Disability Discrimination

Our firm successfully went to trial against Walmart and won the largest single-plaintiff verdict ever under the Americans with Disabilities Act (“ADA”), resulting in a $7.5 million verdict. That liability verdict was sustained by the Second Circuit Court of Appeals, and has been cited more than 500 times by other courts since then. Wigdor LLP has successfully represented many other clients who are either disabled or have been perceived as disabled and treated unlawfully by their employer.

The Americans with Disabilities Act (ADA) is the landmark federal legislation protecting employees and others against disability discrimination. It provides that an employer cannot discriminate against a “qualified individual” based upon an actual or perceived disability. A qualified individual is one who can perform the essential functions of the job, either with or without reasonable accommodation. Under the ADA as amended, a disability is defined as “…a physical or mental impairment that substantially limits a major life activity.” Examples of major life activities include sleeping, breathing, caring for oneself, eating, etc. Common examples of covered disabilities under the ADA include back injuries, psychiatric impairments, neurological impairments, heart impairments, substance abuse and diabetes, although this list is far from exhaustive.

In addition, the ADA provides that an employer must make certain reasonable accommodations to qualified applicants or employees with known disabilities. According to the U.S. Department of Labor, a reasonable accommodation is one that allows the individual to “compete in the application process or perform the essential functions of the job.” When an employee’s disability is brought to the attention of an employer, the employer or the employer’s representatives must sit down with the employee to engage in an “interactive accommodation process” in order to propose a reasonable accommodation or come to an agreement on one (where feasible without placing an unreasonable burden on the employer). Typical reasonable accommodations may include making existing facilities accessible, adjusting work schedules, and modifying equipment.

In 2008, the definition of a disability under the ADA was expanded by the ADA Amendments Act (ADAAA). In an effort to make it easier for an individual to find protection under the ADA, the ADAAA broadens the scope of what a disability is by modifying other parts of the statute. For example, the ADAAA expands the ADA’s understanding of “major life activities” to include “major bodily functions” (e.g., the function of the brain, bladder, endocrine system, digestive system, etc.). Moreover, the ADA rejects the U.S. Supreme Court’s narrow interpretation of whether a disability “substantially limits” a “major life activity,” as the Court had previously ruled that an impairment “substantially limits” a “major life activity” if it “prevents or severely restricts the individual” from performing the activity. The ADAAA also directs the Equal Employment Opportunities Commission (EEOC) to change its current regulatory definition of “substantially limits” to be consistent with the ADAAA. In addition, the ADAAA provides that the ameliorative effects of medication, devices or other mitigating measures cannot be taken into consideration in determining whether or not an impairment is “substantially limiting” as to being considered a disability covered by the ADA.

It is important to understand that an employee does not necessarily have to be “disabled” (that is, having a permanent disability of some kind or any medical/physical condition at all) to bring a successful disability claim. Many cases involve individuals who are simply perceived as disabled because, for example, they are recovering from surgery, are under emotional distress, or have another condition (or had a condition in the past) which their employer thinks would prevent them from being productive or could pose a risk of increased costs or inconvenience. We also handle cases in which employers refuse to grant reasonable requests for accommodation from disabled employees or fail to engage in the legally required reasonable accommodation interactive process to discuss whether accommodations can be made to aid the employee in performing his or her job. Other types of disability cases involve situations in which employers ask unlawful questions that would reveal a disability prior to making a job offer or retaliate against an employee for taking medical leave (whether to attend to the employee’s own needs or those of a loved one) asking for an accommodation, or for complaining about discriminatory treatment. There are also state and local laws that prohibit employment discrimination on the basis of disability.

The New York State Human Rights Law (NYSHRL) prohibits all public employers and any private employer with 4 or more employees from discriminating based upon an individual’s past, current, or perceived disability. A similar local law prohibiting employment discrimination based upon an actual or perceived disability is the New York City Human Rights Law (NYCHRL). The New York Court of Appeals has determined that the NYCHRL should be interpreted in favor of plaintiffs bringing discrimination suits, “to the extent that such a construction is reasonably possible.” Additionally, unlike the ADA and the NYSHRL, the NYCHRL puts the burden of proof on the employer (rather than the employee) regarding whether or not the employee could perform the essential functions of the job with a reasonable accommodation.