“Even the most insignificant physical disability can make day-to-day activities challenging”
What is Disability Discrimination?
Disability Discrimination as per U.S. Equal Employment Opportunity Commission (EEOC):
Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual who is an employee or applicant unfavorably because he or she has a disability.
Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because he or she has a history of a disability (such as a past major depressive episode) or because he or she 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 or she does not have such an impairment).
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”).
The law also protects people 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.
Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The protections are the same.
Disability Discrimination & Work Situations
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.
Disability Discrimination & Harassment
It is illegal to harass an applicant or employee because he or she has a disability, had a disability in the past, or 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 or she does not have such an impairment).
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).
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.
Disability Discrimination & Reasonable Accommodation
The law requires an employer to provide reasonable accommodations to employees and job applicants with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
While the federal anti-discrimination laws don’t require an employer to accommodate an employee because he or she must care for a family member with a disability, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA.
Disability Discrimination & Reasonable Accommodation & Undue Hardship
An employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
Definition Of Disability
Not everyone with a medical condition is protected from discrimination. 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 has a disability 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, or operation of a major bodily function).
- A person has a disability if he or she has a history of a disability (such as cancer that is in remission).
- A person has a disability if he or she is subject to an adverse employment action and 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 or she does not have such an impairment).
Disability-Related Questions & Medical Exams During Employment Application & Interview Stage
The law places strict limits on employers when it comes to asking any job applicants to answer disability-related questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer disability-related questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
Disability-Related Questions & Medical Exams After A Job Offer For Employment
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain disability-related 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.
Disability-Related Questions & Medical Exams For Persons Who Have Started Working As Employees
Once any employee is hired and has started work, an employer generally can only ask disability-related questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
No Direct Evidence Required to Prove Discrimination
In employment discrimination cases, such as age, race, ethnicity, disability, sex, etc., or discriminatory harassment, direct evidence of discrimination includes, but not limited to, for example, supervisor making discriminatory comments in emails, recorded telephone messages, text messages, social media positing’s, etc.
While direct evidence of discrimination is preferred, a plaintiff is not required to come forward with direct evidence of discrimination. All courts recognizes that employers are sophisticated enough to hide motives they know are illegal. They do not leave a paper-trial or other direct evidence of discrimination, and there will seldom be eyewitness testimony as to the employer’s state of mind, no written records revealing the forbidden motive and may communicate it orally to no one.
In the absence of direct evidence of discrimination, courts permit a plaintiff to present her case to a jury if she comes up with circumstantial evidence sufficient to demonstrate that her termination was more likely than not motivated by discrimination.
New Jersey courts analyze an LAD claim based on the three-part burden shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas burden-shifting framework, if the plaintiff sets forth a prima facie case of discrimination, a presumption is created that the employer unlawfully discriminated against the plaintiff. The plaintiff sets forth a prima facie case of AGE discrimination if she demonstrates that (1) she was in a protected class; (2) she was qualified for the position from which she was fired; and (3) she suffered an adverse employment decision; (4) she was replaced by a sufficiently younger person to create an inference of age discrimination, or the termination took place under circumstances that give rise to an inference of unlawful discrimination. After an employee has established a prima facie case, a presumption is created that the employer unlawfully discriminated against the employee.
After the plaintiff establishes prima facie case, the burden then shifts to the employer to articulate with admissible evidence a “legitimate non-discriminatory reason for the employer’s action. To accomplish this, the employer must clearly set forth the reasons for the plaintiff’s rejection which would support a jury finding that unlawful discrimination was not the cause of the adverse employment action.
After the employer demonstrates a legitimate non-discriminatory reason for termination, the burden then shifts back to the plaintiff to come forward with evidence demonstrating either (1) that defendants‟ proffered reason for terminating the plaintiff was unworthy of credence, or (2) discriminatory animus more likely than not motivated plaintiff’s termination.
A plaintiff may demonstrate discrimination by producing indirect evidence to demonstrate that the employers’ reasons to terminate/discipline employer’s was either a post hoc fabrication or otherwise did not actually motivate the employment action. That is, the reasons provided by the employer was a pretext. To do so, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reasons for termination/discipline that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted reasons provided.
Alternatively, a plaintiff may come forward with sufficient evidence from which a jury could reasonably conclude that a discriminatory factor more likely than not was a motivating or determinative cause of the adverse employment decision (e.g., by showing that the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons).Further, a plaintiff need not prove that discrimination was the ONLY factor, or the sole or exclusive factor in the decision to fire her, but A factor.
Statistically, most plaintiffs win their discrimination cases in state courts. However, some of these cases do not even make it to a jury, and are dismissed on summary judgment.
If you are looking for a qualified disability discrimination attorney to work on your claim, please review the case types below.