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Disability Discrimination

It’s illegal for an employer to discriminate against any current or potential employee on the basis of that employee’s disability.

Disability discrimination is illegal under the federal Americans With Disabilities Act (ADA). The New Jersey Law Against Discrimination (NJLAD) also forbids discrimination in housing, employment, and other situations against individuals with disabilities.

An individual with a disability is one who “has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.” 42 U.S.C.A. § 12102(2).

Protection from Discriminatory Adverse Employment Actions

The ADA forbids discrimination based on an individual’s disability in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits (such as leave and health insurance), and any other term or condition of employment.

The NJLAD also prohibits discrimination in the workplace against disabled workers, including in hiring, firing, compensation, terms and conditions of employment, and retirement. An employer cannot undertake an adverse action against any employee for discriminatory reasons. This includes failure to hire, demotion, discipline, termination, pay reduction, and layoff of an employee on account of disability.

Further, if an employee ends her employment because of a disability, she is not disqualified from receiving New Jersey unemployment benefits.

Victims of discrimination in New Jersey can file employment-related claims with two primary agencies. At the federal level, the Equal Employment Opportunity Commission (EEOC) handles discrimination claims, while the New Jersey Division of Civil Rights (DCR) typically handles discrimination claims at the state level. In order to bring a claim before the EEOC, the complaint must be related to unlawful discrimination or retaliation covered by federal laws. Claims covered only by state law, on the other hand, must be brought before the DCR.

If you believe you’ve been the victim of disability discrimination, you should talk to an attorney experienced in federal and New Jersey anti-discrimination laws. An experienced attorney can help you determine whether you may have a claim, and if so, help you decide which venue would be best for you to pursue an action.

Protection from Harassment

It is generally unlawful for anyone in the workplace to harass anyone because of disability, physical or mental impairment, or medical condition related to disability– including by supervisors, coworkers, or clients. Harassment is deemed 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 action (like termination or demotion). If the harassing conduct is intentional, extreme, and outrageous, it may constitute intentional infliction of emotional distress.

Mental Impairments May Be Disabilities

A mental impairment is defined by the ADA to include: “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 CFR § 1630.2(h)(2). Conditions like stress and depression can be considered impairments if they result from a “documented physiological or mental disorder.” (Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans With Disabilities Act, at II-3). Evaluation of whether a mental impairment may constitute a protected disability must be done on a case-by-case basis.

Substance Abuse Issues

The ADA explicitly excludes certain conditions from being disabilities, such as psychoactive substance use disorders resulting from current illegal use of drugs. 42 U.S.C.A. § 12211. However, disorders resulting from the use of legal drugs – including alcohol or prescribed drugs – may result in physical or mental conditions protected under the ADA or the NJLAD. Each case must be individually evaluated.

Disability Accommodation and Disability-Related Accommodation

Many impairments resulting from disability are protected under the Americans with Disabilities Act (ADA), which applies to most employers having 15 or more workers. If an employee is able to perform the essential functions of her job with or without accommodation, her employer must provide reasonable accommodations for impairments related to her disability that affect any aspect of her job functions.

Example: A receptionist at an airport information kiosk breaks her foot. She is still able to fulfill the essential functions of her job – interacting with the public, giving them information, and communicating with others via telephone – but cannot stand for a full 8-hour shift. Standing is not an essential function of the job, but is customary for the position. Providing her with a stool is probably a reasonable accommodation.

The “essential functions” of a job are the fundamental duties of a job, whether or not they constitute the largest share of an employee’s time. An employee who can’t perform the essential job functions, even with reasonable accommodation, isn’t considered qualified for the job and isn’t protected from discrimination.

Example: A helicopter pilot works for a tour company, where she spends three hours a day flying a helicopter, two hours on maintenance, and two hours on paperwork. Despite the fact that less than 50% of her time is spent in actual flight, it is clear that “flying a helicopter” is an essential function of her employment.

An employee must request necessary accommodations upon the advice of a medical provider and provide notice of the requested accommodation(s). Once notice is provided, the employer and employee must engage in an interactive process, wherein they sit down and discuss what aspects need to be accommodated. The employer must provide options for accommodations, and the employee must provide input as to what will work for her needs. The employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to disabled employees.

Example: An employee with a broken leg may request additional breaks for periodic rest, assistance with manual labor, job restructuring or modified work schedules, temporary transfers to less strenuous or hazardous work, a stool or chair, dress code accommodations such as allowing more comfortable footwear, and more.

Whether or not an accommodation is reasonable is a balancing test. Ideally, the employer and employee devise an accommodation that meets the needs of the employee without creating an undue burden and can be implemented quickly. If an accommodation is impossible to provide or creates an undue hardship upon the company, an employer may not be required by law to accommodate the employee.

Example: The aforementioned helicopter pilot is advised not to fly while her broken leg heals – approximately 8-10 weeks – and requests a temporary transfer to a less-strenuous office/maintenance position or a temporary leave of absence. Depending on the circumstances, this may be reasonable (if she works for an national tour company with hundreds of pilots) or unduly burdensome (if she works for a five-pilot operation).

An employer may not penalize an employee for requesting or using an accommodation.

To schedule an appointment at the Basking Ridge, Oradell, or Newark, New Jersey, law offices of Mark | Lavigne, LLC, contact us today. Our experienced employment team can help you determine whether you may have a claim for disability discrimination or other New Jersey employment law claims.

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