Were you fired because you have a disability? If so, you may have a strong legal claim against your employer for wrongful termination. Virtually all New Jersey employers are prohibited from discriminating against employees based on their disabilities. Employees with disabilities are also entitled to reasonable accommodations that would allow them to do their jobs. Below, you will learn your rights under federal and state disability discrimination laws, how to pursue a claim against your employer, and what you might receive if you win.
The Americans with Disabilities Act (ADA) is the main federal law that protects employees with disabilities from workplace discrimination. It also requires employers to make reasonable accommodations for their employees with disabilities. The ADA applies to private employers with at least 15 employees.
The New Jersey Law Against Discrimination (NJLAD) is the state law that prohibits disability discrimination. Like the ADA, the NJLAD prohibits discrimination and gives employees the right to reasonable workplace accommodations. Unlike the ADA, the NJLAD applies to all private employers, regardless of size.
Under the ADA, a disability is an impairment (physical or mental) that substantially limits a major life activity. Major life activities are things we do that are centrally important to our daily lives, such as hearing, speaking, seeing, breathing, learning, caring for oneself, walking, and performing manual tasks. Major bodily functions, such as the proper working of the nervous, immune, and reproductive systems, also qualify as major life activities, as does normal cell growth.
The NJLAD defines disability more broadly as: impairments that preclude the normal exercise of any physical or mental function or that can be demonstrated either medically or psychologically through accepted diagnostic techniques.
Under both the ADA and the NJLAD, employers may not discriminate based on your history of having a disability (for example, because you had cancer) or your employer’s misconception that you have a disability.
To be protected under state and federal disability laws, you must be able to perform the essential functions of your position, with or without a reasonable accommodation. (Find out more on this requirement in Essential Job Functions Under the ADA.)
Both the ADA and the NJLAD require employers to provide reasonable accommodations for employees with disabilities. Reasonable accommodations include assistance or changes to work rules, job duties, or the structure and configuration of the workplace, to allow an employee with a disability to perform the job. (For information on reasonable accommodations, including possible accommodation for specific disabilities, see our Reasonable Accommodations page.)
You must ask for a reasonable accommodation if you need one. Your employer isn’t required to guess (and should not assume) that you need assistance because of a disability. (For tips, see Requesting a Reasonable Accommodation.) Your employer must work with you to come up with an effective accommodation. However, your employer doesn’t have to provide the exact accommodation you request, nor does it have to provide an accommodation that would create undue hardship: significant difficulty or expense, based on the company’s size, structure, and resources.
You might need to take time off work for treatment, therapy, surgery, doctors' visits, or recovery and rest. The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take up to 12 weeks of unpaid leave for a serious health condition. However, the FMLA applies only to employers with 50 or more employees.
You may also be entitled to time off as a reasonable accommodation under the ADA. Because attendance is virtually always an essential job function, courts generally find that employers don’t have to hold an employee’s job open indefinitely. So if you need an indefinite amount of leave or can’t estimate a return-to-work date, your employer is probably allowed to deny your request.
However, if you need leave for a reasonable and defined amount of time, your employer may be required to provide it. In deciding this question, courts look at how much time off you need, your job duties, and your employer’s history of handling requests for time off from employees who do not have disabilities. (Find out more in Time Off Work as a Reasonable Accommodation.)
New Jersey also has a temporary disability program, which pays eligible employees up to two-thirds of their usual wages when they are temporarily unable to work due to disability. This program does not give employees an independent right to time off; it only provides payment for time off that the employee is already entitled to. (Get more information on this program from the New Jersey Department of Labor and Workforce Development.)
Disability discrimination can take many forms. If any of the common scenarios below sound familiar, you should consider consulting with an attorney:
If you believe you were terminated wrongfully because of your disability, you can pursue legal action against your employer. But first, you must file a discrimination charge with a government agency.
Before you can sue for violations of the ADA, you need to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA. You have 300 days to file your charge. The EEOC may investigate your claims, try to negotiate a settlement with your employer, or propose mediation. (Learn more about the process in Filing an EEOC Charge of Discrimination.)
You may not file a lawsuit based on federal law until you get a "right-to-sue" letter from the EEOC, which states that you met your obligation to file a charge. You may request this letter at any time, but you should wait until you are ready to go to court. You will have only 90 days to file a lawsuit after the EEOC issues its letter.
New Jersey also has a fair employment practices agency, the Division on Civil Rights (DCR), which enforces the NJLAD. You may file a discrimination complaint with the DCR, but you are not required to do so in order to file a lawsuit based on state claims. In fact, you can’t do both: You must choose to either file with the administrative agency or sue your employer in court. If you decide to file with the DCR, you must do so within 180 days of the termination.
Because of the overlap between state and federal claims, and the different procedural requirements, you should consult with an employment lawyer well before any of the deadlines mentioned above. A lawyer can help you figure out which claims are strongest and when and where to file a lawsuit or charge.
If you sue your employer and win, you can ask the court to order your employer to reinstate you to your former ob. Courts are typically hesitant to order reinstatement, however. Typically, the firing and lawsuit will have damaged your relationship with your employer beyond repair.
If this is your situation, you can ask for money damages to compensate you for the harm done by your employer’s actions. Depending on the facts of your case, these damages might include:
While federal law does not place a cap on lost wages, it does impose caps on how much you can be awarded for pain and suffering, out-of-pocket losses, and punitive damages. Depending on the size of your employer, the maximum combined award for these types of damages ranges from $50,000 to $300,000.
If you sue under the NJLAD, there is no cap on punitive damages and pain and suffering.
If you are considering filing an EEOC or DCR charge, or a lawsuit against your employer, you should talk to an experienced employment lawyer. A lawyer can assess the strength of your claims and explain how much you might be awarded if you win. A lawyer can try to settle the case with your employer, attend interviews and mediation sessions, and represent you in court.
Especially if you are still out of work, you may be concerned about the cost of hiring a lawyer. In discrimination cases, however, lawyers generally charge on a contingency basis. This means that the lawyer takes a percentage of any award or settlement that you receive, rather than charging you on an hourly basis up front.
Learn more about hiring and working with a lawyer in a discrimination case at our Asserting your Rights Against Discrimination page. To find a local employment lawyer, check out Nolo’s Lawyer Directory.