an individual with a disability could not be terminated on the spot for requesting an accommodation.
Disability Discrimination Under the ADA
Who Does the ADA Apply To?
The ADA (Title I specifically when it comes to employment discrimination) is a federal statute that applies to private employers with fifteen (15) or more employees as well as to municipalities. Courts have held that states and their agencies are immune from liability for money damages under Title I of the ADA. State employees are protected under the NYHRL and may also have protection under the Rehabilitation Act as interpreted by case law.
Making a Complaint for Disability Discrimination under the ADA
If you believe you have been the victim of disability discrimination, are being harassed because of a disability or have been denied a reasonable accommodation, you should seriously consider making a complaint to your employer. If and when you make a complaint keep two crucial issues in mind: 1) make the complaint in writing (and that you keep a copy) so that you have proof that it was made; and 2) make the complaint to the appropriate person. You should check your employee handbook or personnel policy to determine whether your employer has complaint procedures and be sure that you are following them. If there is no formalized complaint procedure, you should consider making your complaint to your supervisor and/or a Human Resources representative.
You may also consider making a complaint with the EEOC (link).
The United States Equal Employment Opportunity Commission (“EEOC”) is responsible for investigating claims of disability discrimination under the ADA. The EEOC is a federal agency, with offices throughout the United States, including multiple offices throughout New York State.
A claim for disability discrimination must generally be filed with the EEOC within 180 days of the illegal conduct. This time period can be extended in New York to 300 days in most cases. You must make a complaint to the EEOC within the appropriate time period to preserve an ADA claim. A failure to accommodate will set the clock running even if you are still employed, so it is important to contact an attorney if you have been denied a reasonable accommodation to be sure that you do not exceed any applicable deadlines.
If you file a legitimate complaint of disability discrimination with your employer, you will be protected from retaliation (link). This means that your employer may not target you because you made a complaint.
After the disability discrimination complaint is filed, the EEOC will start its investigative process. Read more about that process here (link).
Damages for Disability Discrimination Under the ADA
The ADA allows for a victim of disability discrimination to recover monetary (or money) damages. Injunctive relief is also available, ie., an employer may be ordered to provide a reasonable accommodation.
The damages that a victim of disability discrimination may recovery under ADA include:
Past lost wages (the amount of money you've lost because of the discrimination);
Future lost wages (the amount of money you expect to lose because of the conduct in the future, both if you have another job making less money or if you have not found a new job);
Lost benefits, which may include lost vacation time, sick time, pension or retirement benefits. For more on how lost retirement benefits are calculated, read this article (link).
Emotional Distress damages, which are generally divided into two categories: “garden variety”- which cover those individuals who have not sought medical treatment or counseling for the emotional distress; and non-garden variety – which cover those who have sought and received treatment. As you might imagine, the amount recoverable for non-garden variety emotional distress damages is generally larger.
Attorneys' Fees. This is often a significant element of damages. The court may award the successful attorney an hourly rate fee (as determined by the court) for the total number of hours worked on prosecuting the sex or gender discrimination lawsuit.
Punitive Damages, a discretionary award meant to “punish” an employer for its wrongful conduct. Punitive damages are not typically available against public employers.
Disability Discrimination Under the New York State Human Rights Law
New York State Executive Law 296, known as the “Human Rights Law”, prohibits discrimination on the basis of disability in New York State. Unlike the ADA, the Human Rights Law protects New York State employees who work for an employer with four (4) or more employees. This means that many employees in New York State are protected by the Human Rights Law who would not otherwise receive protection from Title VII. The NYHRL is also more favorable to employees than the ADA with its more expansive definition of disability, worse consequences for failing to engage in the interactive process and the specific inclusion of protections for individuals with gender dysphoria.
Making a Complaint for Disability Discrimination in New York
The first option for a disability discrimination victim may be filing an internal complaint with the employer. As with a complaint under the ADA, if you decide to make this complaint you should do two things: 1) make it in writing; and 2) make it to the person designated to receive the complaint under the employee handbook – assuming someone is identified.
In New York State, victims of disability discrimination may also choose to file an administrative complaint with the New York State Division of Human Rights (“DHR”). DHR handles claims of disability discrimination under the State Human Rights Law. Claims must generally be filed within one year of the discrimination, but there are exceptions making the time period shorter in some situations.
After receiving a complaint, DHR will open an investigation. To learn more about the investigative process, click here. (Link).
Damages Under the NYS Human Rights Law
A successful victim of disability discrimination under the NYS Human Rights Law can expect to recover damages similar to those available under Title VII, with the exception of attorneys' fees and punitive damages, which are generally not recoverable under New York Law.
Both the ADA and the NYS Human Rights Law protect employees from retaliation when they have engaged in protected activity. Protected activity includes making complaints of discrimination as well as making a request for a reasonable accommodation. It is important for complaints and requests for accommodations to be documented so that, in the event you are retaliated against, you have proof of the protected activity. The EEOC and the Division of Human Rights also investigate claims of retaliation and, if you make a complaint with one of these agencies, you should specifically include retaliation in addition to your claims of discrimination, harassment or failure to accommodate.
Examples of Disability Discrimination in the Workplace
- Being terminated for requesting an accommodation without the employer engaging in the interactive process and where the accommodation is reasonable;
- Harassment/hostile work environment;
- Being treated less favorably than employees without a disability including failures to promote, demotions and terminations;
- Being terminated or placed on leave because your employer perceives you to have a disability or perceives your disability to limit you in ways that it does not;
- Being terminated for taking a finite leave of absence because of a disability;
- If you are entitled to 12-weeks of FMLA leave because you work for a larger or public employer, the disability discrimination laws may entitle you to what amounts to an extension of your FMLA leave. So, if you request an extra two weeks off and your employer terminates you even though an additional two weeks would not pose an undue burden, you may have a claim for disability discrimination even if you do not have an FMLA claim because you received 12 weeks off.
As in all employment cases, there are a myriad of scenarios that could give rise to a disability discrimination or retaliation claim. If you feel you have been discriminated or retaliated against, you should contact an experienced employment attorney as soon as possible to determine whether you have a claim and to preserve your claims in light of strict time deadlines.