DISABILITY DISCRIMINATION

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McKinley Onua works with individuals with disabilities in remedying discriminatory conduct in employment. The firm assists clients, organizations and employers in creating an environment that is accommodating to these individuals. If an acceptable solution is not reached, McKinley Onua seeks redress in federal, state or local courts and agencies and will seek maximum damages for intentional violations.

Disability discrimination occurs when an employer treats a qualified employee or applicant unfavorably because of a disability or the history of a disability (such as cancer that is controlled or in remission).

The Law

  • Title VII of the Civil Rights Act of 1964, Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), as amended, or the Rehabilitation Act, as amended, NYS Human Rights Law, NYC Human Rights Law, among others, prohibit discrimination based on a disability or perceived disability.
  • The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
  • Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Protected Individuals

  • The law also protects employees from discrimination based on their relationship with a person with a disability, even if they do not themselves have a disability. For example, it is illegal to discriminate against an employee because her husband has a disability.
  • Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
  • A person can show that he or she has a disability in one of three ways:
    • A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
    • A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
    • A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Potential Violators

  • The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Benefit of the Law/Benefits of the Law

  • The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
  • The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
  • The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability. For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer.
    • An employer can ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
  • After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.
  • The law also requires that employers keep all medical records and information confidential and in separate medical files.