New York Employment Lawyer Blog

In New York, and every place else in America, it is illegal to fire an employee due to a disability. It is also illegal to fire an employee who asks for time off for a medical procedure - this conduct is prohibited by the Family Medical Leave Act. The Family Medical Leave Act applies to companies with 50 or more employees and the employee has to have been employed continuously for a year to be protected.

The disability discrimination laws and the FMLA have been around for a long time. But still companies act like these laws don't exist. Just the other day, a woman came to see us who was fired several days after she told her boss that she needed time off for an operation. This employee, lets call her Gertrude for fun (real names not used here) had a heart condition and she needed to have an operation to prevent another heart attack from happening. She told her boss about the operation on Tuesday and on Friday she was fired after 8 years with the company. No warnings.

So does Gertrude have a case? She sure does. First, Gertrude has a disability discrimination case because she had a serious heart condition and she told her boss about her condition. Since she was fired soon after telling her boss about her heart condition, it looks very much like she was fired because her boss viewed her as disabled and likely to need time off and slow things down at work. She has a disability claim under the New York City Administrative Code and possibly under the Americans with Disabilities Act. I prefer the NYC law because it is broader than the ADA.

Gertrude also has a claim under the FMLA. Under that law, an employer cannot retaliate against an employee who seeks to exercise their rights under the FMLA. The company is also prohibited from interfering with an employees right to take time off under the Family Medical Leave Act.

Gertrude most likely has viable legal claims for disability discrimination and for violations of the FMLA. We see a lot of disability discrimination cases. For some reason, companies think it is OK to fire people when they need time off for serious illnesses (their own illness or to care for a sick family member) or when they learn that an employee has a serious illness. Just last week another person hired us after her boss fired her soon after she disclosed that she had MS.

If you have been fired due to an illness or disability, give us a call. There is no charge for the first consultation and during that meeting we will try to determine if you have a viable legal claim.

Yesterday I wrote about New York City's powerful disability discrimination law.   At our office we are hearing from more people about disability discrimination.   The sad truth is that many companies do not want to be bothered dealing with a disabled employee.   We currently have a case involving a large retailer that fired an employee immediately after she was released from a psychiatric treatment facility.   We recently settled another disability discrimination case for a woman who was fired soon after she was diagnosed with kidney disease and asked for time off for treatment.

Since disability discrimination cases often reveal a cold and uncaring side of humanity, these cases can produce large verdicts.   For example, a former a former Rite-Aid employee who alleged disability discrimination, was awarded $3.4 million by a jury.   The victim was 45 year old Maria C. Martinez who worked for Rite-Aid from 1983 to 2007 as pharmacy technician.

In 2003, Ms. Martinez was required to take disability leaves of absence to treat a psychiatric illness.  In 2004, Ms. Martinez experienced a work related anxiety attack and took several months off of work.  When she returned to work, her supervisors harassed her on account of her psychiatric disability.   They called her a “basket case” and gave her unwarranted reprimands and transferred her from store to store just to make her life difficult.

At trial, Ms. Martinez accused Rite-Aid and her supervisors of disability discrimination.   The jury found that Rite-Aid’s employees intentionally discriminated against Ms. Martinez due to her psychiatric disability.   Another phase of the trial is set to begin shortly to determine the amount of punitive damages.  The punitive damages will be in addition to the $3.4 million verdict already rendered.

In another disability discrimination case,  a jury awarded a cancer patient over $8 million.   The cancer patient was fired while she was receiving cancer treatment.  The jury found that her employer fired the employee because she had cancer in blatant violation of the disability discrimination laws.

Disability discrimination case be strong and produce much needed income from disabled individuals who have lost their jobs.   It is hard enough dealing with a disability, but when the hardship is compounded by unfair treatment at work, that just makes it worse.   If you have questions about the disability discrimination laws, give us a call.

New York City has its own disability discrimination law.   It is part of the New York City Human Rights Law and you can find the text of the law here.  This disability discrimination law is better for employees than the federal Americans with Disabilities Act.   The New York City disability discrimination law defines disability broader than the ADA and protects more people and there are no limits on damages and even better, you can bring a case under this law in New York state court and avoid federal court.

Section 8-107 of the New York Human Rights Law provides that employers are prohibited from discriminating against an employee because of an actual disability or a perceived disability.   This law protects not only the disabled but also those who are perceived as disabled.  Under this law it would be illegal for an employer to fire non-disabled employee because the employer suspected that the person was disabled due to rumors, hospitalization, missed work or the like.   This is serious law that is truly meant to help anyone who is fired or otherwise denied benefits or opportunities at work because of a disability or being perceived as disabled.

The New York City disability discrimination law also requires employers to provide reasonable accommodations to help disabled employees do their job. The law provides that employers "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job or enjoy the right or rights in question provided that the disability is known or should have been known by the" employer.   This means that employers are required to provide disabled employees with tools, equipment, support, flexible schedules and anything else within reason that will assist a disabled employee in doing their job.   If you are disabled and need assistance to do your job, be sure to put in a request for help but do so in writing and keep a copy.  You also need to let your employer know about you disability and it is best to do so in writing and keep a copy.

The New York City Human Rights Law also protects employees from retaliation.  If a company fires or takes any other adverse action against a disabled employee for asking for help or making a complaint about disability discrimination, that employee can sue the company for retaliation.   Disability retaliation cases can be very strong and produce high verdicts.

If you have any questions about your rights at work, please feel free to contact us for a no cost, no obligation consultation.

Disability discrimination verdicts appear to be on the rise. Recently, a former Rite-Aid employee won $3.4 million in a disability discrimination case. The plaintiff in that case was 45 year old Maria C. Martinez who worked for Rite-Aid from 1983 to 2007 as a pharmacy technician.

In 2003, Ms. Martinez was required to take disability leaves of absence to treat a psychiatric illness. In 2004, Ms. Martinez experienced a work related anxiety attack and took several months off of work.

When Ms. Martinez returned to work, her supervisors harassed her on account of her psychiatric disability. They called her a “basket case” and gave her unwarranted reprimands and transferred her from store to store.

At trial, Ms. Martinez accused Rite-Aid and her supervisors of disability discrimination. The jury found that Rite-Aid’s employees intentionally discriminated against Ms. Martinez due to her psychiatric disability. Another phase of the trial is set to begin shortly to determine the amount of punitive damages. The punitive damages will be in addition to the $3.4 million verdict already rendered.

Disability discrimination verdicts appear to be on the rise. Recently a jury in Florida awarded a cancer patient over $8 million. The cancer patient was fired while she was receiving cancer treatment. The jury found that her employer blatantly violated disability discrimination laws.

The same ground-ball disability discrimination case passes through our firm every three months. It usually unfolds like this - a potential client calls and informs us that he or she is ineligible for FMLA leave and is being told that his or her position will not be held open if he or she opts for a short leave to accommodate the need for medical treatment for a chronic disability. My advice - let them fire you, sit back and wait for your settlement and watch as the HR representative who fired you is him or herself fired. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation under the Americans with Disabilities Act when necessitated by an employee's disability. While the Second Circuit has not ruled on the issue, many other circuits, district courts throughout the Second Circuit and the EEOC have determined that unpaid leave - even leave beyond that which is permitted by a company's policies - is a reasonable accommodation provided that the company does not face an undue hardship in providing the accommodation. In fact, a federal judge in the Northern District of New York recently refused to dismiss a complaint on a defendant's motion to dismiss where the plaintiff had been fired during a 9 month unpaid leave finding that the plaintiff had alleged a prima facie case of disability discrimination for failure to accommodate. As many an HR employee has learned the hard way, the right to unpaid leave for medical treatment of a disability is protected by both the FMLA and the ADA for qualifying disabilities.

The following is a guest blog article by Dolan Law Offices:

Approximately 36% of people with disabilities who are of working age and live in the community are employed. This means that more than 8.5 million disabled people are working in the United States. While some of these people have been disabled their entire lives, others were just victims of serious personal injury accidents which caused their disabilities. For example, a serious motor vehicle accident can result in spinal cord injuries, traumatic brain injuries and other serious physical limitations.

The Right to Return to Work

The federal Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide people with disabilities an equal opportunity to benefit from the full range of employment-related opportunities. A person with a disability, for purposes of ADA protection, is one who has a physical or mental impairment that substantially limits one or more major life functions.

Reasonable Accommodations

An employer has the responsibility to make reasonable accommodations for a person with a disability. Reasonable accommodations are highly individualized and dependent on the person and type of disability. They may include things such as:

• Building renovations to include a handicap-accessible ramp or bathroom;
• Providing sign language interpreters and TTY services;
• Providing Braille materials and / or readers; and
• Allowing a person to take time off to get medical attention or rehabilitation services related to the disability.

The ADA defines reasonable accommodations as the type of activities, services or renovations that do not create an undue hardship for the employer. The U.S. Equal Employment Opportunity Commission (EEOC) and courts will consider things such as the nature of the accommodation, the cost of the accommodation with relation to the assets of the employer, and whether any other accommodations exist that would allow the employee to benefit from the full range of employment-related opportunities and would be less of a burden to the employer.

What to Do If You’ve Been Denied Reasonable Accommodations

If you believe that you have been discriminated against because of your disability and that you have been denied an equal opportunity in recruiting, hiring, promotion, training, pay or any other employment benefit, then you may have the right to file a complaint with the EEOC. A lawyer can help you evaluate your case and represent you before the EEOC and in any subsequent or related legal proceedings.

Dolan Law Offices is a Chicago, IL personal injury law firm. We represent victims who suffer serious injuries such as traumatic brain injuries and spinal cord injuries in Illinois. We are committed to helping each of our clients recover full and fair compensation for their injuries.

My seven month old daughter hardly every blinks. My wife and I noticed this at some point in the fall and debated the origin and seriousness of the condition. In my uninformed opinion, low frequency blinking is a genetic characteristic. My wife was unconvinced and had her checked out by our pediatrician, who said it wasn't a problem (but didn't elaborate).

Why do babies blink less than adults? As it turns out, a number of factors contribute to low frequency blinking in babies, including less stress and more sleep than adults (go figure).

I was not entirely wrong. There is some evidence to suggest that low frequency blinking is an inherited trait. So could an airline require genetic testing for pilot candidates in the hopes of weeding out high frequency blinkers and identifying low frequency blinkers? If the condition is genetic, probably not. In the last 10 years, the federal government, and many local governments, have passed legislation prohibiting discrimination in employment based on genetic predisposition.

Too far fetched? Think again. Disability discrimination claims have originated this way. In fact, the Burlington Northern Santa Fe Railroad was sued by the EEOC for requiring that their employees who file claims for work-related carpal tunnel syndrome undergo genetic testing for a genetic deletion that has been proposed to make a person more susceptible to the condition. Before it went to trial, the Burlington Northern Santa Fe Railroad settled the lawsuit and stopped requiring genetic testing for their employees.