Lawyer Monthly got back in touch with the Phillips & Associates team, and this month we’re speaking to Gregory W. Kirschenbaum, a seasoned litigation attorney who is zealous for his clients’ civil rights in their workplaces. He addresses disability discrimination and the rights of employees in New York when applying for shelter for their welfare.
What is Disability Discrimination in General? Why is it so common in the workplace?
Disability discrimination can be somewhat more complex to define than other forms of discrimination. We have found that navigating the maze of different definitions can lead to confusion among workers and employers about who a protected person is.
In general, workplace disability discrimination occurs when an employee (i) is treated poorly by their employer because of their disability or perceived disability, (ii) is exposed to a hostile work environment, and / or (iii) is not provided with reasonable accommodation .
The Americans with Disabilities Act (ADA) and New York State Human Rights Law (NYSHRL) require an employee to be or be perceived as having a disability and to be exposed to “serious or omnipresent” comments that adversely affect the work environment. However, under New York City Human Rights Law (NYCHRL), as long as the employee is exposed to more than “minor or minor inconvenience”, there may be viable entitlement to a hostile work environment.
The short answer is no, an employee cannot be dismissed outright because they have a disability or require reasonable accommodation.
In order to demonstrate prima facie discrimination based on disability (separated from a hostile work environment), an employee must show a number of things. First, the employer must be governed by the law (15 or more employees under ADA, four or more employees under NYSHRL and NYCHRL). Next, the employee must have or be perceived as having a disability recognized by the relevant law. Third, the employee must be able to perform the essential functions of his job with or without reasonable accommodation. Ultimately, the employee must suffer an adverse employment lawsuit because of his or her disability.
Nonetheless, there are hurdles to making a viable claim to discrimination on the basis of disability. For example, each statue defines a disability differently. For example, the ADA defines a disability as “a physical or mental impairment that severely restricts one or more of a person’s most important activities in life”. While this definition seems daunting, an important life activity has been further defined as “functions such as taking care of yourself, performing manual tasks … and working”. In contrast, according to NYSHRL and NYCHRL, almost anything can be a disability. In fact, according to both laws, an employee does not have to prove that an essential life activity is affected by his or her disability.
In addition, the employees must take reasonable precautions, unless the precautions represent “unreasonable hardship” for the employer. Inappropriate hardship is usually unreasonable disruption of the business operations of an employer or high costs. However, if an employer refuses to take reasonable accommodation without undue hardship, there may be a violation. Likewise, employers must engage in an interactive process and cannot simply refuse reasonable accommodation without giving a reason or allow the employee to change their request.
However, employers cannot plead ignorance of the law. If you are aware of an employee’s disability or perceive an employee to be disabled and treat them differently, there may be a violation.
Do you think that following the above, there are common disabilities that employers often disregard?
We have not found any particular type of disability that employers disregard more than others. Likewise, disability discrimination occurs across the spectrum of size and type of employers. Fortune 500 companies and small businesses alike cannot meet their responsibilities to their employees.
The longer answer, however, is a little more complex due to the whims of disability law.
What types of accommodation are available to employees in the workplace? What is the procedure for getting accommodation?
The type of accommodation available to an employee really depends on the employee’s disability, the type of work and the position held. For example, if someone has a back injury and has been told not to lift more than 15 pounds, this might be a reasonable precaution, unless that person’s job is to only move 15 pounds or heavier boxes each day to lift. Likewise, a modified keyboard or desk can be useful for someone with carpal tunnel syndrome. Of course, if an employee is suffering from depression, a modified keyboard or desk may not be an adequate solution. Whether or not accommodation is appropriate is a very factual question.
The first step in finding accommodation is usually to inform the company about the disability. We always encourage people to do this written. Thereafter, the company can request medical documentation to confirm the extent of the disability. This is pretty normal, and if a doctor diagnoses an employee with an illness, that doctor should write a note. However, it is important to understand that just because someone has a disability and their doctor says they cannot do something, it doesn’t necessarily mean that the employer has to consent or provide the desired accommodation.
However, as mentioned earlier, an employer must initiate an interactive process with an employee regarding their disability and their request for reasonable accommodation. Finally, as of October 15, 2018, NYCHRL requires an employer to enter into a “collaborative dialogue” and submit a final written decision approving or denying a request for reasonable accommodation.
Finally, as shown, cases of disability discrimination can be very complex, so it is best to consult a lawyer if you believe your rights are being violated.
Can you be fired because you have a disability or you are in need of reasonable accommodation? What if the condition prevents the employee from doing their job the way they used to be?
The short answer is no, an employee cannot be dismissed outright because they have a disability or require reasonable accommodation. An employer who directly dismissed an employee for any of these reasons is likely to have discriminated against or retaliated against the employee. The longer answer, however, is a little more complex due to the whims of disability law.
As already mentioned, an employer does not have to take reasonable precautions if the requested arrangement constitutes “undue hardship” for the employer. Again, this is a very factual investigation. However, the ADA, NYSHRL, and NYCHRL factors generally include the type and cost of the lodging requested, the impact of the lodging on the employer, the size and finances of the business, and the nature of the business.
However, there is good news for New York employees. According to the NYCHRL, “There are no accommodations (whether indefinite vacation time or other disability needs) that are categorically excluded from the universe of reasonable accommodations.”
However, if an employee suffers from a disability or wants accommodation that makes it impossible for him to carry out his essential tasks, he may face dismissal. For example, if a staff member is a professional wrestler, it is most likely not a reasonable accommodation to have a 15 pound weightlifting limit. That’s because lifting more than 15 pounds is an essential function of their job. In this case, the requested precaution may not be reasonable and the employee is threatened with dismissal.
Disability cases, in particular, are very factual and employees should always consult a lawyer if they believe they are being harassed, discriminated against, or not being given shelter.
Is there anything else that employees should be aware of?
People who (i) have worked for an employer for more than 1 year, (ii) worked more than 1,250 hours for the employer in the last calendar year and (iii) work for an employer with more than 50 employees within a 120 km radius to their job, may be covered by the Family Sick Leave Act (FMLA). The FMLA grants an employee suffering from a “serious illness” 12 weeks of unpaid leave, which can be taken all at once or intermittently. At the end of this leave, the employer must transfer the employee back to his previous job or to an equivalent job with equivalent pay and benefits.
In addition, New York State provides paid family leave, which includes absence from work due to a disability. The law passed in New York is one of the most progressive and still relatively new. Similar to the FMLA, New York State law provides a qualified worker with the right to return to the same or a comparable job after the end of their paid vacation.
Finally, as shown, cases of discrimination on the basis of disability can be very complex. So it is best to consult a lawyer if you believe that your rights are being violated.
Gregory Cherry Tree
PHILLIPS & EMPLOYEES
45 Broadway, Suite 620
New York, New York 10006
Mr. Kirschenbaum was named a “Rising Star” by New York Super Lawyers in 2017 and 2018 for his contributions to labor discrimination law. In 2018, Mr. Kirschenbaum was again awarded the “Lead Counsel” rating in labor law. In addition to his litigation experience, he has led numerous cases before state and federal courts, covering all types of discrimination cases as well as wage and hour claims. In 2015, he was a trial attorney who won a $ 2.2 million jury verdict on a racial discrimination case in the southern borough of New York.
 Dooley v JetBlue Airways Corp., 636 Fed. Anh. 16, 21 (2nd Cir. 2015)
 42 USC §12102 (1) (2018)
 42 USC §12102 (2) (2018)
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 Miloscia v. BR Guest Holdings LLC, 928 NYS2d 905, 913 (NY 1st App. Div. 2011)
 NY Admin. Code Sections 8-102, 8-107 (28) (2018)
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 Haight v. NYU Langone Med. Ctr., 2014 US Dist. LEXIS 88117, * 47 (SDNY June 27, 2014)
 29 USC §2614 (a) (1) (2018)