A Guide to Disability Discrimination in Warren County
Are you an employee who works for a private company or a municipality in Warren County? Have you been discriminated against because of a disability or denied a reasonable accommodation of your disability? You have rights.
Is my employer covered by the law? That depends on what kind of employer you have and how many employees it has.
Both the New York State Human Rights Law and the Americans with Disabilities Act (the federal law) apply to public and private employers. For private employers to be covered, they need to have at least 4 employees under the state law and 15 or more employees under the federal law.
Whether you work for a public employer (including a school district) may affect the necessity of serving a notice of claim within 90 days of whatever happened to you in order to preserve your state law rights. More on that below.
Am I covered? Do I have a disability?
The New York State Human Rights Law has a pretty broad definition of a disability that applies to most diagnosed medical conditions and injuries, so long as the employee is still able to perform the essential functions of his or her position with or without a reasonable accommodation. The Americans with Disabilities Act is slightly less expansive but was amended in 2008 to offer broader protection. The ADA also requires the employee to still be able to perform the essential functions of his or her position.
Both the state and federal law also apply to perceived disabilities. So, is your employer discriminating against you because he thinks you have a disability but you really don't.
If you have a disability, the law protects you from discrimination. That means you cannot be harassed or suffer some other adverse employment action because of your disability.
Would a reasonable accommodation allow me to perform the essential functions of my position? Is the accommodation too burdensome on my employer?
In addition to being protected from discrimination, disabled employees also are entitled to reasonable accommodations of their disability. A reasonable accommodation cannot pose an undue burden on the employer and would allow the employee to continue performing the essential functions of his or her position. Reasonable accommodations can include light duty, a temporary leave of absence, a physical accommodation like a ramp or a special chair, the ability to take breaks, etc.
Have I requested a reasonable accommodation?
The disability laws put a burden on employees to request an accommodation. Once the accommodation is requested, the employer then has the burden of engaging in what is called an “interactive process” with the employee to determine whether a feasible accommodation exists. To protect themselves, employees should document the request for an accommodation so that he or she can prove the request was made. An employee is not only entitled to the accommodation if it is reasonable, but is protected from retaliation for making the request in the first place even if it turns out the employee was not entitled to the accommodation after all.
Have I suffered an adverse employment action?
Whether you have recourse also depends on whether you have suffered an adverse employment action. Adverse employment actions include denial of a reasonable accommodation, being fired and being demoted or disciplined, among other things. Harassment can also be so severe and pervasive that it becomes a hostile work environment under the law. In such circumstances, an employee may be entitled to quit and then sue – this is referred to as a constructive discharge or forced resignation. A constructive discharge may also occur if the denial of the accommodation makes it impossible for the employee to continue working and they have no choice but to leave the workplace.
What do I do if I have been discriminated against or denied a reasonable accommodation?
If you have suffered an adverse employment action, in order to preserve your federal rights under the ADA, you need to file a charge with the Equal Employment Opportunity Commission. Filing with the New York State Division of Human Rights is an option as well and will result in a dual filing with the EEOC. There are strict time deadlines in all employment cases and they run from the date of the adverse action. So, even if you are still employed, you should still look into preserving your rights.
We note that there is no filing requirement for state law claims. So, if you only have state claims because, for example, your employer doesn't have enough employees to be covered by the ADA, you may elect to sue in state court without filing a complaint with the Division of Human Rights. (Note, however, a notice of claim may still be a prerequisite if you have a public employer. More on that below.).
While you are still employed, an employee should also seriously consider complaining internally about the harassment or discrimination, not only to give the employer a chance to make things right but to document what is going on and possibly protect oneself from retaliation. Sometimes it turns out that an employee doesn't have a strong discrimination case, but they do have a good retaliation case based on a complaint or the request for an accommodation. Most employers will have a handbook setting out complaint procedures. If there is no handbook, complaints should be made to HR or to your supervisor or boss if you work for an employer without an HR department.
If you work for a public employer or a school district, you also need to consider whether you need to serve what's called a “notice of claim” on the employer. To be safe, a notice of claim should be served on any public employer, including a school district, except for a city. A city is the only public employer where we have a New York State Court of Appeals case telling us a notice of claim is not required. The Appellate Division Third Department, which covers Warren County, has addressed this issue in the context of counties and continues to hold that a notice of claim is required. Until this is reversed by the Court of Appeals, this is the law in Warren County and should be followed. A notice of claim must be served within 90 days of the action complained of. This is a tight and onerous deadline and it's possible that an employee does not contact an attorney in enough time. Luckily, it only applies to state law claims.
What happens next? A lawsuit?
If you have filed a charge with one of these agencies they will investigate and issue a determination. If no determination has been made after 180 days, you may request a notice of right to sue from the EEOC in order to pursue your claims in federal court. Procedures are a bit different in the state Division of Human Rights but there are also points in that process where you can withdraw your claim and pursue it in court. Additionally, as noted above, state law does not require a filing with the Division of Human Rights as a prerequisite to suit so you may sue a state law case without waiting. Often, however, an employee has both state and federal claims and, in that situation, it is more common to wait for the EEOC process to end and then sue the state and federal claims in one lawsuit in federal court.
What court do I file in?
Employment lawsuits can be filed in state or federal court. If you choose state court as your forum, a complaint would be filed with the Warren County Supreme Court. If you choose federal court, your complaint would be filed in the Northern District of New York which encompasses Warren County. While each court has jurisdiction over both state and federal claims (meaning the state court can decide the federal law issues and vice versa), if you have federal claims, a defendant is permitted to “remove” a state case to federal court. So, even if you file in Warren County, if you have federal claims, a defendant could transfer your case to federal court and is very likely to do so.
What are my damages?
State and federal law provide for recovery of lost wages and benefits (including retirement benefits) and emotional distress damages. You can also request injunctive relief like getting your job back. Federal law allows for the recovery of attorneys' fees but state law does not in a disability discrimination case.
Contacting an attorney.
If you have been the victim of discrimination or a failure to accommodate in Warren County you should contact an experienced employment attorney as soon as possible in order to determine whether you have a claim and in order to protect your rights and abide by any applicable time deadlines.