Disability Discrimination in the Workplace

Protect Your Rights with an Employment Disability Discrimination Lawyer

Have you experienced disability discrimination at work? You have rights. Mistreating a job applicant or employee because of their disability status violates the law.

Our guide walks through your rights under disability discrimination laws and explains how to prove disability discrimination at work. If you experience employment disability discrimination, a lawyer can help.

Contact New York disability discrimination lawyer Charles Joseph for a free consultation to protect your rights. Charles Joseph’s firm has recovered more than $200 million for clients. Reach out today for a free, confidential consultation.

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Know Your Rights: What is Disability Discrimination?

Disability discrimination means treating a job applicant or employee unfavorably because of their disability status. It also includes mistreatment because of a former disability or a perceived disability.

It is illegal for an employer to make employment decisions or treat you differently based on your disability.

Employers cannot treat you differently because of your current or past disability, perceived disability, or your association with someone with a disability.

New York offers strong disability discrimination protections.

New York offers some of the strongest protections for employment disability discrimination in the country. If you experience disability discrimination in the workplace, a New York discrimination lawyer can help.

Learn about protected disabilities, reasonable accommodations, and proving workplace disability discrimination on this page, or contact us to speak directly with a disability discrimination lawyer today.

Disability discrimination laws also protect non-employees.

Employment disability laws also cover domestic workers, independent contractors, consultants, and more in New York State.

If you have been the victim of disability discrimination in the workplace, you have protections under federal, state, and New York City laws. A disability discrimination lawyer can help.

Check out our FAQ on What is Disability Discrimination for more info. 

Protected Disabilities

What qualifies as a disability? There is no list of protected disabilities or medical conditions that qualify as disabilities. Instead, the laws provide general standards.

New York City defines “disability” broadly, as “any physical, medical, mental or psychological impairment,” including a history or record of such impairment. The law also applies to individuals who are recovering or have recovered from substance abuse problems, including alcoholism and drug addiction.

New York state’s definition is somewhat more generous than the Americans with Disabilities Act, but less broad than NYC laws.

The Americans With Disabilities Act (ADA)

The ADA provides a general definition that tests each person on a case-by-case basis. Protected disabilities can be physical or mental, and in order to fall under the ADA, the disability must “substantially limit a major life activity.”

Major life activities include: walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, thinking, concentrating, and interacting with others. It also includes major bodily functions such as digestive, bowel, bladder, respiratory, neurological, brain, circulatory, endocrine, and reproductive functions.

The following is a list of conditions that are nearly always found to be disabilities under the ADA.

• Deafness
• Blindness
• An intellectual disability
• Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair
• Cancer
• Cerebral palsy
• Diabetes
• Epilepsy
• HIV or AIDs
• Multiple sclerosis
• Muscular dystrophy
• Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia

Excluded Disabilities

While the ADA does not provide a list of protected disabilities, it does explicitly exclude certain conditions from being considered disabilities.

• Homosexuality and bisexuality
• Gender identity disorders not resulting from physical impairments
• Transgender identities
• Compulsive gambling, kleptomania, pyromania, exhibitionism, and voyeurism
• Pedophilia and other sexual behavior disorders
• Physical characteristics (eye color, hair color, left-handedness) or height, weight, or muscle tone that are within a normal range
• Pregnancy (Pregnancy discrimination is specifically protected by other laws, including FMLA)
• Common personality traits, like poor judgment or a hot temper
• Psychoactive substance use disorders resulting from current illegal use of drugs

Maladies such as broken bones, sprains, concussions, appendicitis, and influenza are generally not considered disabilities under the ADA, because they are temporary conditions. However, under New York City law such conditions may be considered disabilities.

Alcohol and Drug Abuse

Employers may not discriminate against you for your former alcohol or drug abuse, as long as you are in treatment or have been treated and are no longer abusing that substance.

For example, your employer should make reasonable accommodations to allow you to attend AA or NA meetings, or to not attend company events where alcohol will be served.

Employers do not have to accommodate current alcohol or drug additions. For example, they do not have to excuse tardiness because of a hangover.

You are not protected if your employer mistakenly believes you are an untreated alcoholic or drug addict.

Genetic Conditions

Genetic conditions can be considered protected disabilities even when the condition has not progressed to a disability or disease. For example, if you faced discrimination based on a family history of schizophrenia, you would qualify for legal protection even though you are not currently diagnosed with schizophrenia.

Even if you are no longer disabled, your employer may not discriminate against you based on a past disability.

Examples of Disability Discrimination in the Workplace

Disability discrimination in the workplace can take several forms. Understanding the law helps workers protect their rights.

There are three specific ways your employer could violate the law:

1. Employers cannot make employment decisions based on your disability or perceived disability instead of your skills and how well you do your job. This includes decisions about hiring, firing, discipline, distribution of benefits, promotion, compensation, job training, or any other condition of employment.
2. It is illegal for an employer to create or allow a hostile work environment.
3. Employers cannot refuse to engage with you in an interactive process regarding possible accommodation and to provide a reasonable accommodation that allows you to perform your job duties despite your disability.

It is not against the law to treat a disabled person more favorably than a non-disabled person.

Discriminatory Employment Decisions

Employers cannot make employment decisions based on your disability or perceived disability instead of your skills and how well you do your job. This includes decisions about hiring, firing, discipline, distribution of benefits, promotion, compensation, job training, or any other condition of employment.

Examples of Discriminatory Employment Decisions:

• You apply for a job for which you have experience and excellent qualifications. But you are not hired because the employer is worried your disability will increase their health insurance costs.
• When you apply for a job, the employer thinks you look very thin and assumes you have AIDS. The employer asks you to undergo a medical exam before deciding whether to offer you a position. This is discriminatory even if you do not have AIDS and are not HIV positive.
• Although you have had excellent performance reviews, your employer fires you because they are worried you will have to take off too much time for upcoming chemotherapy treatments for breast cancer.

Failure To Promote You Because Of A Disability

Employers cannot withhold a promotion because an employee has a protected disability.

Example of Failure to Promote because of a Disability:

• After working as an assistant store manager for several years, receiving exemplary reviews and an employee-of-the-year award, you apply for a promotion to store manager. Your employer refuses to promote you, saying the position requires you to have a driver’s license in order to take receipts to the bank, and you have epilepsy. 
• You apply for an internal promotion but your supervisor withdraws your application, telling you that because you were recently diagnosed with cancer, you won’t have time for the role.
• Your company regularly promotes non-disabled employees after 3-5 years. You’ve been in your role for 8 years with strong performance reviews but your supervisor implies that your disability makes you a poor candidate for a promotion.

Employers cannot blame discriminatory decisions on the anticipated reaction of other employees or customers.

Your employer cannot refuse to hire or promote you because it believes your disability could make co-workers or customers uncomfortable.

Discrimination Without A Disability

It is illegal for employers to discriminate against employees who they mistakenly believe have a disability.

You can be the victim of disability discrimination in the workplace even if you do not have a disability. Laws against discrimination also cover past disabilities and perceived disabilities.

Even if you no longer have a disability, your employer cannot discriminate against you based on a former disability. It is also illegal for your company to treat you differently because it mistakenly believes that you have a disability.

Examples of Discrimination without a Disability:

• Five years ago, you were diagnosed with a malignant brain tumor, but the entire tumor was surgically removed and you are now cancer-free. Your employer cannot deny you a promotion because they believe the position is unsuitable for someone with a brain tumor or they are afraid the tumor will come back.
• Based on office rumors, your supervisor believes you are HIV positive and refuses to let you work at the front desk, which would be a more lucrative position, because the employer is afraid it would upset clients.
• During a job interview, the hiring manager asks if you have any disabilities. You disclose that you have diabetes and the hiring manager ends the interview, telling you that the position isn’t a good fit.

Policies With Discriminatory Effects

Unintentional employment disability discrimination can also be illegal.

Job policies that appear neutral can be discriminatory if they harm workers with disabilities, as long as the policy is not job-related.  

For example, an apparently neutral policy that requires all employees to have a driver’s license would negatively affect workers with epilepsy or a sight impairment. This requirement would be legal if the employer were hiring a bus driver, but harder to justify for a schoolteacher who has to split her time between schools.

Reasonable Accommodations

Employers must provide reasonable accommodations to employees or potential employees. Refusing to provide reasonable accommodations violates the law.

However, in order to be protected under the law, you must be able to perform all of the essential functions of the job. If your disability entirely prevents you from doing the job, the employer can refuse to hire you. For example, employers can refuse to hire a blind applicant for a job as a school bus driver.

If you require a reasonable accommodation in order to effectively do the job, your employer must provide the accommodation unless doing so would pose an undue hardship.

Examples of Reasonable Accommodations:

• You are a grocery store cashier, and your disability prevents you from standing for long periods of time. The employer could provide you with a stool or other seating.
• You are an office worker with a mental illness that makes you easily distracted by noise and movement around you. Your employer could give you an enclosed office or cubicle and a white noise machine.
• A manager position requires you to visit the bank once a week. Your supervisor says that because you’re blind, you can’t drive to the bank. A reasonable accommodation could be taking a taxi or public transit to the bank.

Undue Hardships

Employers can claim that an accommodation would create an undue hardship. Financial difficulty may qualify as an undue hardship.

In addition, employers do not have to provide an accommodation if the disability presents a direct threat to safety and no reasonable accommodation can negate the threat. For example, an airline pilot with narcolepsy would pose a threat to safety, and it would not violate the law to prohibit the pilot from flying.

Once your employer knows about your disability, they must work with you to determine whether a reasonable accommodation would allow you to perform your job.

Under federal and state law, you must prove that you are able to do the tasks necessary for your job, with or without reasonable accommodations. Under New York City law, your employer must prove your disability makes you unable to do the job.

Hostile Work Environments Violate the Law

You can be the victim of disability discrimination in the workplace even when no employment decision is involved. Harassment can create a hostile work environment, which violates the law.

Certain actions can create a hostile work environment, for example:

• Words such as jokes, slurs, or offensive or derogatory remarks about someone’s disability
• Offensive pantomimes of someone’s physical disability
• The display of offensive images

Illegal Harassment Requires Being Treated “Less Well Than Other Employees” Because Of A Disability

The standards for a hostile work environment vary. New York State and New York City law defines discrimination as when someone is treated “less well than other employees” because of a disability, as long as the ill treatment was more than petty or trivial.

New York state requires that courts interpret state law extremely liberally, regardless of how similar federal laws have been construed.

However, under federal law, the standard for proving harassment is much higher. You have to prove that the harassment was “severe or pervasive.” Comments or acts constitute harassment only if they occur often enough and/or are severe enough to create an intimidating, hostile, or offensive work environment.

If the offensive behavior is affecting your ability to do your job, you may have a claim.

The Offender Does Not Have To Be Your Boss

Employers have a responsibility to prevent a hostile workplace. A co-worker or even a non-employee, like a vendor, can be the harasser. Your employer is liable as long as they knew or should have known about the harassment. If the harasser was a supervisor, senior to but not in your direct line of report, the company will often be liable, especially under New York City law.   

What To Do If You Are The Victim of Discrimination

Discrimination can happen in any workplace. If you think you are the victim of discrimination or a hostile work environment, there are several steps you can take right away.

• Start keeping notes of the discriminatory practices and/or harassment. Be specific in your details—write down the time and place of each incident, what was said and done, and who witnessed the actions.
• Keep doing a good job. Make copies of your job evaluations and any letters or memos that show that you are doing a good job at work.
• Seek support from friends, family, clergy, and, if helpful, a mental health professional. Harassment at work can be very stressful, and it is a difficult thing to face alone.
• Report the incident in writing to your supervisor and human resources department. Tell them about the behavior and the steps you have taken to address it.
• Check your company’s employee handbook. If your employer has a harassment policy in place, follow it.
• Preserve any information such as inappropriate texts, pictures, or voicemails sent to you.
• Put all of your complaints in writing, and keep copies at home.

A New York disability discrimination lawyer can help you make the strongest possible case.

Retaliation is Illegal

If you complain about disability discrimination at work, your employer cannot take any action against you.

Employers cannot retaliate against applicants or employees who complain about discrimination on the job, file a charge with the Equal Employment Opportunity Commission (EEOC) or any state or city agency, or participate – including being a witness – in an employment discrimination proceeding, such as an investigation or lawsuit.

You Are Protected From Retaliation Even If There Was No Discrimination

As long as you had a good faith and reasonable belief that discrimination or harassment occurred, your employer cannot take any action against you for speaking out or participating in any investigation or proceeding. It does not matter if an agency or court determines that there was no discrimination.

If you speak out about discrimination and harassment in your workplace, the law protects you from retaliation.

How to File a Claim For Disability Discrimination

There are a number of options available to file a claim for disability discrimination in the workplace. You can file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), which handles violations of federal law, the New York State Division of Human Rights, which handles NYSHRL violations, or the New York City Commission on Human Rights, which is responsible for violations of NYC law.

If your claim falls under multiple laws, the three agencies that handle discrimination claims have what is called a “work-sharing agreement,” which means they cooperate with each other to process your claims. There is no need to file a claim with each agency. You just need to indicate that you want your claim “cross-filed” with the other agencies.

Learn how to file a discrimination claim, how to file an EEOC complaint, or contact a New York disability discrimination lawyer for help.

Comparing Disability Discrimination Laws

An ADA lawyer can also help file disability discrimination cases under New York law. Disability discrimination attorneys protect employees who experience disability discrimination in the workplace. 

Legal Remedies for Disability Discrimination in the Workplace

Disability discrimination provide several legal remedies. A New York disability discrimination lawyer can help recover monetary damages and back pay from your employer

• Back Pay: If you lost wage, bonuses, or benefits because of disability discrimination at work, the court can award back pay. This equals what you would have earned without the disability discrimination.
• Reinstatement: Employers who fire or deny a promotion because of disability discrimination may have to give their employee a job or promotion.
• Front Pay: Front pay helps make victims of disability discrimination whole. Courts award front pay to help discrimination victims return to the level of pay they had before their employer discriminated against them.
• Compensatory Damages: Victims of disability discrimination may have out-of-pocket expenses for therapy, a job search, and lost wages. Compensatory damages also cover emotional pain and suffering.
• Punitive Damages: Employers who violate disability discrimination laws may have to pay punitive damages to their employee as a punishment. New York State and New York City law punishes negligence, recklessness, or conscious disregard of worker rights with punitive damages.
• Liquidated Damages: Under certain laws, victims of discrimination also qualify for liquidated damages equal to the amount of back pay owed. However, disability discrimination cases grant compensatory and punitive damages rather than liquidated damages.
• Attorneys’ Fees and Costs: If you win, the court can order your employer to pay your disability discrimination attorney fees, including expert witness fees and court costs.

Potential Damages Under Different Disability Discrimination Laws

Disability discrimination in the workplace violates your rights. An ADA lawyer or disability discrimination lawyer can help if you experience workplace harassment based on your disability, employment disability discrimination, or another form of disability discrimination in the workplace.

Contact Charles Joseph, a New York disability discrimination attorney, for a free consultation.

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