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Did you know that many employees are protected under the Americans with Disabilities Act (ADA) without even realizing it? In this eye-opening episode of the Employee Survival Guide®, Mark Carey dives deep into the often-overlooked topic of disability rights in the workplace. If you've ever downplayed your conditions—be it anxiety, chronic pain, or mental health issues—you might be missing out on crucial protections that could enhance your career and workplace experience.
Mark emphasizes the importance of understanding what constitutes a disability under the law, revealing that the definition is broader than many believe. He tackles the stigma surrounding disabilities that can create a hostile work environment, preventing individuals from seeking necessary accommodations. This episode is a must-listen for anyone navigating the complexities of employment, as Mark provides valuable insights into disability rights and the critical need for open dialogue regarding reasonable accommodations.
Throughout the conversation, listeners will learn about the legal definitions of disability, the importance of disclosing medical conditions to employers, and the potential consequences of failing to do so, including job loss and discrimination. Mark urges you to empower yourself with knowledge of your rights, encouraging you to seek accommodations that enable you to thrive in your work environment. This episode is not just about understanding the law; it’s about advocating for yourself and ensuring that your workplace culture is one that respects and supports all employees.
As we conclude this enlightening episode, remember that legal protections exist to support employees facing health challenges. Understanding these rights is crucial for maintaining your career and ensuring that you are not discriminated against due to your disability. Whether you’re dealing with workplace harassment, navigating employment law issues, or simply looking for career development tips, this episode of the Employee Survival Guide® offers essential advice that could change your work life for the better.
Join us as we explore the intricacies of disability rights in the workplace, and learn how to advocate for yourself effectively. Don’t let ignorance of your rights hold you back—tune in now and take the first step towards a more empowered work life!
If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts and Spotify. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States.
For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.
Disclaimer: For educational use only, not intended to be legal advice.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker (00:18):
Hey, it's Mark.
Welcome back to the nextedition of the Employee Survival
Guide, where I tell you whatyou really need to know.
Today's topic.
You may be protected and notknow it, understanding
disability rights in theworkplace.
The hidden problem when workersdon't realize they're disabled.
Every week, employees acrossthe country face challenges at
work, fatigue, anxiety,migraines, chronic back pain, or
(00:40):
depression.
Yet these workers neverconsider that these conditions
might qualify as disabilitiesunder state and federal law.
They keep working harder,downplaying their symptoms, and
sometimes even apologizing fornot needing flexibility.
When an employer laterpenalizes or terminates them for
attendance issues orperformance decline, the
employee only learns after thefact that they may have been
(01:02):
protected all along under theAmericans with Disabilities Act,
the ADA, or its state and localequivalents.
There's a problem that workersoften misunderstand, what
disability actually means.
Legally, disability is not apersonal failing, nor does it
require a visible or severelimitation.
You may not know it, but I havea disability that you can't
(01:23):
see.
It's actually not visible.
It's dyslexia.
Many people have it.
The ADA defines disability farmore broadly than most people
realize.
But if an employee neveridentifies as disabled, never
requests an accommodation, andnever gives notice, the law's
protections may never come intoplay.
We regularly see clients whoonly learned they were disabled
(01:43):
after they have already losttheir jobs.
I will correct thatmisunderstanding and show you a
broad how broad the law truly isand why the stigma keeps people
silent, and what stepsemployees can take to assert
their rights before theiremployers can take advantage of
those delays.
The stigma of disability.
Despite three decades ofprogress under the ADA, the
stigma surrounding disabilityremains largely ingrained in our
(02:06):
culture.
For many employees, especiallyprofessionals in competitive
industries, the labeled disabledfeels incompatible with the
image they've worked so hard tomaintain.
They fear it implies weakness,unreliability, or diminished
capacity.
Some worry about being passedover for promotions at the work,
others being pitied ormicromanaged.
(02:28):
This culture, or the culturaldiscomfort with the label of
disability, can often lead tosilence by workers.
A project manager with panicdisorder may avoid mentioning
side effects of medicine theymay need to take.
A software engineer withCrohn's disease may not disclose
the need for flexible bathroombreaks.
An executive experiencingpostpartum depression may
(02:49):
dismiss it as just stress.
Even medical professionals,doctors, nurses, and physician
assistants often hide their ownmental, emotional, and physical
status for fear of professionalscrutiny.
They may worry that disclosurecould jeopardize hospital
privileges, trigger reportingobligations, or call their
clinical judgment into question.
Unfortunately, those mosttrained to recognize and treat
(03:11):
health conditions often receivethe least compassion when they
face their own.
These individuals can likelymeet the technical definition of
disabled under the law, butfear of stigma keeps them from
saying so.
The reality is that the ADA wasdesigned to destigmatize
disability by shifting the focusfrom what a person can't do to
what they can do with reasonablesupport.
(03:33):
Congress explicitly rejectedthe old model of total
disability that required visibleimpairment.
The law's goal is inclusion,not separation.
Yet stigma lingers becauseworkplaces still reward
endurance over honesty.
Employees worry that disclosurewill change how they're
perceived.
Managers often receive littletraining on handling
(03:55):
accommodations appropriately,and I will tell you that by
experience over my long career.
Recognizing the social dynamicis critical.
Refusing the label of disableddoes not erase the legal status.
It only potentiallydisqualifies someone from
benefiting from protections theymight otherwise have been able
to receive.
What matters is whether acondition substantially limits a
(04:18):
major life activity, notwhether an employee identifies
as disabled.
Accepting this broaderdefinition can empower workers,
including those in medicine andother demanding professions,
like the law, to seekadjustments, like modified
schedules, peer support, orshort-term leave that allow them
to keep thriving bothpersonally and professionally.
(04:38):
But what counts as a disabilityunder the law?
The ADA, in its 2008amendments, define disability in
three overlapping ways.
An actual impairment thatsubstantially limits one or
major life activities, two, arecord of such impairment, even
if it's not currently limitingyou.
And three, being regarded ashaving such an impairment
whether or not one exists.
Major life activities include awide range of physical and
(05:01):
mental functions.
These are basic acts such aswalking, sleeping,
concentrating, communicating,working, lifting, thinking, and
many others.
The ADA explicitly instructscourts to interpret
substantially limits broadly infavor of coverage.
What this means is that manycommon and invisible conditions
will disqualify or will wellqualify, such as anxiety,
(05:25):
depression, ADHD, diabetes,autoimmune disorders, migraines,
and recovery from surgery.
So do episodic conditions thatflare up over time.
The focus, as explained by theEEOC, the Equal Employment
Opportunity Commission, shouldnot be on whether the impairment
is severe, but whether itlimits the person's ability to
perform everyday activitiescompared to most people in the
(05:46):
general population.
State laws may provideprotections that go even
further.
For example, in Connecticut, wehave the Connecticut Fair
Employment Practices Act, andmost states have one as well,
that protect employees from anychronic condition or past
history of impairment thatimpacts work.
In New York, disability isdefined to include conditions
that merely prevent the normalexercise of a bodily function.
(06:08):
A notable expansive standard.
While in California, the FairEmployment and Housing Act
protects even temporaryconditions if they limit major
life activities.
Together, these statutes makeclear you don't need to be in a
wheelchair, blind or permanentlyunable to work to be disabled.
If your health conditionaffects your functioning, and
especially if your employerknows about it, you are likely
(06:29):
entitled to protections.
Here are the basic criteria forprotection.
A common myth is that anemployee must formally declare,
I have a disability under theADA.
However, the law recognizesthat most employees aren't
lawyers and may not know theseterms.
Instead, an employee only needsto put the employer on notice
that they have a medicalcondition affecting their
ability to perform the job.
(06:50):
For example, telling yoursupervisor, I'm having an
anxiety attack and I might needto work from home once a week is
enough to trigger theemployer's duty to engage in
what's called the interactiveprocess.
Requesting time off forsurgery, treatment, or recovery
signals a need foraccommodation.
Even informal discussions suchas emailing HR about a health
issue or giving a doctor's notecan count.
(07:12):
Then once in notice, theemployer must initiate a
dialogue to determine thereasonable accommodations.
This is the interactiveprocess.
Think about like talking likeadults, or just normal
conversation.
They can request limitedmedical documentation, meaning
the employer, but they cannotignore or punish the disclosure
you just made that you want, youhave a disability, you need
some assistance.
When employers fail to respond,or worse, retaliate, they
(07:34):
violate the ADA.
And that's where I come in,which, you know, I don't like
coming in, yeah, but that's whatwe do.
What counts as disabilitydiscrimination?
It takes a form of many forms,but both over and subtle.
At its core, it occurs when anemployer treats an employee less
favorably because of adisability or perceived
disability.
Examples include refusing tohire or promote an individual
(07:55):
after learning of a medicalcondition.
That happens a lot.
Denying a requestedaccommodation without showing
that it causes undue hardship.
Ironically, that happens a lot.
A terminating or discipliningan employee for using leave,
attending medical appointments,or taking time off to recover,
again, it happens a lot.
We deal with it.
Creating a hostile environmentthrough jokes, gossip, or
(08:16):
persistent questioning abouthealth, people are really
inhumane and they do it quiteoften.
Retaliating after an employeerequests accommodation or files
for an ADA complaint, thathappens far too often.
The regarded as provisioncovers even cases where the
employer's assumptions arewrong, such as believing the
employee where the past injuryis too fragile for certain work.
(08:37):
Under the ADA, no proof ofsubstantial limitations required
in regarded as cases, onlyevidence that the employer took
an adverse action because of theperceived impairment.
The regarded as prong cameabout, I imagine, to my research
over the years.
Everyone remembers the TomHanks film where he had AIDS.
And Congress believed that backin the 80s, you know, when this
(09:00):
happened, that they would put aprovision provision in there to
uh cover that condition.
It's a good prong of the ADA,and I'm glad it's there.
I've used it quite often.
And in the same time I've usedit with the other prongs of the
ADA disability.
But back to the topic.
Courts have repeatedly affirmedthat timing matters when
adverse actions closely followdisclosure or accommodation
(09:23):
requests.
The inference of retaliation isstrong.
So we're looking for that nexusbetween the time you ask or
tell them you need help and whatthey did after that.
Here's what they're supposed todo.
They're supposed to have aninteractive process, like I
said.
Once an employee discloses adisability or requests support,
the employer must engage in agood faith interactive process.
What the hell's good faith?
It means an honest discussion,not one where there's an agenda
(09:48):
by the employer to set you upunder a pip or something like
that.
This means more than a singleemail.
It requires an opencommunication, many
communications about whataccommodations might work.
Reasonable accommodations caninclude a modified work schedule
or remote work options, whichis common these days
post-pandemic.
Reallocation of marginal jobfunctions, ergonomic work
(10:09):
stations, assistive devices,paid or unpaid leave for medical
treatment, short-termdisabilities, that's what that
fits into, and Femine MedicalLeave covers that as well.
Adjustment of performancemetrics and supervision methods.
I will point out that there's afederal government agency.
It's called the JobAccommodation Network.
And you can go to it on a URL,ask A S-K, Jan Jn.gov.
(10:31):
So ask Jan.gov.
And what we and I have donethis effectively, I've used JAN
and have communicated my use ofJAN to the employer and invited
them to a communication orconversation where the person at
Jan gets up, they do a case,set up a new case, and they
begin to work through whatpossible accommodations the
employee might need.
And it forces the employer'shand to discuss.
(10:52):
And they hate this.
But it's a way to demonstratethat you've did it and that you
protect yourself under the ADA.
So remember, ask JAN atA-S-K-J-N-J-A-N.gov, and use
that to free the service of thefederal government, your
taxpayer dollars at work.
Employers are not required toprovide accommodations that
impose undue hardship,significantly difficulty or
(11:13):
expense.
However, most accommodationsdon't cost very much, if
anything, at all.
However, they cannot rely onassumptions or convenience.
The law expects them to exploreoptions, document the
discussion, and propose workablesolutions.
And I suggest you document yourdiscussions as well as they
would, and you basically useyour email to do that.
(11:33):
For example, you would set up acommunication or a teams
meeting and saying we're havingthis meeting, and then summarize
the meeting after you get offin an email.
It's time stamped, you can'tget rid of it.
When employers skip thisprocess by unilaterally denying
requests, insisting on afull-time presence despite
medical limits, or ignoringcommunications, they risk
liability.
Courts routinely hold thatfailure to engage in the
(11:54):
interactive process is in and ofitself evidence of
discrimination and adverseaction.
The emotional toll beingmisunderstood.
For employees with invisibledisabilities, like the one I
have, dyslexia, which is verycommon, the workplace can become
emotionally exhausting.
Many spend months overcoming orovercompensating, staying late,
masking symptoms, and trying toprove that nothing is wrong.
(12:14):
When their performance isinevitably dips, they face
criticism or suspicion insteadof compassion.
At that moment, the employeerealizes too late that silence
offered no protection.
Without disclosure, there's nolegal record or of a disability
or request for accommodation.
The employer will then beincentivized to frame the issue
as one of performance, not ofdiscrimination.
(12:35):
That strategy right there isthe primary strategy most
employers use.
They can find that this persondid not request, they're going
to attack the issue and thenblame it everything on
performance.
Understanding your rightseasily can prevent that spiral
speaking up, using medicallanguage, requesting
accommodations in writing, anddocumenting interactions all
create a clear timeline for ifdiscrimination later occurs.
(12:56):
Attorneys can then connect thedots between the notice,
retaliation, and adverse action.
Pretty easy case to prove.
Courts interpret disabilitybroadly.
When Congress passed theamendments to the ADA, it sent a
clear message to the courts.
The definition of disabilitymust be interpreted expansively,
not narrowly.
I had the misfortune ofstarting my career before the
amendments, and I can tell you Iread many a case from many a
(13:18):
liberal judge who said youdidn't have a disability.
And it was pretty tragic for anumber of years that this
happened, and many people had towell, they didn't have a case.
So we had the amendments byCongress, and we now broadly
construe disability.
Since then, decisions acrossthe country have been reinforced
that the law's reach isintentionally broad, covering
not only permanent conditions,but also temporary and episodic
(13:41):
impairments that substantiallylimit major life activities.
This wide recognition is notlimited to just the traditional,
but more liberal courtjurisdictions also follow it.
Following examples the case ofsome nurses alterum, the case
involved the plaintiff whosuffered severe leg injuries
that required months ofrecovery.
Even though his condition wastemporary, the court held that
(14:01):
the injuries substantiallylimited his ability to walk and
thus met the EDA's definition ofdisability.
The message was unmistakable.
The duration of an impairmentdoes not determine whether it is
protected.
The impact does.
A similar principle emerged inGOGO's versus AMS Medical
Symptoms systems, where a workerexperienced intermittent vision
loss and spikes in bloodpressure, though the episodes
(14:23):
weren't brief.
The court concluded that theylimited major life activities
such as vision and circulatoryfunction, qualifying him for an
ADA protection and allowing himto build a case.
Because if you don't have adisability, you don't have the
ability to prove a case ofdiscrimination.
In Jacobs versus North Carolinaadministrative office of the
courts, yes, it candiscrimination can happen in the
courts as well, their places ofemployment.
(14:44):
The court recognized thatsocial anxiety disorder could
substantially limit a person'sability to interact with others,
and therefore anxiety wasdetermined to impact a major
life activity under the statute.
The decision signaled animportant shift.
Mental and emotional conditionsdeserve the same level of
protection as physical ones.
Together, these rulingsillustrate consistent judicial
philosophy that the ADA'scoverage is meant to be
(15:06):
inclusive and not restrictive.
Courts no longer ask whethersomeone is truly disabled.
Instead, the inquiry focuses onwhether the condition affects
the employees' dailyfunctioning.
That threshold is intentionallylow, ensuring that workers
receive the benefit of the doubtand the full protection
Congress intended.
I will tell you that it is acurrent new trend in courts to
allow employees furtherprotections and lower burdens of
(15:29):
proof, as the Supreme Courtrecently said, how much harm the
employees must demonstrate togain protection under the
statutes.
We know how confusing andisolating these situations can
feel.
Many of our clients come to usbelieving they have no case
until we explain to them thatthe law actually sees their
situation.
Our role is to bridge thatknowledge gap and hold employers
(15:49):
accountable when they misuseand ignorance is a defense.
We help clients, we helpclients by identifying coverage,
evaluating whether yourcondition qualifies as a
disability under the statutes,state and federal and even New
York City ones, local, sorry,navigating disclosure, advising
how to notify your employer andrequest accommodation
strategically, documentingretaliation, preserving emails,
(16:11):
evaluations, and meeting notesthat show shifting treatment
after disclosure, negotiatingand litigating, pursuing
reinstatement, back pay,compensatory damages, and
emotional distress rewards wherewarranted, preventing future
harm, requiring employers toadopt written ADA compliance
policies and training as part ofa settlement.
I think they hate that one.
They never want to agree tothat in settlement.
Finally, an employment lawattorney litigates cases under
(16:34):
the ADA in state and in New YorkCity law, as well as the
Feminine Medical Leave Act andretaliation statutes that often
all overlap at the same time.
But that's what the employmentlawyer does.
You shouldn't have to thinkabout that.
We combine legal precision withcompassion for clients
navigating health challengeswhile protecting their
livelihoods.
You should empower yourselfthrough knowledge.
If you've been struggling witha medical condition at work,
(16:57):
physical or psychological, don'tassume you must suffer in
silence or just tough it out.
The law exists precisely toprotect employees from being
punished for being human.
Disability accommodations arenot favors.
They are rights grounded infederal, state, and local
statutes.
And understanding those rightsallows you to act early,
communicate clearly, and protectyour career.
Whether your issue involvesmental health, chronic illness,
(17:20):
pregnancy complications, or postinjury recovery, legal
protection likely applies.
You may be disabled under thelaw, and that's not an insult.
It's a recognition thatequality sometimes requires
adjustment.
The sooner you recognize thetruth, the sooner you can take
back control of your work life.
Hope you enjoyed the episode.
Talk to you soon.
Hey, it's Mark.
Welcome back to the nextedition of the Employee Survival
Guide, where I tell you whatyou really need to know.
Today's topic.
You may be protected and notknow it, understanding
disability rights in theworkplace.
The hidden problem when workersdon't realize they're disabled.
Every week, employees acrossthe country face challenges at
work, fatigue, anxiety,migraines, chronic back pain, or
(00:40):
depression.
Yet these workers neverconsider that these conditions
might qualify as disabilitiesunder state and federal law.
They keep working harder,downplaying their symptoms, and
sometimes even apologizing fornot needing flexibility.
When an employer laterpenalizes or terminates them for
attendance issues orperformance decline, the
employee only learns after thefact that they may have been
(01:02):
protected all along under theAmericans with Disabilities Act,
the ADA, or its state and localequivalents.
There's a problem that workersoften misunderstand, what
disability actually means.
Legally, disability is not apersonal failing, nor does it
require a visible or severelimitation.
You may not know it, but I havea disability that you can't
(01:23):
see.
It's actually not visible.
It's dyslexia.
Many people have it.
The ADA defines disability farmore broadly than most people
realize.
But if an employee neveridentifies as disabled, never
requests an accommodation, andnever gives notice, the law's
protections may never come intoplay.
We regularly see clients whoonly learned they were disabled
(01:43):
after they have already losttheir jobs.
I will correct thatmisunderstanding and show you a
broad how broad the law truly isand why the stigma keeps people
silent, and what stepsemployees can take to assert
their rights before theiremployers can take advantage of
those delays.
The stigma of disability.
Despite three decades ofprogress under the ADA, the
stigma surrounding disabilityremains largely ingrained in our
(02:06):
culture.
For many employees, especiallyprofessionals in competitive
industries, the labeled disabledfeels incompatible with the
image they've worked so hard tomaintain.
They fear it implies weakness,unreliability, or diminished
capacity.
Some worry about being passedover for promotions at the work,
others being pitied ormicromanaged.
(02:28):
This culture, or the culturaldiscomfort with the label of
disability, can often lead tosilence by workers.
A project manager with panicdisorder may avoid mentioning
side effects of medicine theymay need to take.
A software engineer withCrohn's disease may not disclose
the need for flexible bathroombreaks.
An executive experiencingpostpartum depression may
(02:49):
dismiss it as just stress.
Even medical professionals,doctors, nurses, and physician
assistants often hide their ownmental, emotional, and physical
status for fear of professionalscrutiny.
They may worry that disclosurecould jeopardize hospital
privileges, trigger reportingobligations, or call their
clinical judgment into question.
Unfortunately, those mosttrained to recognize and treat
(03:11):
health conditions often receivethe least compassion when they
face their own.
These individuals can likelymeet the technical definition of
disabled under the law, butfear of stigma keeps them from
saying so.
The reality is that the ADA wasdesigned to destigmatize
disability by shifting the focusfrom what a person can't do to
what they can do with reasonablesupport.
(03:33):
Congress explicitly rejectedthe old model of total
disability that required visibleimpairment.
The law's goal is inclusion,not separation.
Yet stigma lingers becauseworkplaces still reward
endurance over honesty.
Employees worry that disclosurewill change how they're
perceived.
Managers often receive littletraining on handling
(03:55):
accommodations appropriately,and I will tell you that by
experience over my long career.
Recognizing the social dynamicis critical.
Refusing the label of disableddoes not erase the legal status.
It only potentiallydisqualifies someone from
benefiting from protections theymight otherwise have been able
to receive.
What matters is whether acondition substantially limits a
(04:18):
major life activity, notwhether an employee identifies
as disabled.
Accepting this broaderdefinition can empower workers,
including those in medicine andother demanding professions,
like the law, to seekadjustments, like modified
schedules, peer support, orshort-term leave that allow them
to keep thriving bothpersonally and professionally.
(04:38):
But what counts as a disabilityunder the law?
The ADA, in its 2008amendments, define disability in
three overlapping ways.
An actual impairment thatsubstantially limits one or
major life activities, two, arecord of such impairment, even
if it's not currently limitingyou.
And three, being regarded ashaving such an impairment
whether or not one exists.
Major life activities include awide range of physical and
(05:01):
mental functions.
These are basic acts such aswalking, sleeping,
concentrating, communicating,working, lifting, thinking, and
many others.
The ADA explicitly instructscourts to interpret
substantially limits broadly infavor of coverage.
What this means is that manycommon and invisible conditions
will disqualify or will wellqualify, such as anxiety,
(05:25):
depression, ADHD, diabetes,autoimmune disorders, migraines,
and recovery from surgery.
So do episodic conditions thatflare up over time.
The focus, as explained by theEEOC, the Equal Employment
Opportunity Commission, shouldnot be on whether the impairment
is severe, but whether itlimits the person's ability to
perform everyday activitiescompared to most people in the
(05:46):
general population.
State laws may provideprotections that go even
further.
For example, in Connecticut, wehave the Connecticut Fair
Employment Practices Act, andmost states have one as well,
that protect employees from anychronic condition or past
history of impairment thatimpacts work.
In New York, disability isdefined to include conditions
that merely prevent the normalexercise of a bodily function.
(06:08):
A notable expansive standard.
While in California, the FairEmployment and Housing Act
protects even temporaryconditions if they limit major
life activities.
Together, these statutes makeclear you don't need to be in a
wheelchair, blind or permanentlyunable to work to be disabled.
If your health conditionaffects your functioning, and
especially if your employerknows about it, you are likely
(06:29):
entitled to protections.
Here are the basic criteria forprotection.
A common myth is that anemployee must formally declare,
I have a disability under theADA.
However, the law recognizesthat most employees aren't
lawyers and may not know theseterms.
Instead, an employee only needsto put the employer on notice
that they have a medicalcondition affecting their
ability to perform the job.
(06:50):
For example, telling yoursupervisor, I'm having an
anxiety attack and I might needto work from home once a week is
enough to trigger theemployer's duty to engage in
what's called the interactiveprocess.
Requesting time off forsurgery, treatment, or recovery
signals a need foraccommodation.
Even informal discussions suchas emailing HR about a health
issue or giving a doctor's notecan count.
(07:12):
Then once in notice, theemployer must initiate a
dialogue to determine thereasonable accommodations.
This is the interactiveprocess.
Think about like talking likeadults, or just normal
conversation.
They can request limitedmedical documentation, meaning
the employer, but they cannotignore or punish the disclosure
you just made that you want, youhave a disability, you need
some assistance.
When employers fail to respond,or worse, retaliate, they
(07:34):
violate the ADA.
And that's where I come in,which, you know, I don't like
coming in, yeah, but that's whatwe do.
What counts as disabilitydiscrimination?
It takes a form of many forms,but both over and subtle.
At its core, it occurs when anemployer treats an employee less
favorably because of adisability or perceived
disability.
Examples include refusing tohire or promote an individual
(07:55):
after learning of a medicalcondition.
That happens a lot.
Denying a requestedaccommodation without showing
that it causes undue hardship.
Ironically, that happens a lot.
A terminating or discipliningan employee for using leave,
attending medical appointments,or taking time off to recover,
again, it happens a lot.
We deal with it.
Creating a hostile environmentthrough jokes, gossip, or
(08:16):
persistent questioning abouthealth, people are really
inhumane and they do it quiteoften.
Retaliating after an employeerequests accommodation or files
for an ADA complaint, thathappens far too often.
The regarded as provisioncovers even cases where the
employer's assumptions arewrong, such as believing the
employee where the past injuryis too fragile for certain work.
(08:37):
Under the ADA, no proof ofsubstantial limitations required
in regarded as cases, onlyevidence that the employer took
an adverse action because of theperceived impairment.
The regarded as prong cameabout, I imagine, to my research
over the years.
Everyone remembers the TomHanks film where he had AIDS.
And Congress believed that backin the 80s, you know, when this
(09:00):
happened, that they would put aprovision provision in there to
uh cover that condition.
It's a good prong of the ADA,and I'm glad it's there.
I've used it quite often.
And in the same time I've usedit with the other prongs of the
ADA disability.
But back to the topic.
Courts have repeatedly affirmedthat timing matters when
adverse actions closely followdisclosure or accommodation
(09:23):
requests.
The inference of retaliation isstrong.
So we're looking for that nexusbetween the time you ask or
tell them you need help and whatthey did after that.
Here's what they're supposed todo.
They're supposed to have aninteractive process, like I
said.
Once an employee discloses adisability or requests support,
the employer must engage in agood faith interactive process.
What the hell's good faith?
It means an honest discussion,not one where there's an agenda
(09:48):
by the employer to set you upunder a pip or something like
that.
This means more than a singleemail.
It requires an opencommunication, many
communications about whataccommodations might work.
Reasonable accommodations caninclude a modified work schedule
or remote work options, whichis common these days
post-pandemic.
Reallocation of marginal jobfunctions, ergonomic work
(10:09):
stations, assistive devices,paid or unpaid leave for medical
treatment, short-termdisabilities, that's what that
fits into, and Femine MedicalLeave covers that as well.
Adjustment of performancemetrics and supervision methods.
I will point out that there's afederal government agency.
It's called the JobAccommodation Network.
And you can go to it on a URL,ask A S-K, Jan Jn.gov.
(10:31):
So ask Jan.gov.
And what we and I have donethis effectively, I've used JAN
and have communicated my use ofJAN to the employer and invited
them to a communication orconversation where the person at
Jan gets up, they do a case,set up a new case, and they
begin to work through whatpossible accommodations the
employee might need.
And it forces the employer'shand to discuss.
(10:52):
And they hate this.
But it's a way to demonstratethat you've did it and that you
protect yourself under the ADA.
So remember, ask JAN atA-S-K-J-N-J-A-N.gov, and use
that to free the service of thefederal government, your
taxpayer dollars at work.
Employers are not required toprovide accommodations that
impose undue hardship,significantly difficulty or
(11:13):
expense.
However, most accommodationsdon't cost very much, if
anything, at all.
However, they cannot rely onassumptions or convenience.
The law expects them to exploreoptions, document the
discussion, and propose workablesolutions.
And I suggest you document yourdiscussions as well as they
would, and you basically useyour email to do that.
(11:33):
For example, you would set up acommunication or a teams
meeting and saying we're havingthis meeting, and then summarize
the meeting after you get offin an email.
It's time stamped, you can'tget rid of it.
When employers skip thisprocess by unilaterally denying
requests, insisting on afull-time presence despite
medical limits, or ignoringcommunications, they risk
liability.
Courts routinely hold thatfailure to engage in the
(11:54):
interactive process is in and ofitself evidence of
discrimination and adverseaction.
The emotional toll beingmisunderstood.
For employees with invisibledisabilities, like the one I
have, dyslexia, which is verycommon, the workplace can become
emotionally exhausting.
Many spend months overcoming orovercompensating, staying late,
masking symptoms, and trying toprove that nothing is wrong.
(12:14):
When their performance isinevitably dips, they face
criticism or suspicion insteadof compassion.
At that moment, the employeerealizes too late that silence
offered no protection.
Without disclosure, there's nolegal record or of a disability
or request for accommodation.
The employer will then beincentivized to frame the issue
as one of performance, not ofdiscrimination.
(12:35):
That strategy right there isthe primary strategy most
employers use.
They can find that this persondid not request, they're going
to attack the issue and thenblame it everything on
performance.
Understanding your rightseasily can prevent that spiral
speaking up, using medicallanguage, requesting
accommodations in writing, anddocumenting interactions all
create a clear timeline for ifdiscrimination later occurs.
(12:56):
Attorneys can then connect thedots between the notice,
retaliation, and adverse action.
Pretty easy case to prove.
Courts interpret disabilitybroadly.
When Congress passed theamendments to the ADA, it sent a
clear message to the courts.
The definition of disabilitymust be interpreted expansively,
not narrowly.
I had the misfortune ofstarting my career before the
amendments, and I can tell you Iread many a case from many a
(13:18):
liberal judge who said youdidn't have a disability.
And it was pretty tragic for anumber of years that this
happened, and many people had towell, they didn't have a case.
So we had the amendments byCongress, and we now broadly
construe disability.
Since then, decisions acrossthe country have been reinforced
that the law's reach isintentionally broad, covering
not only permanent conditions,but also temporary and episodic
(13:41):
impairments that substantiallylimit major life activities.
This wide recognition is notlimited to just the traditional,
but more liberal courtjurisdictions also follow it.
Following examples the case ofsome nurses alterum, the case
involved the plaintiff whosuffered severe leg injuries
that required months ofrecovery.
Even though his condition wastemporary, the court held that
(14:01):
the injuries substantiallylimited his ability to walk and
thus met the EDA's definition ofdisability.
The message was unmistakable.
The duration of an impairmentdoes not determine whether it is
protected.
The impact does.
A similar principle emerged inGOGO's versus AMS Medical
Symptoms systems, where a workerexperienced intermittent vision
loss and spikes in bloodpressure, though the episodes
(14:23):
weren't brief.
The court concluded that theylimited major life activities
such as vision and circulatoryfunction, qualifying him for an
ADA protection and allowing himto build a case.
Because if you don't have adisability, you don't have the
ability to prove a case ofdiscrimination.
In Jacobs versus North Carolinaadministrative office of the
courts, yes, it candiscrimination can happen in the
courts as well, their places ofemployment.
(14:44):
The court recognized thatsocial anxiety disorder could
substantially limit a person'sability to interact with others,
and therefore anxiety wasdetermined to impact a major
life activity under the statute.
The decision signaled animportant shift.
Mental and emotional conditionsdeserve the same level of
protection as physical ones.
Together, these rulingsillustrate consistent judicial
philosophy that the ADA'scoverage is meant to be
(15:06):
inclusive and not restrictive.
Courts no longer ask whethersomeone is truly disabled.
Instead, the inquiry focuses onwhether the condition affects
the employees' dailyfunctioning.
That threshold is intentionallylow, ensuring that workers
receive the benefit of the doubtand the full protection
Congress intended.
I will tell you that it is acurrent new trend in courts to
allow employees furtherprotections and lower burdens of
(15:29):
proof, as the Supreme Courtrecently said, how much harm the
employees must demonstrate togain protection under the
statutes.
We know how confusing andisolating these situations can
feel.
Many of our clients come to usbelieving they have no case
until we explain to them thatthe law actually sees their
situation.
Our role is to bridge thatknowledge gap and hold employers
(15:49):
accountable when they misuseand ignorance is a defense.
We help clients, we helpclients by identifying coverage,
evaluating whether yourcondition qualifies as a
disability under the statutes,state and federal and even New
York City ones, local, sorry,navigating disclosure, advising
how to notify your employer andrequest accommodation
strategically, documentingretaliation, preserving emails,
(16:11):
evaluations, and meeting notesthat show shifting treatment
after disclosure, negotiatingand litigating, pursuing
reinstatement, back pay,compensatory damages, and
emotional distress rewards wherewarranted, preventing future
harm, requiring employers toadopt written ADA compliance
policies and training as part ofa settlement.
I think they hate that one.
They never want to agree tothat in settlement.
Finally, an employment lawattorney litigates cases under
(16:34):
the ADA in state and in New YorkCity law, as well as the
Feminine Medical Leave Act andretaliation statutes that often
all overlap at the same time.
But that's what the employmentlawyer does.
You shouldn't have to thinkabout that.
We combine legal precision withcompassion for clients
navigating health challengeswhile protecting their
livelihoods.
You should empower yourselfthrough knowledge.
If you've been struggling witha medical condition at work,
(16:57):
physical or psychological, don'tassume you must suffer in
silence or just tough it out.
The law exists precisely toprotect employees from being
punished for being human.
Disability accommodations arenot favors.
They are rights grounded infederal, state, and local
statutes.
And understanding those rightsallows you to act early,
communicate clearly, and protectyour career.
Whether your issue involvesmental health, chronic illness,
(17:20):
pregnancy complications, or postinjury recovery, legal
protection likely applies.
You may be disabled under thelaw, and that's not an insult.
It's a recognition thatequality sometimes requires
adjustment.
The sooner you recognize thetruth, the sooner you can take
back control of your work life.
Hope you enjoyed the episode.
Talk to you soon.
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