Articles Posted in Disability Discrimination

A few years ago, many news sources covered an array of stories where “zero-tolerance” rules — either in schools or workplaces — yielded unjust, and sometimes absurd, results. What these stories taught was the peril that comes with applying any set of rules too rigorously without discretion, common sense, and sometimes a dose of compassion. When that takes place in an employment setting and the employee harmed is a person with disabilities, that employer’s intractable action may give that worker, with the assistance of an experienced New York City disability discrimination lawyer, a winning discrimination lawsuit under federal, state, or city law.

Consider the disability discrimination case of K.G., a Con Ed employee in Manhattan. At that time, Con Ed required employees to submit to random drug tests. On Dec. 21, 2016, K.G. tested positive for marijuana. Three weeks later, Con Ed fired her, allegedly because its workplace policies called for zero tolerance for the use of illegal drugs among workers who had been with the company for less than six months.

Seems pretty straightforward on those facts, doesn’t it? Con Ed prohibited marijuana use among employees, K.G. used, so the employer was entitled to make the termination, right?

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When you’re a working woman who becomes pregnant, you face many challenges, even if yours is one of the “easiest” pregnancies possible. Those challenges only multiply if your pregnancy comes with complications. Complications may mean that you have special needs, such as requiring more time off from work than you (and perhaps your employer) had originally planned. When complications happen, the law has various protections. Not only can your employer not discriminate against you because of your pregnancy, but your employer also may not discriminate based on your pregnancy-induced disabilities. If your employer does either (or both) of these things, then you may have a legal case under state and/or federal law, so you should contact an experienced New Jersey pregnancy discrimination lawyer about your situation.

T.M. was one of those pregnant women allegedly harmed by workplace discrimination. She applied for a job as an EMS dispatcher. The employer hired her and scheduled a start date. However, five days before that start date, preeclampsia caused T.M.’s doctors to induce her into early labor and deliver her son prematurely.

Preeclampsia is a condition among pregnant women in which they develop hypertension (high blood pressure,) typically after 20 weeks of pregnancy, despite previously having normal blood pressure. It is a common pregnancy complication, occurring in 5-8% of all pregnancies, and occurring at even higher rates among certain communities of color, especially Black and Latina mothers.

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Workplaces are settings where people must find ways to work together if they are to achieve optimal success. Representing the flip side of this, many discrimination and harassment cases arise because of an unreasonable refusal to “work together” with an employee who had a disability. If you were that worker, you are entitled to take legal action and potentially recover substantial compensation for the harm you endured. Get in touch with an experienced New York disability discrimination lawyer today to find out more.

Some years ago, an employment attorney in another state opined that, in a lot of cases, employers find themselves facing discrimination or harassment litigation because of a failure to follow one simple rule: don’t be a schmuck. (The author didn’t say “schmuck,” but you get the point.) This is good advice that too often goes unheeded. Whether it is utterly unnecessary jokes about a worker’s race/sex/ethnicity/religion/etc. or excessive uncooperativeness toward an employee needing a disability accommodation, many cases come to exist because of entirely avoidable violations of the law.

Take, for example, the disability discrimination case of D.B., a stage manager for a major cable sports network. He had a medical condition, exacerbated by working in cold studios, that affected his skin. Indeed, the manager’s direct supervisor allegedly once asked him, in front of a sizable group of people, “What’s wrong with your skin?”

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Disability discrimination in the workplace can occur in many different ways. The disability that makes up the foundation of your lawsuit could be something chronic or, potentially, it could be very temporary. Whatever the particulars, if you’ve suffered disability discrimination on the job, you should contact a knowledgeable New York City disability discrimination lawyer and find out more about your legal options.

Often, in this blog, we look at court cases involving workers harmed by discrimination, so that you can see their circumstances and see how they, like you, may have the potential to achieve success through the legal system.

Sometimes, though, there are cases that are not employment discrimination matters but may still be of potentially massive importance to you as a New York City worker who may need to consider an employment discrimination lawsuit. The recent Americans with Disabilities Act (ADA) case of one New York prisoner is an example of this kind of case.

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In civil litigation matters, including discrimination and harassment cases, attorneys make many assertions and arguments. To the ears of non-lawyers, some of those statements can seem extreme or inflammatory when, in actuality, they’re really mundane. At the same time, a lawyer might say something that sounds ordinary or trivial to a layperson that a skilled legal professional would immediately identify as grossly inappropriate and very important. That is just one of the countless reasons why you need an experienced New York discrimination lawyer handling your case.

A seasoned pro will both be able to spot those prejudicial comments and also know what to do about them. And knowing what to do is absolutely essential because, if you don’t take action at the right time, then that misstep may alone be enough to sink your argument, even if the other side said something completely improper.

The recent disability discrimination case of J.H., who was an Iraq War veteran, a sufferer of post-traumatic stress disorder (PTSD), and a security worker for a New York State psychiatric center, is a good example. On multiple occasions, the man applied for a promotion but was never successful. A colleague testified that J.H. was denied his promotion because the agency’s decision-makers had doubts about his mental stability after his military service.

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The novel coronavirus, known more officially as SARS-CoV-2 and less officially as “the coronavirus,” has had a devastating impact on New York City and surrounding areas. While the daily number of new cases in New York is decreasing, the virus shows no sign of slowing down in many other parts of the country, even as most states are in the process of “reopening” their economies. The disease is bad enough by itself, but its supposed origins in China have also led to an unfortunate backlash against people perceived to be of Chinese heritage. In practice, this often means anyone who appears to have Asian ancestry, including in New York City. Discrimination, harassment, and worse have occurred in workplaces and in public. The New York City Commission on Human Rights (CHR), which works to prevent discrimination on the basis of race, national origin, and other factors, created a response team in April to address discrimination and harassment related to the pandemic. If you feel you have suffered from discrimination or harassment while at work based on real or perceived national origin, it is prudent that you speak with a New York City national origin discrimination attorney as soon as possible to go over your rights under the law.

Laws Against Race and National Origin Discrimination in the Workplace

The New York City Human Rights Law (NYCHRL) prohibits workplace discrimination based on a person’s “actual or perceived…race…[or] national origin.” N.Y.C. Admin. Code § 8-107(1)(a). This includes terminating someone’s employment, demoting them, denying them shifts or assignments, and other adverse actions, when the sole or primary purpose is that they are a particular race or have a particular national origin.

The coronavirus pandemic involves multiple forms of employment discrimination. The CHR has adopted guidelines from the Equal Employment Opportunity Commission (EEOC) related to disability discrimination. The EEOC first published the guidelines in October 2009 in response to the H1N1 pandemic, and later adapted them for COVID-19. The CHR created the response team to look into anti-Asian bias.

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Most U.S. states now allow medical marijuana use to some extent, but marijuana remains strictly controlled under federal law. This creates a dilemma of sorts for employers. Mandatory drug testing is still a feature of many workplaces around the country, but if marijuana use is not always illegal, should it necessarily lead to firing or refusing to hire someone? The New Jersey Supreme Court recently ruled that an individual who was terminated because of lawful medical marijuana use outside of work can bring a disability discrimination claim. New York disability discrimination attorneys have been able to draw on state law to protect their clients since 2014, when the state approved medical marijuana use with express non-discrimination provisions. New York City will soon offer even more protection with a new law banning the use of pre-employment marijuana tests.

Medical Marijuana and Disability Discrimination in New York State

New York State’s Medical Marijuana Program arose from the Compassionate Care Act (CCA), which became law in 2014. The CCA states that “certified patients” have a “disability” for the purposes of state antidiscrimination law. N.Y. Pub. Health L. §§ 3360(3), 3369(2). Under the New York State Human Rights Law (NYSHRL), employers therefore may not discriminate against an employee or job applicant on the basis of lawful use of medical marijuana. N.Y. Exec. L. §§ 292(21), 296(1)(a).

New York City’s Ban on Pre-Employment Testing

In April 2019, the New York City Council passed a local law amending the New York City Human Rights Law (NYCHRL) to prohibit pre-employment testing for marijuana and synthetic tetrahydrocannabinols (THC). See N.Y. Pub. Health L. §§ 3302(21), 3306(d)(21). The new law will become effective on May 10, 2020, one year after it became law.

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As of early 2020, the unemployment rate in the U.S. is continuing a downward trend that began several years ago. These numbers, however, usually only show the percentage of the population that is able to work and actively seeking work. It does not include people who are under-employed, can only find part-time or temporary work, or have given up on finding a job. The longer a person goes without a job, the more difficult it can be for them to find one. The New York City unemployment discrimination law is one of the few in the nation to protect against automatic dismissal of job applicants who have been out of work. This type of discrimination can not only perpetuate unemployment, it can also overlap with other types of unlawful discrimination.

Unemployment Discrimination Under New York City Law

The New York City Human Rights Law (NYCHRL) prohibits employment discrimination on the basis of an individual’s unemployment. N.Y.C. Admin. Code § 8-107(21). It defines unemployment as being out of work despite being able to start working and actively looking for a job. Id. at § 8-102.

Employers in New York City may not advertise that a job is only open to individuals who are not currently unemployed, or that they will not consider unemployed applicants. They may not base employment decisions, including hiring, rate of pay, and other matters, on an applicant’s unemployment. They may, however, inquire about why an applicant has been out of work. They may consider unemployment as a factor in their decision-making if they have “a substantially job-related reason for doing so.” Id. at § 8-107(21)(b)(1).

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Steven Fingerhut, an employment litigation associate at Phillips & Associates, recently offered advice to Super Lawyers as to how a person can tell if he or she has grounds to pursue a New York disability discrimination claim. Mr. Fingerhut was recently named to the New York Rising Stars by Super Lawyers, which is an honor reserved for the top attorneys in a practice area in each state.

Laws Protecting Workers with Disabilities

Mr. Fingerhut noted that local, state, and federal laws prohibit employers from discriminating against people with disabilities. For example, the New York State Human Rights Law (NYSRHL), the New York City Human Rights Law (NYCHRL), and the Americans with Disabilities Act (ADA), all protect people from disability-based workplace discrimination. In New York, to recover damages for a disability discrimination claim, you must prove that you meet the elements of a claim as defined by one of the anti-discrimination laws.

While each of the aforementioned laws prohibits discrimination against an individual with a disability, they all have a unique definition of what constitutes a disability. For instance, the ADA defines a disability as a physical, medical, or mental impairment that inhibits a person in performing a major activity of daily life. Some actions that are considered major activities of daily life are hearing, seeking, and walking. Additionally, a person is not only considered disabled for purposes of the ADA if he or she actually has a disability, but also if he or she is believed to have a substantial or permanent mental or physical impairment, regardless of whether the person actually has the impairment.

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Can an employer fire an employee for getting sick? This was the question addressed by Jesse Weinstein, a Litigation Associate at Phillips & Associates, in an article published by Lawyer Monthly online and in its June 2019 print issue. The answer, as with almost any legal question, is that it depends. As an “at-will employment” state, New York law allows employers to fire their employees for any reason, or no reason at all, as long as the decision does not violate laws against discrimination, retaliation, and related practices. Firing an employee because of an illness might violate the law if the employee’s illness is a legally-protected disability, or if the employee is entitled by law to medical leave with employment protection. New York City employment attorneys can choose from multiple statutes, from the local up to the national level, when advocating for their clients’ rights.

The New York City Human Rights Law prohibits discrimination on the basis of disability and defines the term broadly to include “any physical, medical, mental or psychological impairment.” N.Y.C. Admin. Code § 8-102, 8-107(1)(a). Further, the law requires employers to make reasonable accommodations for workers with disabilities, as well as workers who or pregnant or have recently given birth, to allow them to perform their job duties. Id. at §§ 8-107(15), (22). Employers are not obligated to accommodate employees if doing so would pose an undue hardship.

Statewide, the New York State Human Rights Law gives the term “disability” a narrower definition, applying it in part to “physical, mental or medical impairment[s]” that “prevent[] the exercise of a normal bodily function.” N.Y. Exec. L. § 292(21). The statute prohibits discrimination on the basis of disability and requires employers to provide reasonable accommodations except in cases of undue hardship. Id. at §§ 296(1)(a), (3).
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