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AN INCOMPLETE HISTORY OF DISABILITY DISCRIMINATION

Since the beginning of human history people with disabilities have struggled for equal treatment in society. Until the 20th Century in America, people with disabilities were generally considered helpless and pitiable individuals unable to contribute to society in meaningful ways. They were often assumed to be abnormal or even weak-minded and were almost entirely excluded from the workplace.

Since the mid-1900s, people with disabilities have publicly advocated for the right to be treated as persons and not to be defined solely by their disabilities. People with disabilities have had to battle against centuries of biased assumptions, baseless stereotypes, and irrational fears. The stigmatization of disability resulted in the social and economic marginalization of generations of Americans with disabilities, and like many other oppressed minorities, left people with disabilities in a severe state of impoverishment and dependence for centuries.[1]

In the mid-20th Century, disabled veterans of World War I and II began to advocate for more equal treatment from the government for which they had sacrificed so much. When the civil rights movement began in the 1960s, disability advocates joined forces with other minority activists to demand equal treatment for people with disabilities. Id.  The Civil Rights Act of 1964 prohibited discrimination on the basis of race, religion, national origin, or gender, but people with disabilities were not included under such protection. By the 1970s, Congress began to pass legislation aimed at protecting persons with disabilities. In 1973, the Rehabilitation Act was passed and for the first time, the civil rights of people with disabilities were protected by law.  The Rehabilitation Act of 1973 (Section 504) provided equal opportunity for employment within the federal government and in federally funded programs, prohibiting discrimination on the basis of either physical or mental disability. Id.

After decades of public advocacy, the Americans with Disabilities Act, 42 U.S.C. §§12101 et seq. (ADA) was passed in 1990. This was the first comprehensive federal legislation designed to protect persons with disabilities from inequality and discrimination. The ADA intended to prohibit discrimination on the basis of disability in employment, services rendered by state and local governments, places of public accommodation, transportation, and telecommunications. Id. Under the ADA, most businesses were for the first time mandated by federal law to provide reasonable accommodations to people with disabilities in the workplace.

While the struggle for autonomy and dignity for persons with disabilities is ancient, the effort to pass laws to achieve equality for this minority group is fairly recent.  In an article in Forbes Magazine, Diversity Contributor Sarah Kim points out, “People with disabilities make up the largest minority group in America, yet they are too often the least accounted for when it comes to equal rights and anti-discrimination practices.”[2] While the signing of the ADA was an important step on the path to equality for persons with disabilities, the prejudices and bias that caused centuries of discrimination and marginalization have not instantly vanished.

Today, more than 43,227,000 Americans are persons with a disability. That is approximately 13.2 percent of our population. The right to participate in the employment market and to be part of the workforce is the key to achieving independence and basic equality for millions of Americans. In 2019, only 38.9 percent of the population of persons with disabilities were employed while 78.6 percent of the population of persons without disabilities were employed. This amounted to an employment gap of 39.7 percentage points.[3] Further, across all educational attainment groups, unemployment rates for persons with a disability were higher than those for persons without a disability. Id. One recent study found a full one third of survey respondents with disabilities indicated that they had experienced negative bias in the workplace such as feeling underestimated, insulted, excluded, or had coworkers appear uncomfortable because of their disability.[4] Almost half of these respondents (47%) also report that they would never achieve a leadership role in their company, regardless of their performance or qualifications. Id.

This article seeks to provide an overview of the laws that are intended to protect people with disabilities in the American workplace from discrimination and to explain the basics of how these laws work. In order to advocate for and to advance the rights of persons with disabilities, we must be aware of how the available legal protections operate in the American workplace.

OVERVIEW OF THE AMERICANS WITH DISABILITIES ACT

By far, the most significant federal law in the area of disability discrimination is the Americans with Disabilities Act (“ADA”). The ADA was signed into law on July 26, 1990. The ADA was widely championed at one time as the “emancipation proclamation” for people with disabilities and referred to as a “final proclamation that the disabled will never again be excluded” by Senator John McCain. [5]  More than 30 years after the ADA became the law of the land, however, many questions remain about the efficacy of the ADA in achieving equality for persons with disabilities. As noted above, a large employment gap (39.7%) exists between persons with and without a disability and a third of those working with a disability report some form of discrimination.

The ADA is a comprehensive civil rights law. It prohibits discrimination in a variety of contexts including employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA is divided into five parts called “titles.” Each title covers a different area. Title I deals with disability discrimination in employment. Title II covers state and local government programs. Title III addresses places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that provide for issues such as unlawful retaliation and attorney fees. This article will focus exclusively on Title I, employment.

Title I of the ADA applies to private employers with 15 or more employees, all state and local governments, employment agencies, and labor unions.  Title I of the ADA prohibits discrimination in all aspects of the employment relationship including applying for a job, hiring, firing, promotions, compensation, training, recruitment, advertising, layoffs, leave, employee benefits, company functions, and all other benefits, conditions, and privileges of employment. 42 U.S.C. § 12111(a). Further, it restricts questions that can be asked about an applicant’s disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless the accommodations result in undue hardship.

In the context of the ADA, “disability” is a specific legal term rather than a medical term. The ADA’s definition of “disability” is different from the definition of disability under some other laws. The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities. Major life activities include those affecting the human senses such as seeing or hearing and others like walking, talking, sleeping, working, and even reading. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The ADA definition of disabled also includes people who have a “record” of such an impairment, even if they do not currently have a disability. Having a “record” of a disability means that the person has a medical history of or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities, even though the person does not currently have an actually disabling condition.

The ADA also defines disability to include individuals who do not have an actual disability but are “regarded as” or “believed to have” a disability. This type of discrimination occurs when persons without disabilities may appear to be disabled or impaired in some way by a minor condition and their employer makes incorrect assumptions about that individual’s abilities and work capacity and alters the conditions of employment based on those false assumptions.

The ADA further makes it unlawful to discriminate against a person based on that person’s association with a person with a disability. For example, if an employee’s spouse is disabled and the employer cuts that person’s work hours without being asked to do so because she incorrectly believes that the employee needs more time off to care for her disabled spouse, that would constitute associational discrimination.

In order to be covered under Title I of the ADA, an employee must not only meet the definition of “disabled” but they must also be qualified for the job in question. There are two components to being qualified. First, you need to have the skill, experience, education, and other job-related requirements for the position. Second, you must be able to perform the essential functions of the job, with or without reasonable accommodation. A reasonable accommodation is any alteration of the conditions of work to allow a worker to complete the essential functions of the job. These accommodations could include modified hours, assistive devices, changes in work setting or equipment and even telecommuting in some cases. In other words, getting a reasonable accommodation could make you qualified for the job. The essential functions of a job are the basic or primary duties of that position.

In 2008, the ADA was amended by Congress. The Americans with Disabilities Act Amendments Act (ADAAA) was signed into law in 2008 and became effective on January 1, 2009. The ADAAA made a number of significant changes to the ADA including to the definition of “disability.” The changes in the definition of disability in the ADAAA apply to all titles of the ADA, including Title I, Employment. The ADAAA was needed because after the ADA was originally passed in 1990, courts at all levels began to adopt overly narrow interpretations of the definition of “disability.” This judge-made law weakened the protections that were intended by Congress for persons with disabilities under the ADA.

The ADAAA commands that the definition of a “disability” be interpreted in “favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of [the] chapter.” 42 U.S.C. § 12102(4)(A).  So the ADAAA was passed in 2008 and essentially overturned those court cases that narrowed the definition of disability. The ADAAA has significantly enhanced the protection of the ADA and it now helps a much larger group of employees who have suffered discrimination due to their disabilities. The net effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA. Vargas v. St. Luke’s-Roosevelt Hosp. Ctr., No. 16-CV-5733 (JPO), 2020 WL 2836824, at 5–6 (S.D.N.Y. June 1, 2020).

STANDARDS AND BURDENS OF PROOF IN ADA DISABILITY CLAIMS

While the ADA provides remedies for several different types of disability discrimination claims in the workplace, there are general principles on which all of these claims are evaluated. In order to understand the nature of a disability discrimination claim, one must understand a bit about how these claims are assessed by the courts that hear them. Who has the burden of proof? What type of evidence is required to prove a disability discrimination claim? How do court’s look at that evidence?

While there are a number of different bases for disability discrimination cases discussed here below, each of them falls into one of two general categories. One is intentional discrimination and the other is unintentional discrimination. Intentional discrimination is the most common type of discrimination. It occurs when an employer deliberately treats an employee less favorably than other employees based on her disability. The less favorable treatment may take the form of a failure to promote, failure to hire, harassment, failure to provide a reasonable accommodation for a disability, or any other deliberate act or failure to act. A smaller number of claims are based on unintentional discrimination. These cases involve discrimination that results from an employer’s unintentional use of policies or workplace standards that do not intentionally disadvantage persons with disabilities but which have a disproportionately negative or adverse effect on those persons. These are called “adverse impact” claims. The evidence and standards used to evaluate each type of claim is different.

Cases involving intentional disability discrimination based on disparate treatment are by far the most common. There are two different methods of proving intentional discrimination under a disparate treatment theory: 1) direct evidence and 2) indirect or circumstantial evidence. Direct evidence is usually either a document or the testimony of a first-hand witness that attests explicitly to the discriminatory intent of the employer. An example of direct evidence of discrimination might be testimony from a shift supervisor that a senior manager had instructed her to terminate all employees with any apparent disabilities. This type of evidence is of course very rare. “Direct evidence of discriminatory treatment is evidence showing a specific link between the alleged discriminatory animus and the challenged decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse action.” United States v. Hylton, 944 F. Supp. 2d 176, 187 (D. Conn. 2013) (internal quotations omitted), aff’d, 590 F. App’x 13 (2d Cir. 2014).  Depending on the type of evidence available, the burden of proof is allocated differently between the plaintiff employee and the defendant employer.

When there is direct evidence of disability discrimination but the employer argues that there is a valid and non-discriminatory reason for the action, the “mixed motive analysis” under Price Waterhouse v. Hopkins, 490 U.S. 228, 246, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268 (1989) is used. A “mixed-motive” case exists when an employment decision is motivated by both legitimate and illegitimate reasons.  In these cases, a plaintiff must demonstrate that the employer’s decision was motivated, at least in part, by one or more discriminatory factors.  The Plaintiff must submit enough evidence so that the trier of fact (usually a jury) could reasonably conclude that the adverse employment decision was made because of a discriminatory factor. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir.1992).

The critical inquiry in a mixed-motive case is whether a discriminatory motive was a factor in the employment decision at the time it was made. Miko v. Commission on Human Rights & Opportunities, supra, 220 Conn. at 205, 596 A.2d 396, quoting Price Waterhouse v. Hopkins, supra, 490 U.S. at 241, 109 S.Ct. at 1785. Under this method of proof, the plaintiff’s prima facie case (i.e. the basic facts supporting the claims) requires proof by a preponderance of the evidence that he or she is a person with a disability and that discriminatory motives played a substantial role in the employment decision. Once the plaintiff has established his prima facie case, the burden of production and persuasion shifts to the defendant. The defendant must then prove by a preponderance of the evidence that it would have made the same decision even if it had not taken the discriminatory factor into account.

Because direct evidence is rare, most disability discrimination cases must rely on indirect evidence. Indirect evidence, often referred to as “circumstantial evidence” is evidence that tends to prove a key fact by proving other facts from which the key fact may be inferred.  Indirect evidence of discrimination does not provide direct proof but uses other facts to demonstrate that according to logic, common sense, and experience, discrimination must have been the motive for the employer’s action. An example of indirect evidence would be testimony that a manager tasked with reducing the employer’s workforce of 200 workers by two employees selected the only two employees who have disabilities. While there could be other reasons why the manager took this action, the fact that she retained all of the workers without disabilities creates an inference that disability was the motivation for the selection of those two workers for termination. The law makes no distinction between the weight or importance to be given to direct or indirect evidence. The jury must weigh all of the evidence and the decision should be based on the preponderance of the evidence. The “preponderance of the evidence” is the sum total of facts that the jury believes are more likely true than not true.

When a plaintiff relies on indirect evidence to prove disability discrimination, our courts have developed a specific method of analyzing that type of evidence. “Because direct evidence of discrimination—a ‘smoking gun’ … attesting to a discriminatory intent…is typically unavailable, plaintiffs and courts ordinarily proceed by way of the three-part burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Holtz v. Rockefeller & Co., 258 F.3d 62, 76 (2d Cir. 2001). Under the McDonnell Douglas analysis, the plaintiff (employee) must bear the initial burden of raising a small amount of evidence sufficient to establish a basic claim of discrimination. This basic evidence is called the “prima facie case.”

In order to make a prima facie case for disability discrimination under the McDonnell Douglas analysis, the plaintiff must show evidence supporting four basic facts:

  • she is a member of a protected class (i.e. a person with a disability under the ADA);
  • she is qualified for her position and was performing adequately;
  • she suffered an adverse employment action (termination, lost promotion, etc.); and
  • the circumstances of the case give rise to an inference of discrimination.

The plaintiff’s burden at this stage of the case is not heavy. The fourth prong of the prima facie case can be satisfied by a variety of facts, including some evidence of the employer’s negative comments about others in the plaintiff’s protected group, more favorable treatment of others not in the protected group, or even the fact that the plaintiff was replaced by someone outside of the protected group. Id.

If the plaintiff succeeds in raising this basic evidence, the burden shifts to the defendant (employer) who must raise a basic legal justification for the adverse action it took against the employee. This basic legal justification is called a “legitimate non-discriminatory reason” for its action. The defendant’s burden is also not very heavy at this stage. While the defendant must produce some evidence to support its actions, the evidence does not need to be persuasive. The defendant may meet its burden by showing some evidence that the plaintiff was a poor performer or violated some company policies, for example, or that she was not qualified for the position in question.

Finally, if the defendant can produce a legitimate reason for its actions, the burden then shifts back to the plaintiff to prove that the defendant’s stated reason for the adverse action was in fact a “pretext” or “false reason” and that the true reason was disability discrimination. At this stage, the plaintiff’s burden becomes heavier as she must prove by a preponderance of the evidence (i.e. “more likely than not”) that the employer’s action was at least in part motivated by disability discrimination.  Davis v. New York City Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015).

The McDonnell Douglas analysis is an orderly method of presenting and examining evidence in the large majority of discrimination cases where direct evidence is unavailable. It is important to understand that even where a plaintiff employee cannot produce direct “smoking gun” evidence of disability discrimination, she can meet her burden under a McDonnell Douglas analysis by showing that the employer’s legitimate non-discriminatory reasons for the adverse employment action are in fact false. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). If the plaintiff offered evidence establishing a prima facie case and evidence showing that the employer’s articulated reason is pretextual, the jury may find for the plaintiff. Id. at 148. The plaintiff is not required to introduce additional evidence to prove pretext. Id. Evidence of pretext, however, is not enough on its own. Not only must the jury disbelieve the employer’s reason for its actions it must also believe the employee’s reasons (i.e. disability discrimination). Where the prima facie case combined with evidence of pretext provides evidence of intentional discrimination, the jury is free to conclude that the “legitimate reasons” for the employment action have been eliminated and it is more likely than not that the employer (who we generally assume acts with some reason) based her decision on an impermissible consideration of the employee’s disability.

TYPES OF DISABILITY DISCRIMINATION CLAIMS IN THE WORKPLACE

The ADA recognizes a number of different types or theories of discrimination in employment cases under the provisions of Title I. Over time, our courts have developed standards and criteria for analyzing and resolving these different forms of disability discrimination. The basic elements of each type of disability claim are summarized below.

Disparate Treatment

The ADA clearly prohibits employers from intentionally discriminating against any person with a disability because of that individual’s disability, perceived disability, or past record of disability. Employers may not discriminate at any stage of the employment relationship including  job applications, hiring, promotion, discharge, compensation, job training, and all other terms, conditions, and privileges of employment. 42 U.S.C. § 12111(a). Discrimination based on disparate treatment occurs when an employer treats a disabled employee or applicant differently than it treats non-disabled individuals because of the employee’s or applicant’s disability. This is the most common form of disability discrimination in the workplace.

The ADA also prohibits disparate treatment in the form of “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of [his or her] disability.” 42 U.S.C. § 12112(b)(1). This means an employer cannot make assumptions that pigeonhole a person with a disability. An employer cannot, for example, refuse to allow an employee in a wheelchair to travel for a training opportunity because he or she assumes the employee will have difficulty travelling.  EEOC regulations also prohibit separation of employees with disabilities into separate or segregated work areas. 29 C.F.R. § 1630.5.

In order to satisfy the McDonnell Douglas standard, the elements of a prima facie case of disability discrimination based on disparate treatment are: (1) the employee must be a person with a disability under the ADA; (2) the employee must be performing the job according to the employer’s legitimate expectations; (3) the employee must have suffered an adverse employment action; and (4) that similarly situated employees without a disability were treated more favorably. Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 685 (7th Cir. 2014).

The essence of a claim of disparate treatment is evidence that demonstrates that the person with a disability is treated differently than employees without a disability that are similarly situated.  Absent direct evidence of discriminatory intent, a plaintiff under the ADA can raise an inference of discrimination by demonstrating the disparate treatment of similarly situated employees. The employee with a disability must, however, show that he or she was similarly situated in “all material respects” to the individuals with whom he or she seeks to make the comparison.  Novick v. Vill. of Wappingers Falls, New York, 376 F. Supp. 3d 318, 342–43 (S.D.N.Y. 2019) and Kosack v. Entergy Enters., Inc., No. 14-CV-9605, 2019 WL 330870, 6–7 (S.D.N.Y. Jan. 25, 2019) (quoting Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003).

Disparate Impact

The ADA also prohibits discrimination based on what is called “disparate impact.” Disparate impact discrimination occurs when an employer uses employment tests, job descriptions, standards, or other selection criteria that appear to be neutral or non-discriminatory on their face, but which in practice, intentionally or unintentionally exclude or disadvantage qualified individuals with a disability in a disproportionate manner. 42 U.S.C. § 12112(b)(6). These tests or other criteria may only be used if the employer can show that they are necessary job-requirements for the position in question and consistent with a legitimate business necessity.

The essential feature of a disparate impact claim is that with this type of claim, an employer can be found liable for discrimination without a showing by the employee that the employer took intentional or deliberate action to discriminate. In other words, there is no need to prove that the employer intended that the policy or standard in question be discriminatory.  The US Supreme Court has held that, “Under a disparate-impact theory of discrimination, a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of the employer’s subjective intent to discriminate that is required in a ‘disparate-treatment’ case.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52–53, 124 S. Ct. 513, 519, 157 L. Ed. 2d 357 (2003) (Internal citations and quotations omitted).

In order to establish a prima facie case of disparate impact, it is not enough for a plaintiff simply to allege that there is a racial imbalance in the workplace. Instead, a plaintiff must identify a facially neutral employment policy or practice of the employer that has a significant disparate impact on persons with disabilities. See Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998). “The elements of a disparate impact claim are (1) a specific employment practice or policy, (2) a disparity between members and nonmembers of a protected class and (3) a causal relationship between the two. ” Chin v. Port Auth. Of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012). Further, the discriminatory policy or practice must have a significant effect on persons with disabilities. “The facially-neutral ‘policy’ must be something more than an isolated incident.” Schimkewitsch v. New York Inst. of Tech., No. CV195199GRBAYS, 2020 WL 3000483, at 4 (E.D.N.Y. June 4, 2020).

Under certain circumstances, standards that impose a disparate impact on persons with disabilities may be justified by the employer. The plain language of the ADA illustrates the circumstances when a standard that has a disparate impact may be permitted:

It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter. 42 U.S.C. § 12113(a).

This exception to the rule against policies with a disparate impact on employees with a disability is called the “business necessity defense” to a disparate impact claim under the ADA.  In order to prove such a defense, an employer bears the burden of showing that the qualification standard is (1) “job-related,” (2) “consistent with business necessity,” and (3) that “performance cannot be accomplished by reasonable accommodation.” Id. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 995–97 (9th Cir. 2007).

Statistical evidence which can reveal the effect of a discriminatory policy or practice is often the keystone of a disparate impact claim, since it is the pattern or practice that is being challenged, rather than one or more discriminatory acts. Plaintiff must identify a specific, facially neutral practice that results in the statistical disparity. Maniatas v. New York Hosp.-Cornell Med. Ctr., 58 F. Supp. 2d 221, 227 (S.D.N.Y. 1999). Because the factual issues, and therefore the character of the evidence presented, differ in disparate impact claims as compared to disparate treatment claims,  courts carefully distinguish between these two theories.

Hostile Environment/Disability Harassment

Most federal circuit courts have recognized causes of action under the ADA for disability-based harassment in the workplace.[6]  A disability harassment or hostile environment claim occurs when an employee with a disability is subjected to insults, ridicule, verbal cruelty, bullying, or other forms of disturbing conduct or intimidation that are so serious and/or frequent that they make the work environment intolerable.

To prevail on a hostile work environment/harassment claim, an employee must demonstrate: “(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment,’ and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002).  The targeted employee must subjectively perceive the conduct at issue to be abusive. Further, the conduct must also be objectively severe and pervasive enough to satisfy a neutral observer that the work environment was hostile and abusive. Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019).

The abusive conduct may be severe or pervasive but need not be both. Even a single isolated act may be so serious that it requires the conclusion that the terms and conditions of employment were altered. Id.  An employee with a disability alleging a hostile work environment claim under the ADA must demonstrate either that a single or small number of incidents were extremely severe or that a series of incidents were so frequent and pervasive that the work environment was altered. Courts look to the totality of the circumstances to determine whether a plaintiff has met this burden, including proof of the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a simple offensive comment; and whether it unreasonably interfered with [the plaintiff’s] work. Id.

Failure to Accommodate Disability

Discrimination in violation of the ADA includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. The ADA allows a qualified individual with a disability to request a “reasonable accommodation,” that is, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 42 U.S.C. § 12112(b)(5); 29 C.F.R. § 1630.2(o). For example, an accommodation request may seek a physical modification to an employee’s equipment or work space, such as modified chairs or lighting; purchase of software or assistive devices, such as Braille readers or lifting devices; alterations to work schedules or locations; medical leave during a period of incapacity from work; a specialized training process; modifying or granting exceptions to neutral policies (such as those regarding leaves of absence, part-time work, or eating on the job); transfer to an open equivalent position; or other request which helps the individual perform their duties or enjoy equal benefits and privileges of employment as enjoyed by other employees.

An individual need not use “magic words” when requesting a reasonable accommodation, or even mention the ADA, but must give the employer sufficient information to enable the employer to potentially identify the request as a request to accommodate a physical or mental impairment. The employer then has an obligation to engage in an “interactive process” with the employee, to determine if the individual is in fact covered by the ADA and, if so, what types of accommodation would satisfy the individual’s needs. The employer may generally request that the employee or his or her doctor provide relevant medical information to support their claim of disability.

An employer may fulfill its obligation by providing the disabled individual with an alternative accommodation to the one requested, so long as the alternative accommodation is reasonable and effective in meeting the individual’s needs. An employer need not provide a request for accommodation if the accommodation would cause it an undue hardship, e.g. a significant financial burden or interruption of its business operations, considering the size and nature of the employer. An employer’s failure to give a disabled individual a reasonable accommodation where such failure was the fault of the employer, and where there was no legitimate undue hardship represents a form of disability discrimination under the ADA. The employer is obligated at a minimum to engage in the interactive process and to suggest reasonable accommodations that do not pose a hardship if they are available. The employers’ obligation to provide accommodation is a continuing obligation. What is required may change over time as circumstances and conditions change.

An ADA plaintiff can establish a prima facie claim of discrimination based on the failure to accommodate a disability by proving the following elements: (1) employee is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of her  disability; (3) with reasonable accommodation, employee could perform the essential functions of the job at issue; and (4)the employer has refused to make such accommodations or refused to participate in the interactive process. McMillan v. City of New York, 711 F.3d 120, 125–26 (2d Cir. 2013) (citation omitted); and Novick v. Village of Wappingers Falls, New York, 376 F.Supp.3d 318 (2019).

Once a plaintiff has established a prima facie case under McDonnell Douglas, the burden shifts to the defendant to show: (1) that making a reasonable accommodation would cause it hardship, and (2) that the hardship would be undue or extreme. The plaintiff must raise sufficient evidence to raise the inference that the employer’s failure to accommodate the request was motivated by discriminatory intent. Id.

On the issue of reasonable accommodation, the plaintiff bears only the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits. With regard to the reasonableness of a proposed accommodation, a plaintiff bears only a light burden of production that is satisfied if the costs of the accommodation do not on their face obviously exceed the benefits. Once a plaintiff has identified a facially reasonable accommodation, the defendant bears the burden of persuading the factfinder that the plaintiff’s proposed accommodation is unreasonable. Id.  In deciding whether a proposed accommodation is reasonable, courts look to a number of factors including the cost of the accommodation, the size and financial resources of the employer, and the disruption or impact the accommodation will have on the workplace.

Regarded as Disabled

As discussed above, one of the definitions of a person with a disability under the Act includes individuals who do not have an actual disability but are “regarded as” or “believed to have” a disability. This definition makes it a violation of the Act when persons without disabilities may appear to be disabled in some way and the employer makes incorrect assumptions about that individual’s abilities and alters the conditions of employment based on those false assumptions.

This type of “regarded as disabled” claim is not exactly a separate category of claim. By defining disability to include “regarded as disabled” individuals, the ADA seeks to prohibit the irrational fears and assumptions inherent in disability discrimination. A person regarded as disabled may bring claims for disparate treatment, harassment, or retaliation. The key distinguishing factor is that the employee is not in fact disabled but only considered or believed to be disabled in some way. Because this type of claim has its own peculiar conditions, it is treated separately here.

Under the changes made by the ADAAA in 2008, a person is regarded as disabled if the individual establishes that he or she has been subjected to an adverse employment action because of an actual or perceived physical or mental impairment, whether or not the impairment actually limits or is perceived to limit a major life activity. In other words, an employee plaintiff is only required to present evidence that the employer defendant believed that he had a mental or physical impairment. The employee need not present evidence as to how or to what degree the employer believed the impairment affected him or her. Hilton v. Wright, 673 F.3d 120, 128–29 (2d Cir. 2012).

Disability Retaliation

The ADA prohibits retaliation against an employee for reporting, opposing, or complaining about treatment which he or she reasonably believes represents disability discrimination or harassment. This includes reporting possible disability discrimination to one’s supervisor or human resources department, or providing information during an internal investigation into another employee’s disability complaint. 42 U.S.C. § 12203(a). These activities are “protected activities” under the ADA. An employee is covered by the anti-retaliation provision of the ADA regardless of whether he or she is opposing discrimination against him or herself, or discrimination against a coworker. The ADA also prohibits retaliation against an employee for participating in a proceeding asserting ADA rights, i.e. filing an EEOC charge, filing a lawsuit, or testifying in a deposition.

Prohibited forms of retaliation include termination, demotion, denial of a promotion, denial of a bonus or other job benefit, poor performance review, being placed on a performance improvement plan, intimidation, threats, or even adverse treatment outside of the workplace. In order to prove that the adverse action was retaliatory, the employee must ultimately demonstrate that it was his or her reporting of possible disability discrimination, rather than some other reason such as poor performance, reorganization, layoffs, personality clashes, or violation of company policies that caused the adverse action.

Under the McDonnell Douglas analysis an employee alleging disability retaliation must show that: (1) she engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

In order to establish the last element of a prima facie case of retaliation, a plaintiff must show that the allegedly adverse actions occurred in circumstances from which a reasonable jury could infer retaliatory intent. Proving intent is necessary because retaliation is a form of intentional discrimination. Courts have routinely held that a close temporal relationship between a plaintiff’s participation in protected activity and an employer’s adverse actions can be sufficient to establish causation. This is a way to establish the requisite causation by indirect means. While periods of several months have been held to be sufficiently close to raise a discriminatory inference, periods of up to a year or more have been frequently held to be too remote to raise the inference.

Once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged employment decision. If a defendant meets this burden, the plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer’s explanation is merely a pretext for impermissible retaliation. Id. In other words, the employee must demonstrate that the non-retaliatory reason offered by the employer is a sham or an excuse for disability discrimination. Id.

Associational Discrimination

The ADA bars discrimination against an employee for her association with a person with a disability. See 42 U.S.C. § 12112(b)(4). For example, courts have ruled that terminating an employee based on the fact that they are a primary caregiver for a child with a disability is actionable under the ADA. The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Id.

To state a prima facie claim for associational discrimination under the ADA, a plaintiff must allege: “1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer’s decision.”  Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016).

Some common examples of associational discrimination that satisfy the fourth element are: 1) “expense,” in which an employee suffers adverse action because of his association with a disabled individual covered by the employer’s insurance, which the employer believes (rightly or wrongly) will be costly; 2) “disability by association,” in which the employer fears that the employee may contract or is genetically predisposed to develop the disability or condition of the person with whom he is associated; and 3) “distraction,” in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person. Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir.2004).

The regulations state that the association provision of the ADA covers “family, business, social or other relationship or association” between the qualified employee and an individual with a known disability. See 29 C.F.R. § 1630.8. Thus, this provision “is not limited to those who have a familial relationship with an individual with a disability.” 29 C.F.R.App. § 1630.8. These provisions were intended to cover situations where a qualified individual was discriminated against because the employer assumes, without foundation, that the employee’s association with a person with a disability will be a distraction, a hazard, or an expense for the employer.

State Disability Discrimination Laws

While the ADA is the primary federal law that protects employees with disabilities in the workplace, there are many anti-disability discrimination laws on the state and local level. Some are similar to the ADA in that they are also civil rights laws designed to address disability discrimination. Other laws are designed to establish specific benefits or entitlements for people with disabilities that go beyond those offered by the ADA, such as expanded remedies or increased applicability.

Some states have their own disability rights laws that complement or expand those provided under the ADA. Some states have alternate definitions (usually more broad) of who is protected or what entities are required to comply, as well as different requirements or prohibitions. Notably, while the ADA covers employers with 15 or more employees, most of the state disability discrimination laws apply to smaller employers which means they cover a much wider range of businesses and organizations than the ADA. Some states cover employers with only one employee!

Many states provide an administrative agency to administer and enforce claims of violations of their anti-discrimination laws. Connecticut for example, has the Connecticut Commission on Human Rights and Opportunities (“CHRO”) which is the state agency responsible for the enforcement of civil and human rights.  Some states provide a similar agency, either mandatory or voluntary, to assist with investigation and enforcement of their anti-discrimination laws. States may provide different remedies than those available under the ADA, such as additional damages or criminal penalties for violations. It is important to note that where state anti-disability discrimination laws are used as the basis of an employment claim, there may be administrative procedures or deadlines that must be observed in order to state a viable claim of discrimination under state law.

When a state law conflicts with the ADA, the state law is generally preempted by the federal law. Thus, for example, if a state law allows an employer to use employment standards that have a disparate impact on persons with disabilities without demonstrating a legitimate business necessity  to justify the standard, that portion of the state law is preempted or overridden by the specific provisions of the ADA which require a BFOQ. However, if a state law provides the same or additional protections for employees facing unnecessary job standards as those provided under the ADA, then the employee with a disability may use the state law in addition to the ADA. Thus, for example, if a state law includes the same requirement as the ADA but also allows an individual who has encountered discrimination to get additional compensation, the individual may pursue both the ADA claim and the state law claim.

Employees who may be the target of illegal disability discrimination should consult an experienced employment lawyer as soon as possible to explore the various options for raising claims of disability discrimination under their state or federal law or both.  For example, while federal law limits the total amount of compensatory and punitive damages on ADA claims to a maximum of $300,000.00, many state anti-discrimination laws allow recovery for these damages with no limit or cap on the damages. Thus, the decision as to which laws to apply to your potential claims could make a significant difference in whether and how much the employee recovers.

PROVING DAMAGES IN A DISABILITY DISCRIMINATION CASE

Once a court determines that an employer discriminated against an employee in violation of the ADA, the question becomes: How much should be awarded in damages to compensate the employee with a disability for the losses suffered as a result of the illegal discrimination? There are several categories of damages that may be recovered in workplace disability discrimination cases. The damages a court can award depend on the type of claim and the negative economic and emotional impact the discrimination had on the employee. The purpose of a damages award is generally to put the individual back into the same place they would have been had they not been the target of disability discrimination.

In most state and federal discrimination cases, the employee may be entitled to receive the following types of remedies: back pay; front pay; lost benefits such as health, vacation, sick leave, and pension; injunctive relief, reinstatement to their former position; reasonable workplace accommodations; compensatory and punitive damages and reimbursement of attorney’s fees. A number of factors determine the type and amount of damages awarded in a disability discrimination case. A brief summary of these damages follows.

Back Pay and Mitigation of Damages

An award of back pay is the most common category of damages granted in disability discrimination cases. Back pay is a favored category of damages because it is seen as being the most easily calculated. “Reinstatement and back pay involve the least amount of uncertainty because, in effect, they reestablish the prior employment relationship between the parties[.]” (Internal citations omitted.) Vera v. Alstom Power, Inc., 189 F. Supp. 3d 360, 390 (D. Conn. 2016).

Back pay includes all of the wages, salary, bonuses, commissions, and benefits lost because of the unlawful discrimination. Usually this is applicable in cases involving termination. Back pay awards are designed to compensate or make the employee “whole” for what she would have earned had she not been discriminated against. Back pay is calculated from the date of the employee’s termination until the date the court enters judgment. Back pay includes much more than just salary or wages. It includes interest, overtime, shift differentials, and raises the employee would have received would have received.

The value of employer-provided benefits lost because of the discrimination is also part of a back pay award. An employee plaintiff can recover for unused earned vacation time plus vacation time that would have been accrued up to the date of the court’s decision. If your company allots a certain number of sick days per year, you are entitled to the value for the number of unused sick days you have earned. If the company pays for health or life insurance benefits, you should receive the value of the premiums or benefits the company would have paid had you continued to be employed. Your former employer may also be required to pay any unreimbursed medical expenses which would have been covered by the employer’s health plan. Pension benefits that you have earned or accrued and adjustments to pension benefits made during the time period of your case would also be included. Essentially, anything that was part of the compensation and benefits provided by your employer may be part of the back pay award.

An employer may avoid a back pay award to the extent that it can demonstrate that the employee failed to mitigate or reduce her own damages. This reflects the plaintiff’s obligation to lessen the impact of the damages she sustained to the extent that she is reasonably able to do so. This duty is called the “duty to mitigate damages.” A defendant employer may show that a plaintiff failed to mitigate her damages by proving that: (1) suitable work existed for the employee, and (2) that the employee did not make reasonable efforts to obtain it. Vera, at 384. An employer is relieved of the duty to meet these two requirements if it can prove that the employee made no reasonable efforts to seek employment. Id.

Although some degree of uncertainty is inherent in determining a back pay award, courts generally resolve that uncertainty against the party that committed the illegal discrimination. The duty to prove failure to mitigate damages is on the defendant.

Front Pay or Reinstatement

Along with back pay, reinstatement of the employee to her previous position is the preferred remedy in employment discrimination cases. See, Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 193 (2d Cir.2011) (“[O]ur Circuit favors reinstatement as a remedy in employment cases generally.”). Courts often see reinstatement as the best choice because this accomplishes the goals of providing make-whole relief for a prevailing plaintiff and it discourages future misconduct by employers.

While reinstatement is favored, our courts have recognized that it is sometimes impractical. Reinstatement is not always a realistic remedy because of the animosity that often occasions a contentious separation of employment. Further, in some cases, by the time a trial takes place there is no longer a position with the employer to which the plaintiff could reasonably be reinstated. In such cases, courts often award what is known as “front pay” in lieu of reinstatement. While “back pay” looks back in time to the date of termination and compensates the employee for lost wages and benefits until the date of the court’s judgment, “front pay” looks forward in time and compensates the employee for the wages and benefits that will be lost as a result of the illegal discrimination from the date of the judgment until some date in the future. Often front pay is awarded in lieu of reinstatement where the court notes evidence that the employer exhibited “hostility or outrage” in response to the employee’s claim of discrimination. es[.]” Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir.1984). As many experienced employment litigators would attest, “hostility or outrage” is the most common employer reaction to discrimination claims by employees.

“In deciding whether an award of front pay is appropriate, a court should consider (1) whether reinstatement [is] either impossible or impracticable (2) whether the plaintiff has a reasonable prospect of obtaining comparable employment; and (3) whether the calculation of front pay would involve undue speculation.” Shannon v. Fireman’s Fund Ins. Co., 136 F. Supp. 2d 225, 233 (S.D.N.Y. 2001) (citing Whittlesey, at 728-29. In cases where the plaintiff mitigated her damages by finding comparable work, there is usually little need for undue speculation.

A front pay award is often necessary because in many cases the illegally discharged employee has no reasonable prospect of obtaining comparable alternative employment, notwithstanding diligent efforts by the plaintiff to mitigate damages. The challenge with front pay awards is determining how long into the future the employee should be compensated for this loss of gainful employment. Most courts are unwilling to award long periods of front pay because this necessarily involves a great deal of speculation. Often a period of one to three years of front pay might be reasonable under certain circumstances, but courts are generally unwilling to award front pay for long periods of time such as five or more years.

Compensatory Damages and Emotional Distress

In cases of intentional disability discrimination, (i.e., not disparate impact) compensatory damages may be awarded.  Compensatory damages pay or “compensate” victims for out-of-pocket expenses caused by the discrimination and for any emotional harm suffered. Out-of-pocket expenses may include items such as costs associated with a search for a new job or medical expenses related to the termination. Emotional harm may include damage for things like mental anguish; loss of the enjoyment of life; a diagnosed psychiatric condition such as depression or anxiety; sleeplessness; reputational harm; and even strained relationships with family.

“[C]ompensatory damages are ‘intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct….’ ” Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 52 (2d Cir. 2015)(quoting Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). The goal is to ameliorate the effects of the discrimination to the extent possible. The ADA provides that the same remedies available to discrimination plaintiffs under Title VII apply to any person alleging intentional discrimination on the basis of a disability. See 42 U.S.C. § 12117(a). Once a plaintiff proves that unlawful disability discrimination played some part in the adverse employment decision, the plaintiff is entitled to relief including compensatory damages, declaratory judgment and injunctive relief. Muller v. Costello, 997 F. Supp. 299, 304–05 (N.D.N.Y. 1998), aff’d, 187 F.3d 298 (2d Cir. 1999).

While out-of-pocket expenses are usually easy to calculate, compensatory damages for emotional distress present significant challenges for courts and litigants. The amount of compensatory damages should be calculated based on the unique facts of each case. Courts often consider factors such as the duration, severity, consequences, and physical manifestations of the emotional distress as well as any medical treatment that the employee underwent as a result of her anguish. Although a plaintiff need not submit medical treatment evidence to establish a claim of emotional distress, she must present some evidence of concrete emotional harm. To receive emotional distress damages you must show that the employer’s discrimination was the cause of the emotional harm and not some other disturbing life event.

How does one prove that she suffered emotional distress in a disability case? The four primary methods of proving emotional distress damages are: (1) for the employee to testify about how the discrimination affected her psychological health; (2) for the employee’s friends, co-workers and family to testify about the emotional impact of the discrimination as they observed it; (3) for a physician, or other mental health professional testify about the treatment provided to the employee for the mental harm; or (4) for an expert witness to testify as to the psychological effect of the discrimination on the employee.

While it is not necessary to have a doctor or psychologist testify at trial to prove emotional distress damages, it is often helpful in proving significant emotional harm to the plaintiff. Evidence of a professional diagnosis of a psychological condition or evidence of treatment and medications illustrates the effects of the emotional distress. Expert testimony is often helpful to distinguish the emotional harm caused by the employment discrimination from harm caused by other life events such as unrelated traumatic experiences. indeed, an employee does not even have to show that they went to see a doctor, psychologist, or other counselor. In general, large emotional distress awards depend on very strong evidence including medical evidence.

It is important to understand that a plaintiff seeking significant emotional distress damages under the ADA is placing her own mental health history at issue in the litigation. Thus, the employer will likely try to prove that any emotional distressed suffered by the plaintiff was actually caused, in whole or in part, by factors besides discrimination at work such as traumatic life events. This means that defendant employers are permitted to some extent to seek discovery of an employee’s mental health and personal history (divorces, addiction, other workplace problems) to defend against the claims of emotional distress. This loss of privacy for very sensitive medical and personal information often discourages employees from raising emotional distress claims.

Punitive Damages and Statutory Damage Caps

Under federal law, an employer may be subject to an award of punitive damages for violating the ADA if it has acted with, “malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). Punitive damages, as the name suggests, are damages intended to “punish” or “penalize” the defendant. The purpose of his category of damages is to allow courts to discourage discrimination by providing additional financial penalties for the most egregious violations of the ADA. Punitive damages are separate and distinct from back pay, front pay, or even compensatory damages.

Punitive damages only apply where a plaintiff can successfully demonstrate that the employer who committed the discrimination acted with some knowledge of her wrongdoing.  Courts have explained that punitive damages provide awards based on an employer’s state of mind. The employer must have some awareness that it is (or may be) acting in violation of federal law in order to be found to be acting with, “reckless indifference.” Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 235–36 (2d Cir. 2000).  The reckless indifference standard is often difficult to meet. It is a challenge to ascertain evidence of what one or more decision makers at an employer were aware of at the time of the adverse employment action.

In addition to being difficult to prove, the recovery for punitive damages under the ADA is strictly limited.  A federal statute caps the combined total of compensatory and punitive damages recoverable under the ADA based on the size of the employer. The four caps on punitive and compensatory damages are:

$50,000 for employers with 15-100 employees;

$100,000 for employers with 101-200 employees;

$200,000 for employers with 201-500 employees; and

$300,000 for employers with 501 or more employees.

The damage award caps are applied to each plaintiff in a case. These statutory damage caps save defendant employers massive sums by allowing them to avoid large jury awards in disability discrimination cases. Further, punitive damage awards are often looked upon with skepticism by our courts. Punitive damage awards are often reduced on appeal even when they are within the statutory limits set forth in 42 U.S.C. § 1981a(b)(1).  Thus, proving and keeping a punitive damages award in an ADA case is no small feat.

Attorney’s Fees and Costs of Litigation

The ADA provides that a district court, “in its discretion, may allow the prevailing party… a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205.  Our courts are granted a significant degree of discretion in making determinations regarding awards of attorney’s fees and litigation expenses at the end of an ADA case. Because of this broad discretion, the rule is not as simple as: “The winner gets their attorney’s fees paid for.”

First, where a plaintiff prevails in an ADA case, the recovery of attorney’s fees and expenses is far from a foregone conclusion. A prevailing plaintiff must prove that their attorney’s fees represent a “presumptively reasonable fee” under the circumstances. Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). The court determines what a “reasonable” number of attorney hours spent on the case would be given the matters involved and multiplies that by the number it determines to represent the “reasonable” hourly rate for the skills and experience of the lawyers involved. This figure may not reflect much of the work actually performed and billed by the plaintiff’s lawyer.

Often litigation involves raising claims at the beginning of a case that turn out to be unsupported by the evidence at trial. In those cases, for example, the court would deduct all of the legal fees devoted to prosecuting the failed claims, even though it may have been prudent to include them at the beginning of the case. The party seeking attorney’s fees carries the burden of establishing that the number of hours for which compensation is sought is reasonable. Presumey v. Town of Greenwich Bd. of Educ., No. 3:15CV278 (DFM), 2018 WL 2694442, at 6–7 (D. Conn. June 5, 2018). Courts routinely exclude any fees that they see as, “…excessive, redundant or otherwise unnecessary…” as well as hours dedicated to any unsuccessful claims. Id.

Next, defendants are rarely granted an award of attorney’s fees even where they are the prevailing party.  Courts will award fees to defendants in ADA cases only where the plaintiff’s claim was: “…frivolous, unreasonable, or groundless, or … the plaintiff continued to litigate after it clearly became so.” (Internal citations omitted.) Parker v. Sony Pictures Ent., Inc., 260 F.3d 100, 111 (2d Cir. 2001). Thus, any party to an ADA claim should be aware that while the law provides for recovery of attorney’s fees, the recoupment of anything close to the actual amount of the legal fees expended at the end of the case is an uncertain proposition at best.

WHAT TO DO IF YOU ARE THE TARGET OF DISABILITY DISCRIMINATION AT WORK.

Beware the Signs of Disparate Treatment

Disparate treatment in the workplace is sometimes the first sign that you are being targeted with disability discrimination. It is important to be vigilant for the signs of disparate treatment in the workplace in order to combat disability discrimination. You should note the following:

Termination

Undeserved Termination: If you are terminated without a good reason, for a reason that does not make sense, under false pretenses such as a phony performance review, or for a reason that you do not believe.

Replaced by a Worker Without a Disability: If you are terminated and your job is filled by a worker without a disability. If the company tells you that your position was “eliminated” but the job is actually being done by a person without a disability.

Suspicious Reduction In Force: You were laid off along with a number of other workers or in a large-scale “reduction-in-force” and most of the people selected for lay-offs are workers with disabilities.

Unequal Discipline/Privileges

Discriminatory Policies: Company policies that have a negative impact on employees based on their ability status.

Unfair Discipline: Where workers with disabilities are disciplined or written up for certain offenses while able workers are not written up for the same or similar offenses.

Favoritism: Workers with disabilities are excluded from meetings or workplace gatherings, or are given worse assignments, resources, and equipment.

Loss of Duties: Job duties are taken away from a worker with a disability and given to an employee without a disability without good cause or to make it, “easier for you.”

Unfair Evaluation: Workers with disabilities are held to different standards of performance than workers without disabilities. Performance reviews suddenly decline for no reason.

Promotions/Training

Failure to Promote: If you do not receive or are not considered for promotions due to disability or are passed over for promotion in favor of an employee without a disability who is equally or less qualified than you.

Failure to Train: You are denied a training opportunity or a chance to develop new skills on the job while employees without disabilities are afforded such opportunities for growth. Often skills training is denied to workers with disabilities who are considered less capable than workers without disabilities.

Hiring/Advertising

Refusal to Hire: If you are not hired for a position for which you are qualified, while workers without disabilities who are less qualified are hired for the job. Hiring employers may say they are looking for a candidate with “more versatility,” or that they prefer someone with more “growth potential.”  These terms are often code for disability prejudice.

Job Advertisements: You are not hired for a job which contained a physical requirement  which you did not meet and which is not reasonably required for the position. The ADA makes discrimination in hiring based on physical standards illegal except where the standard is job related, consistent with business necessity, and required to prevent employees from imposing a direct threat to the health and safety of others in the workplace.

Harassment/Retaliation

Disability Based Harassment: If your colleagues or superiors make frequent jokes or comments about your disability, play disability-based pranks, or otherwise treat you differently and single you out because of your disability. Ableist comments may not be directed squarely at you but may be pervasive in the workplace. If you are exposed to these comments they may be discriminatory and harassing.

Retaliatory Actions: After reporting some other form of disability discrimination, the employer begins supervising you unnecessarily, writing you up for petty offenses not enforced against other workers, or changing your work duties or conditions.

Keep Detailed Records and Notes:

When it comes to proving any kind of discrimination, the devil is in the details. Keep detailed notes of meetings, interactions, conversations, or any event that may bear on your changing situation at work. If you report an incident that may have been discriminatory to HR or to a supervisor, follow up with an email memorializing the report and print it out and keep a copy for your records. If remarks are made regarding persons with disabilities at a company training session, write down the date, time, the names and titles of those present, and a precise account of what was said and how people reacted. If a group of workers without disabilities are selected for a training program while equally qualified persons with a disability were not selected, note the date of the announcement, who was selected, who made the decision and what the stated criteria were for selection. If an HR partner discusses “accommodations” with you when you did not ask about them, write down all of the details of the conversation and send a thank you email confirming the meeting took place and that accommodations were discussed but had not been requested.  Carefully document information regarding your performance and achievements at work because alleged “poor performance” is often a pretextual reason for firing workers with disabilities.

Report Suspected Incidents of Disability Discrimination to HR:

Ignoring the problem will not help. Report instances of ableism or discrimination to HR promptly. Do so in writing whenever possible and cite the company’s anti-discrimination policies if applicable. Create a paper trail. Send emails memorializing the report and keep copies. Follow up and be sure you avail yourself of all of the rights granted under company policies to receive a report of the investigation if any or any other documentation of your complaint. If you are not satisfied with the results speak to someone else in your reporting chain at the company and document that interaction as well. Establishing a properly documented trail of complaints can help establish a solid claim.

Invest in Career Growth:

Common stereotypes of workers with disabilities are that they are less capable and diligent than their colleagues. Defy that stereotype and document the activity. Try to be the best employee you possibly can be. (See article: Mark Carey, ) Stay on target with performance goals and deadlines. Keep on top of workplace and industry trends and technology. Invest in your own training and professional development. Keep up with company changes and industry standards. Keep records of all of this activity to demonstrate your professional currency should you become the target of ableist employment actions. Defy the stereotypes!

Seek Legal Counsel As Soon As Possible:

Seek the advice of an experienced employment attorney as soon as you suspect that you may be a target of disability discrimination. An attorney can help you more before the situation comes to a head and can be available to guide you if you are terminated or demoted. The sooner the better!

File Agency Claims Promptly:

If you are the target of disability discrimination be sure that you properly file your claims of discrimination with the nearest office of the EEOC as well as the appropriate state anti-discrimination agency. If you have an attorney she will take care of that but you should be aware that there are strict time limits for filing age discrimination claims. If you fail to meet any state or federal filing deadline you could lose your right to bring certain claims.

As with all types of illegal employment discrimination, disability discrimination can be devastating and overwhelming when you are the target. There is no substitute for skilled legal counsel when you are the subject of unlawful employment practices.

Call Carey & Associates, P.C. today at 203-255-4150 or email to info@capclaw.com for help with any suspected disability discrimination in your workplace. We can help!

[1] A Brief History of the Disability Rights Movement; ADL.Org,  https://www.adl.org/education/resources/backgrounders/disability-rights-movement

[2] Kim, Sarah, The Disappointing Truth About Employment Climate For Disabled Workers, Forbes Magazine, Feb 25, 2020, (Contributor Diversity, Equity & Inclusion).

[3] Bureau of Labor Statistics, “Persons With A Disability: Labor Force Characteristics-2020.”

[4] ADA National Network; “Adata.org”; https://adata.org/research_brief/experience-discrimination-and-ada

[5] Maroto, Michelle and Pettinicchio, David; “Twenty-Five Years After The ADA: Situating Disability In America’s System of Stratification;” Disability Studies Quarterly, Vol 35, No 3 (2015).

[6] See, inter alia, Mannie v. Potter, 394 F.3dv 977, 982 (7th Cir. 2005); Lanman v. Johnson County, 393 F.3d 1151, 1155 (10th Cir. 2004);  Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 (4th Cir. 2004); Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019); Shaver v. Indep. Stave Co., 350 F.3d 716, 720 (8th Cir. 2003); Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 232–35 (5th Cir. 2001).

[7] The ADA provides: “The term ‘reasonable accommodation’ may include–(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9) (emphases added). Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 469 (2d Cir. 2019).

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