Discrimination based upon a disability (link) can take many forms. An employer can fail to accommodate a disability (link), or can refuse to hire because of a disability (link). By far the most common type of disability discrimination that we see in our practice, however, takes the form retaliation following a medical leave.
Many people who work for large companies are protected during a medical leave by the Family and Medical Leave Act (“FMLA”)(link). Most employees in the United States, however, do not work for large companies but instead work for companies with less than thirty employees. This leaves these workers vulnerable, because if they need to take a medical leave to deal with their own serious medical condition they do not generally receive the protections afforded by the FMLA (Link), which include having a position held for you for up to twelve weeks and remaining free from retaliation for the leave.
This is where disability discrimination laws, including the Americans with Disabilities Act (“ADA”)(link) and the New York State Human Rights Law (Link) come in.
If you work for a State or Local government, or a company with 15 or more employees, you generally have protections from disability discrimination under the ADA(link). In New York, you are protected under the Human Rights Law if you work for an employer with more than 4 employees.
The reality is that smaller companies feel the loss of an employee due to a medical leave much more than large companies, who often have many people who can fill the void while the employee is out. At a smaller company the loss, and any measures that must be taken when the employee returns, can cause a problem for the bottom line. This is where disability discrimination often comes in.
In a “typical” situation, an employee will be forced to go out of work either because of a serious workplace injury (link) or a medical condition. They could be out as little as a day or two, or perhaps as long as a couple of months. The employee may not formally be allowed to take a “medical leave”, but if the condition that they are treating qualifies as a disability (link), they should be able to take the leave as a “reasonable accommodation”(link).
Let's look at a real-world example:
Susan suffers from severe depression, which under New York Law generally qualifies as a disability. She experiences a bout of the illness that requires an inpatient stay at a medical facility for three days. While she's out she sends a note to her employer asking that the time be excused. This excusal would generally constitute a “reasonable accommodation.”(link).
When Susan returns, however, she is not “pegged” by her boss as a “problem” employee – someone who is going to need multiple days off and is generally going to be in and out of the office. Keep in mind that Susan has not actually requested any additional time, but her boss had an ex-girlfriend whose father had depression, and he just knows that it's going to be a problem.
So, the boss starts targeting Susan to push her out the door, because he's concerned about his bottom line and can't have employees “going off the deep end.” He makes her life miserable, takes away most of her job responsibilities, and alienates her from other co-workers. Eventually, unable to handle the stress of the situation, Susan quits (link).
This example is the most common way that disability discrimination occurs in the real-world.
For Susan, the best thing that she can do (and could have done), is to document things each step of the way. She wants to be able to show that she was reasonable, and that every step of the way she tried to work with her boss. She also wants to be able to show exactly what her boss did, and when, because by creating a hostile work environment (link) for Susan, her boss effectively terminated her (link).
Disability discrimination effects many people, and has the potential to impact the work life of everyone with a job. Knowing how to identify it, and the steps to take along the way, if the first step in preventing or at least addressing a very unfortunate situation.
Questions about disability discrimination? Feel free to contact us today.