Disability Discrimination

OVER $165 MILLION RECOVERED FOR OUR CLIENTS

The disability discrimination attorneys at the Derek Smith Law Group, PLLC offer hard-hitting legal representation for those suffering from disability discrimination. If you are being harassed, denied employment, or denied accommodations in the workplace for a disability, our attorneys will provide effective and efficient legal counsel for your disability discrimination lawsuit.

Every working man and women, even those with disabilities, have the right to get a good job based on their skills and abilities. A disability should never prevent you from holding a position of employment for which you are qualified. A disability also should not give your employer and co-workers a free pass to discriminate against or harass you in your place of employment. Unfortunately, everyday handicapped individuals are being unfairly denied employment opportunities because of their disability. When a company infringes on your basic right to employment, our disability discrimination attorneys are here to help you with your EEOC claim or disability discrimination lawsuit.

Disability Discrimination in the Workplace

Disability discrimination occurs in the workplace when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. If you are disabled, it legally should not impact your ability to gain and maintain meaningful employment. According to the Americans with Disabilities Act and the New York Human Rights Law, employers cannot treat qualified individuals differently because of a handicap or disability, or perceived disability. Importantly, employers must provide “Reasonable Accommodations” to disabled individuals.
Unlawful discriminatory employment practices refer to discrimination in the hiring, firing, and the terms and conditions of employment, as well as job training. “Discrimination” also refers to harassment within the workplace. An employer cannot discriminate against any disabled person for requesting reasonable and legal medical leave or reasonable accommodation.

The Americans with Disabilities Act

Enacted in 1990, the Americans with Disabilities Act (ADA) prohibits employment discrimination against individuals with disabilities. A person is considered “disabled” under the ADA if he or she meets one of three statutory requirements. First, he or she may have “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Alternatively, he or she may have a record or be regarded as having such a disability. Thus, a person is “disabled,” within the meaning of the ADA if he or she has an impairment that actually substantially limits a major life activity, if there is a record that such a disability exists, or if the individual is perceived to have a disability, whether or not that disability severely limits a major life activity.
Given the above definition, any inquiry into an ADA claim will have two initial elements. First, the court must decide whether the claimed actual, recorded or regarded disability limits a major life activity. Second, if there is a limitation of a major life activity, the court must decide whether such a limitation is “substantial.”
Major life activities are broken into two categories: tasks and functions. Tasks are defined to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Functions, in turn, are defined as “including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Given these expansive (and non-exclusive) definitions, most ADA threshold inquiries will turn on whether the major life activity is substantially limited (rather than whether the limitation exists).
Under the authority of the ADA, the Equal Employment Opportunity Commission (EEOC) has promulgated regulations to be used when determining whether a limitation of a major life activity is substantial. In this regard, the EEOC has directed that the phrase “‘substantially limits’ should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.”
To meet its broad definition of “substantially limits” the EEOC has explained that “impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j). Furthermore, both the ADA and the implementing regulations recognize that an “episodic” limitation may qualify an individual as disabled under the statute. However, the duration of an impairment is a consideration in determining whether the impairment is substantial. Thus, where an impairment is expected to last for a short period of time, it likely will have to be more severe than a normal impairment to qualify an individual as disabled. Put differently, an impairment may substantially limit a major life activity, even if the restriction is not significant or severe, and even if the restriction is in remission.
It is important to note that the foregoing standard for proving disability under the ADA represents the effect of dramatic changes to the statute brought about by the ADA Amendments Act of 2008 (ADAA). Accordingly, in many situations, recourse to case law decided before the 2008 amendments may be inappropriate or unwise.

Examples of covered disability discrimination conditions

There is a wide range of EEOC diseases, disorders, mental illnesses, and physical impairments covered by both the Americans with Disabilities Act, ADA Amendments Act, and HRL, including:

·        Diabetes ·        Cancer
·        Epilepsy ·        Intellectual Disabilities.
In addition, regulatory guidance also lists the following conditions as disabilities:
·        Partial or Completely Missing Limbs ·       Autism
·       Mobility Impairments/wheelchair use ·        Cerebral Palsy
·        HIV Infection ·        Multiple sclerosis
·        Muscular dystrophy ·        Major depressive disorder
·        Bipolar disorder ·        Post-traumatic stress disorder
·        Obsessive-compulsive disorder ·        Schizophrenia
·        Blindness ·        Drug addiction and alcoholism
·        Hearing impairments ·        And many more…

Every case is situation-specific. For example, if you are suffering from disability discrimination based on obesity or from a substance abuse problem but are currently still using illicit drugs, you may not be covered. However, if you no longer use illegal drugs but need continued treatment for alcoholism and/or drug addiction, it may be considered a qualifying condition.

What is Reasonable Accommodation When it Comes to an Employment Disability?

As long as the accommodation does not impose “undue hardship,” an employer must provide reasonable accommodations to disabled employees.  Under the ADA, reasonable accommodations are modifications or adjustments which enable a qualified applicant to perform his or her job, and be considered for that job in the first place. The modification should allow them to enjoy equal benefits and privileges of other workers.
If a company unjustly denies you reasonable accommodations, speak with one of our disability discrimination lawyers right away.

What is Disability Harassment?

While we as a society have made strides in creating workplaces safer and more accessible to employees with disabilities, unlawful discriminatory employment practices are still prevalent.

If you are disabled, it should not impact your ability to gain and maintain meaningful employment. According to the Americans with Disabilities Act, New York Human Rights Law, the Pennsylvania Human Relations Act, and the New Jersey Law Against Discrimination, employers cannot treat qualified individuals differently because of a handicap, disability, or perceived disability. Further, employers must provide reasonable accommodations to disabled individuals.

Generally, unlawful discrimination refers to discrimination in the hiring, firing, and the conditions, compensation and privileges of employment, to include job training. Discrimination also refers to harassment within the workplace. These protections extend to asking for help; an employer cannot discriminate against any disabled person for requesting reasonable and legal medical leave or reasonable accommodation.

Can you Get Fired if you have a Disability?

Both Federal and State laws forbid an employer from firing an employee because the employee has a disability. The Americans with Disabilities Act (ADA) set the benchmarks for when an employer has impermissibly fired an employee based on a disability, except in cases where that disability will affect an essential job function.

As recently as 2016, the EEOC received an $8.6 million settlement of a disability suit after the Lowe’s fired thousands of workers with disabilities due to their rigid leave policies. Under this suit, the EEOC alleged Lowe’s violated the ADA by engaging in a pattern and practice of discrimination against their employees with disabilities when it fired them and failed to provide reasonable accommodations when their medical leave of absences exceeded Lowe’s 180-day maximum leave policy. The EEOC also alleged Lowe’s fired many individuals who were regarded as disabled, had a record of disability and those who were associated with someone with a disability. David Lopez, General Counsel for the EEOC stated the settlement sent a clear message to employers that violating the ADA by setting policies that limit the amount of leave, regardless of one’s disability status and automatically firing employees with disabilities once they reach this rigid, inflexible limit will be prosecuted by the  EEOC.

What is ADA in the workplace?

Enacted in 1990, the Americans with Disabilities Act (ADA) prohibits employment discrimination against individuals with disabilities. A person is considered “disabled” under the ADA if he or she meets one of three statutory requirements. First, he or she may have “a physical or mental impairment that substantially limits one or more major life activities.”  Or, they may have a record of, or be “regarded as” having such a disability. Thus, a person is “disabled,” within the meaning of the ADA if he or she has an impairment that actually substantially limits a major life activity, if the employee has a record showing that such a disability exists, or if the individual is perceived to have a disability, whether or not that disability severely limits a major life activity.

Given the above definition, any inquiry into an ADA claim will have two initial elements. First, the court must decide whether the claim, actual, recorded or regarded disability limits a major life activity. Second, if there is a limitation of major life activity, the court must decide whether such a limitation is “substantial.”

Major life activities are broken into two categories: tasks and functions. Tasks are defined to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Functions, in turn, are defined as including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Given these expansive (and non-exclusive) definitions, most ADA threshold inquiries will turn on whether the major life activity is substantially limited (rather than whether the limitation exists).

Under the authority of the ADA, the Equal Employment Opportunity Commission (EEOC) has promulgated regulations to be used when determining whether a limitation of a major life activity is substantial. In this regard, the EEOC has directed that the phrase substantially limits should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.

To meet its broad definition of “substantially limits” the EEOC has explained that “impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”  Furthermore, both the ADA and the implementing regulations recognize that an “episodic” limitation may qualify an individual as disabled under the statute. However, duration of an impairment is a consideration in determining whether the impairment is substantial. Thus, where an impairment is expected to last for a short period of time, it likely will have to be more severe than a normal impairment to qualify an individual as disabled. Put differently, an impairment may substantially limit a major life activity, even if the restriction is not significant or severe, and even if the restriction is in remission.

It is important to note that the foregoing standard for proving disability under the ADA represents the effect of dramatic changes to the statute brought about by the ADA Amendments Act of 2008 (ADAAA). Accordingly, in many situations, case law decided before the 2008 amendments may be inapplicable. Consultation with an experienced and knowledge ADA attorney is strongly suggested. The Derek Smith Law Group, PLLC has years of experience litigating claims under both the ADA and the ADAAA.

What is a Reasonable Accommodation?

The term “reasonable accommodation” is hard to pin down. As long as the accommodation does not impose “undue hardship,” an employer must provide reasonable accommodations to disabled employees.  Under the ADA, reasonable accommodations are modifications or adjustments which enable a qualified applicant to perform his or her job and be considered for that job in the first place. The modification should allow them to enjoy equal benefits and privileges of other workers.

The EEOC handles disability claims. For instance, in Banner Health, the EEOC resolved a charge by an employee that his employer refused his requests for reasonable accommodations and subsequently fired him because of his disability. The employee is intellectually disabled and had been working for the employer for decades. The Employee had after years of failed requests for reasonable accommodations, establishing a pattern of discrimination, the employer fired the employee. The EEOC was granted a consent decree and ordered the employer to pay $255,000 for a trust for the employee.

If a company unjustly denies you reasonable accommodations, speak with one of our disability discrimination lawyers right away.

How Does an Employee File a Claim for Disability Discrimination?

A claim for discrimination based on a disability can be filed with either a State or Federal agency. The Equal Employment Opportunity Commission (EEOC) is the federal agency that typically handles federal claims. Some states have a “work-sharing agreement” by which a claim is filed with the EEOC but the states conduct the primary investigative role. In these states, it is generally unnecessary to file a claim with both agencies, so long as you state you will be making a “cross-claim” with the other agency when filing the initial claim.

While you may file a claim in the EEOC office located closest to where you live, the claim may be investigated at the EEOC office located closest to where the discrimination occurred. For American employees working overseas, you may file with the office closest to your employer’s headquarters.

Depending on where the discrimination took place, it will affect an employee’s place of filing. Typically, a claim must be filed within 180 days of the act of discrimination, however that deadline is extended to 300 days if State or local agencies enforce state or local claims on the same basis as the federal law. It is important to note that the EEOC does not accept charges filed online, you may file in person or by mail.

This process can be daunting if an employee feels as though they have a claim for discrimination, it is important to contact an attorney to help navigate the ins and outs of filing a disability claim.

Do not wait to speak with a Disability Discrimination Attorney

A disability should never hinder your ability to succeed in the professional world. If you feel you have been the victim of workplace discrimination or sexual harassment or if your employment rights have been violated, call us at 800-807-2209 for a free consultation to discuss your possible claim. Our attorneys are available to review your claims and prepare a solid case to recover the damages and justice you deserved.

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