New York and federal laws protect most employees from disability discrimination and give them the right to reasonable accommodations for their disabilities. If you lost your job because you have a disability, or because you were denied a reasonable accommodation that would have allowed you to do your job, you may have a good case against your employer for wrongful termination.
Below, you’ll find information on your rights under state and federal disability discrimination laws, including your right to a reasonable accommodation and time off work. You’ll also learn what to do if your rights have been violated.
New York and federal law both prohibit disability discrimination. In New York, the Human Rights Act prohibits employers with four or more employees from discriminating against employees with disabilities. The federal Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against employees with disabilities. If you work in New York City, you may have additional protections under the New York City Human Rights Law. Your attorney can explain the differences among these laws and help you decide which will best protect your rights.
Under the ADA, a disability is an impairment (physical or mental) that substantially limits at least one major life activity. Major life activities are things we do that are of central importance to our daily lives, such as breathing, seeing, hearing, speaking, learning, caring for oneself, walking, performing manual tasks, and learning. Major bodily functions, such as the proper working of the digestive, reproductive, neurological, endocrine, and immune systems, also qualify as major life activities.
New York’s Human Rights Law is similar, but it doesn’t include the “substantially limits” requirement. In New York, a disability is an impairment that impairs the exercise of a normal bodily function or can be demonstrated by medically accepted laboratory or clinical diagnostic techniques.
Both the ADA and New York law also prohibit discrimination based on your record or history of disability (for example, because you had surgery for a back injury) or your employer’s inaccurate belief that you have a disability.
To be protected under federal and state disability laws, you must be able to perform the essential functions of your job, with or without a reasonable accommodation. (To find out more, see Essential Job Functions Under the ADA.)
Under the ADA and New York law, employees are entitled to reasonable accommodations for their disabilities. Reasonable accommodations include assistance or changes to work rules, job duties, or the structure and configuration of the workplace that will allow an employee with a disability to do the job. For example, an employer may be required to provide a modified work schedule so that an employee with cancer may undergo treatment. (Learn more at our Reasonable Accommodations page, which includes information on accommodations for specific disabilities.)
You must ask for a reasonable accommodation if you need one; your employer isn’t required to guess that you might need help. (Requesting a Reasonable Accommodation explains how to ask for the changes you need.) Although you don’t have a legal right to the precise accommodation you request, your employer must engage in a dialogue with you to come up with an accommodation that will be effective. And, your employer need not make an accommodation that would create undue hardship: significant difficulty or expense, based on the nature of the company, its size, its resources, and how it is structured.
Some employees need time off work because of their disabilities. You might need leave for physical therapy, to recover from surgery, or to recuperate from a flare-up of a chronic ailment, such as rheumatoid arthritis, for example.
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. Although some states have similar laws (some of which apply to smaller employers), New York is not one of them.
Your employer may also be required to give you time off as a reasonable accommodation, depending on the circumstances. On the one hand, employers are not expected to provide leave indefinitely. On the other hand, it may be reasonable to allow an employee to take some leave to recuperate and receive treatment, so that he or she can return to work at full strength. Courts look at your job duties, how much time off you need, and how your employer has treated requests for time off from employees who do not have disabilities, among other things. (See Time Off Work as a Reasonable Accommodation for more information.)
New York also has a state temporary disability program, which pays eligible employees who are temporarily unable to work due to disability up to half of their usual wages. But this program doesn’t give you the right to take time off; it only provides payment for time off that you are entitled to under your employer's policies or other laws. You can get more information on this program at the website of the New York Workers’ Compensation Board (select “Disability Benefits”).
Of course, disability discrimination can take many forms. However, you should talk to a lawyer if you lost your job in these types of circumstances:
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.
To challenge your employer for violations of the ADA, you’ll need to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC may investigate your claims, try to settle the case with your employer, or propose mediation. (See Filing an EEOC Charge of Discrimination for more information.)
You may not file a federal lawsuit until you receive a "right-to-sue" letter from the EEOC. This letter states that you have met your obligation to file a charge and that you may now to take your case to court. You may request this letter at any time; however, you should be ready to move forward quickly. Once the letter is issued, you will have only 90 days to file a lawsuit based on your federal claims.
You also have the option of filing a charge with the New York Division of Human Rights (NYDHR) for your state claims. However, if you do so, you are giving up your right to file a lawsuit in court for violations of state law.
Depending on your claims, you have either 300 days or one year to file your administrative charge. However, you should consult with a lawyer well before either deadline in order to preserve all of your claims.
If you win your lawsuit, you can ask the court to order your employer to give you your job back (called "reinstatement"). However, it’s rare for a court to order reinstatement. Typically, the relationship between employer and employee is so strained by the time of the lawsuit that reinstatement just wouldn’t work.
It's more common to 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.
The New York Human Rights Law does not allow punitive damages awards. However, there is no cap on how much a court or jury can award in damages for pain and suffering.
If you are considering filing an administrative charge or a lawsuit against your employer, you should talk to an experienced employment lawyer. A lawyer can help you determine whether you have a strong case, what your claims might be worth, and how best to assert your rights. A lawyer can try to settle the case with your employer, attend interviews and mediation sessions, and—of course—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, which means the lawyer collects fees only if you win your case (by taking a percentage of your recovery or award).
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.