SUMMARY OF LAWS FOR FOLKS WITH DISABILITIES
Another important area of law, especially as our population ages, is Disability Law. The rights of people with disabilities is protected under a network of federal, state, county, and local (Iincluding New York City) laws, rules, and regulations.Disability laws also allow those who have suffered discrimination access to various avenues to redress their wrongs, injustice(s) disabled folks face every day.
The key laws affecting the rights of those with disabilities (we eschew the term "handicapped" but some parties and/or laws still use it) are: The Americans with Disabilities Act of 1990 and the Americans With Disabilities Amendments Act of 2008 (collectively referred to as the “ADA”), 42 USC § 12101 et. seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et. seq., (“Rehab Act”), Article 15 of the New York State Executive Law, a.k.a. the New York State Human Rights Law (“NY HRL”), with a comparable NYC Human Rights Law, The Family and Medical Leave Act ("FMLA), and Title VII of the Civil Rights Act of 1964.
Tip on understanding what is "law": Many statutes may seem wordy to the average person yet even so, a passed piece of legislation (statute) still cannot cover every scenario that arises. Thus, regulations (passed by a legislative body, such as U.S. Congress) and case law (decided by a judicial body, such as in court), "interpreting" that law and applying it to the facts at hand, fill in the blanks and make up the "law". Thus, a large body of federal law, such as the ADA, is made up of the statute itself as passed by U.S. Congress, the "implementing regulations" created by the agency Congress decided should carry out the finer points of the legislation/statute, the "promulgating regulations" to fill in the blanks, as discussed above, and the courts' applications of these statutes and regulations to the facts of cases that come before it.
In the case of the ADA, the implementing regulations are carried out by the Justice Department and are found in the Code of Federal Regulations ("C.F.R."), and case law further completes the body of law. This explanation is vastly simplified, and there are many rules on how much weight to give a regulation, on whether the decision of one court should bind another or be persuasive and all of this is open to judicial interpretation.
SERVICE ANIMALS AND THE AMERICANS WITH DISABILITIES ACT
A "Service Animal" ("SA") is a legal term . The law(s) essentially treat a SA as an "instrument" helping folks with disabilities, something that covered entitities must accommodate (like a wheelchair ramp and widened door, ergonomically correct chair, prosthetic, etc.). SA can go pretty much everywhere a member of the public normally can go (and, of course, to go to work with the person with disabilities). There are some differences between the laws in what type of animal is covered but, essentially, the ADA is the federal "big gorilla" that covers all SA for the "disabled", as defined by the law, in the country. New York State and NY City Human Rights Laws also have rules and states are permitted to broaden the scope of federal law, as these two sets of law do. The Federal Housing Act comes into play for housing, and there are myriad local rules that may increase the
rights of individuals with disabilities. A guide book issued by the United States Department of Justice, the agency charged with enforcing federal law, is available at http://www.ada.gov/service_animals_2010.htm
The ADA trumps other laws, such as FDA regulations. However, there are several caveats. For example, sometimes certain case law used to circumvent the ADA and sometimes, the ADA may appear to not trump Collective Bargaining Agreements where the disabled worker has less seniority than other workers who want the reasonable accommodation, such as a midnight tour slot, in labor cases. However, the case law actually held this is not always the case, and it requires a fact-specific analysis. However, some employers and union attorneys, including for Verizon and the Communication Workers of America have tried arguing that they don't have to make reasonable accommodations for a disabled person, very sad. They have destroyed lives with this so be careful if you are in a union or even a non-union worker, especially with Verizon and/or the CWA, and speak with an attorney before something bad happens, such as you losing your job or being placed on such serious probation, in Verizon and the CWA, known as "steps" that the next little thing you do, like accidentally drop your company phone, results in firing. True stories and I have heard the same scenarios over and over, providing concurrent validity.
Federal regulations under the ADA specifiy that a SA is any guide dog, signal dog or other animal that has been trained to perform tasks for individuals with disabilities. The term “service animal” is key. Most people think of seeing-eye dogs and people who are visually-impaired when they think of service animals but there is so much more service animals can do for folks with disabilities, including sensing seizures and/or diabetic issues, and going into warning and protect mode, in case the disabled person passes out or something. They can alert to all kinds of other things, like doorbells, smoke or CO2 alarms, intruders, the arrival of a home health care aide or family member, and so much more. There is also a big issue with the differences between Service Animals and Therapy dogs under all the various laws, rules and regulations (see below (i)).
The ADA DID use the term SA, as opposed to Service Dog or Guide Dog, for two main reasons: because people are using other types of animals for various reasons and/or are using dogs for other types of disabilities. HOWEVER, in 2011, the Department of Justice revised the promulgating regulations of the ADA and now "Service Animals" includes only dogs. See:http://www.ada.gov/regs2010/titleII_2010/titleII_2010_fr.pdf
The main federal law covering service animals is found in the ADA (42 U.S.C. Chapter 126 "EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES") Titles II and III, along with their implementing regulations (CFRs). Congress charged the Justice Department with issuing regulations ("implementing regulations") to carry out provisions of the ADA Titles II and III. Provisions regarding service dogs are found in §§ 28, 29, 47, 48 and 49 of the Code of Federal Regulations (C.F.R.)
Under the ADA, the term “disability” means, with respect to an individual— (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. [42 U.S.C. § 12102 (2)]
Title II prohibits discrimination on the basis of disability in all services, programs, and activities provided by State and local governments, including public transportation services. Title III prohibits discrimination on the basis of disability in “places of public accommodation” (businesses and non-profit agencies that serve the public) and “commercial facilities” (other businesses that serve the public). New York State Law, other laws, and the ADA, along with its promulgating regulations (found in the C.F.R., as discussed above) provide that service animals must be permitted in all areas of a facility where customers are generally permitted. This applies to all businesses open to the public, including restaurants, hotels, taxis,shuttles, grocery and department stores, hospitals and medical offices, theatres, health clubs, parks, and zoos. Violators of the ADA can be required to pay money damages and penalties and the prevailing party can be reimbursed for legal fees as well.
People with disabilities who use service animals cannot be isolated from other patrons or treated less favorably than other patrons. They also cannot be charged extra fees (unless, of course, the service animal causes damage, just as a landlord or hotel can charge any person for damage caused by the people and/or pets in the rental). For example, a landlord can charge a person a $200 per pet fee plus the usual security deposit, for tenants with pets (which one of my clients on an unrelated case mentioned she had to pay and I had to tell her it is legal). However, the landlord could not have charged that $200 per animal fee if those were service animals. Ditto for hotels that charge $30 per night for each pet-they can legally charge a fee for pets but not for service animals. On the other hand, damage done by her son or dog are treated exactly the same-she has to pay for a big hole in a wall regardless of whether her son, dog, or service dog did the damage.
Businesses DO have the right to ask if an animal is an SA or ask what special tasks the animal has been trained to perform but cannot require special ID cards for the animal or the person, demand paperwork, or ask about the person’s disability. However, since this questioning can make some people uncomfortable, some people choose to have their service animals wear a vest, usually provided by the training organization. Some municipalities, including NYC, issue ID cards the person can take out to simplify this process but these are NOT necessary per se. However, they are a good idea to have because, to put it bluntly, they can, hopefully, quiet uneducated, poorly trained individuals. For example, in order to get a NYC Service Animal card, one must go through a "vetting" process, not unlike the process disabled individuals go through to get a handicapped parking permit that allows individuals to park on City streets. Note that these are unlike the blue tags many people have that allows them to park in handicapped spaces. The NYC handicapped permits are very tough to get, as you can imagine due to what they can do in such a city as NYC, just as the Service Dog license system uses careful screening. There is no formal body of law, however, stating Service Animals must be specifically trained and how they are certified. Thus, as long as you have a note or something like a prescription stating you are disabled and your need for a Service Animal, even if you can't specifically state your Service Animal has been trained to, for example, listen for danger, in the case of a person disabled due to hearing, you may not be banned from entering any place where a member of the public can go and keeping your Service Animal in your apartment, rented house, condominium, co-op, housing development, etc. even if it has a "no pets" policy or a policy prohibiting the size Service Animal you have (e.g. 70 pound Labrador Retriever).
Businesses that sell or prepare food must allow the service animal in public areas even if federal, state or local health codes prohibit animals on the premises. Allergies and fear of animals are generally not valid reasons for denying access or refusing service to people with service animals. Even FDA regulations prohibiting animals in a manufacturing facility (in this case, a brewery tour) may be held to be superseded by the ADA. (Franklin Johnson v. Gambrinus Company/Spoetzl Brewery, 109 F. 3d 1040, 5th Cir., June 25, 1997). Failure to do so can subject the business to a federal civil rights lawsuit, even if the person does not suffer any outward harm. In fact, that is what happened in the Johnson case just mentioned.
There is an exception to the law; the person with the service animal can be asked to remove the service animal if the animal is out of control and the owner does not take action to control him/her (for example, barking at a movie) or the animal poses a direct threat to the health or safety of others (e.g. growling when not necessary).
However, in those circumstances, the business should try to provide the person with the option to obtain the goods and/or services without the service animal on the premises where practical (e.g. bring the pizza outside when it is ready, get the milk and such the person with a disability came to the supermarket for, etc.). Failure to do so can subject that business to a federal civil rights lawsuit.
(i) SERVICE ANIMALS AND EMOTIONAL SUPPORT ANIMALS (aka THERAPY or PTSD ANIMALS), INCLUDING THE FAIR HOUSING ACT
This is something that comes up frequently and can be a gray area. One of the confusing issues out there is the difference between a service dog and an Emotional Support Animal and why it matters. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104 (the sections of the federal regulation that apply to service animals for public entities and for places of public accommodations respectively), both define service animal in the same way. Under those regulations, a service animal is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. 28 C.F.R. § 35.104 and 28 C.F.R. § 36.104. The work or task performed by the service animal has to be directly related to the handler’s disability. Id. The regulations then go on to give examples of what such work or tasks may include. According to the regulations, such work or tasks may include but is not limited to: assisting individuals who are blind or have low vision with navigation and other tasks; alerting individuals who are deaf or hard of hearing to the presence of people are sounds; providing nonviolent protection or rescue work; pulling a wheelchair; assisting an individual during a seizure; alerting an individual to the presence of allergens; retrieving items such as medicine or the telephone; providing physical support and assistance with balance and stability to individuals with mobility disabilities; and helping persons with psychiatric and neurological disability by preventing or interrupting impulsive or destructive behaviors. Id. The regulations go on to say that, “the crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Id. (emphasis added).
Before moving on further, a couple of points are in order. First, while not specifically listed in the definition of a service animal, in a separate section of the regulations, miniature horses get protection. See 28 C.F.R. § 35.136(i) and 28 C.F.R. § 36.302(c)(9); the Department of Justice regulations pertaining to the inclusion of miniature horses with respect to ADA Title II and Title III en
Illustrative articles on ESAtities, respectively. Miniature horses have been trained as an alternative to dogs because a Service Dog can only work a short time, maybe 7 years-it can take 2 years to train and then they age, just like the rest of us, but, of course, die at perhaps 10, 12 or so. There are other problems being ironed out, such as issues with spooking, which is why, in Manhattan, crowded as it is, you may not see many, if any.
Second, what I am writing about today is specifically focused on the Americans With Disabilities Act and the Department of Justice regulations. Other laws out there, such as the Fair Housing Act, have different statutory provisions and regulations that may also impact on the situation. These will be posted later, with some links to excellent articles will be provided. In short, though, the FHA and other laws should always be considered where, for example, a landlord wants to evict a person with a Service Animal or ESA/Therapy dog. For pets, NYC and Westchester, for example, have grandfathering provisions to allow the dog to stay even if, under other laws, the landlord could have required eviction or removal of the pet. Many other jurisdictions have that but as of this writing (August 29, 2014), we don't have it for Suffolk County or Nassau County.
Illustrative articles regarding the ESA and FHA, especially helpful with those who need an ESA but the landlord, co-op board or condo board says no or threatens eviction.
http://www.bazelon.org/LinkClick.aspx?fileticket=mHq8GV0FI4c%3D&tabid (this one is not as up-to-date as I would like on SA because the ADA was revised in 2008 and this booklet discussed Psychiatric Service Dogs. However, it has info on the studies done showing ESAs are very useful
28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6) (the sections of the regulations that apply to the inquiry that may be made of service animal by public entities and places of public accommodations respectively), both limit the inquiries that can be made when someone shows up with an animal at the public entity or at the place of public accommodation. The inquiries they can make are whether the animal is required because of a disability of that person and what work or task the animal has been trained to perform. 28 C.F.R. § 35.136(f) and 28 C.F.R. § 36.302(c)(6). However, those inquiries cannot be made if it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability. Id.
So here’s where some confusion comes into play; under the Americans with Disabilities Act, service dogs must be allowed into the place of public accommodation or into the public entity. However, dogs that are not working or providing a task, as the Department of Justice defines/sees it, but are instead there to keep the person with a disability calm, are not protected by this regulation because those animals are providing emotional support, well-being, comfort, or companionship rather than are "working" or performing a task for the handler. The other problem with the confusion is that the ADA is not the only law in play. For example, the Fair Housing Act and their regulations do allow for emotional support animals in housing, but not public places, such as a restaurant. NY State and NYC have Human Rights Laws that use the ADA as a baseline and go further. States can implement their own laws even if there is a federal law as long as it provides as much, or more, of whatever the law seeks, such as protection for disabled individuals.
All of this leads to the following. First, if a public entity or a place of public accommodation is faced with the situation where a person shows up with a dog and wants to take it into the public entity or a place of public accommodation and it is not obvious that the dog is performing work or a task for the handler, the public entity or the place of public accommodation can make the inquiries noted above. However, since the inquiries are limited, making the inquiries may not be terribly helpful. For example, if the person with a disability is knowledgeable enough about the distinction between service dogs and emotional support dogs, the person with a disability might frame his/her response in terms of the dog performing work or a task even though the dog is in fact a dog providing emotional support and not "working". At that point in time, the public entity or place of public accommodation is in a situation where caution should be taken and underscores the need for training of personnel when dealing with these situations.
The other thing that all this does is set up a situation where a person may sue under laws that DO allow for emotional support dogs and completely ignore the ADA. That is exactly what happened in United States v. University of Nebraska at Kearney, 2013 WL 1694603 (D. Neb. April 19, 2013). In that case, the Department of Justice brought suit on behalf of a person who enrolled at the University and wanted to stay in a dormitory with her Emotional Support Dog. The University denied the request. As a result, after a few weeks, the plaintiff withdrew from classes and moved out of the dormitory. The Department of Justice filed suit under the Fair Housing Act and sought summary judgment for the principle that the Fair Housing Act applied to the dormitory. They won.
To summarize: service dogs and Emotional Support Animals are not the same thing. Also, if you are a victim of Service Animal Discrimination or ESA Discrimination, a very strong argument might be made that the entity failed to train its employees properly because this area of law is not as well known as it should be. Your attorney should be careful because an employer is responsible for proper training, in ANY case, bus driver, forklift operator, store manager, etc. but in some case, employers get away with this argument.
For more info regarding the ADA and service animals, I have the info on this document-just e-mail me and I will gladly send it. You can also call the ADA hotline they even have the TTY service for the hearing impaired. (800) 514-0031 (voice); (800) 514-0383 (TTY); www.ada.gov. More info on animal law can be found at the New York State Bar Association's website at www.nysba.org. They also have a great pamphlet “Animal Law in New York State” which gives a good nutshell view of this topic and copies are available in the waiting room of my office. https://www.nysba.org/A41338AnimalLaw/
Important HUD release regarding Service Animals (HUD uses the term "assistance animals")
"HUD No. 13-060A, Tuesday, April 30, 2013
HUD ISSUES NOTICE ON ASSISTANCE ANIMALS AND REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES
WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) today issued a notice reaffirming that housing providers must provide reasonable accommodations to persons with disabilities who require assistance animals. The “Notice on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs” discusses how the Fair Housing Act and the Americans with Disabilities Act (ADA) intersect regarding the use of service or assistance animals by persons with disabilities.
The Fair Housing Act prohibits landlords from discriminating based on disability, race, color, national origin, religion, sex, and familial status. The ADA prohibits discrimination against people with disabilities in employment, transportation, public accommodations, communications, and state and local government activities. Both laws contain provisions which address the use of service or assistance animals by people with disabilities. While the Fair Housing Act covers nearly all types of housing, some types of housing, such as public housing, are covered by both laws.
“The vital importance of assistance animals in reducing barriers, promoting independence, and improving the quality of life for people with disabilities should not be underestimated, particularly in the home,” said John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity. “Disability-related complaints, including those that involve assistance animals, are the most common discrimination complaint we receive. This notice will help housing providers better understand and meet their obligation to grant reasonable accommodations to people with disabilities that require assistance animals to fully use and enjoy their housing.”
HUD’s new notice explains housing providers’ obligations under the Fair Housing Act, including the requirement to provide reasonable accommodations to people with disabilities who require assistance animals. Pet restrictions cannot be used to deny or limit housing to people with disabilities who require the use of an assistance animal because of their disability. Housing providers must grant reasonable accommodations in such instances, in accordance with the law. The guidance also describes the Department of Justice’s revised definition of “service animal” under the ADA, as well as housing providers’ obligations when multiple nondiscrimination laws apply.
The Americans with Disabilities Act requires equal access for people with disabilities using trained service dogs in public accommodations and government facilities. Under the Fair Housing Act, housing providers have a further obligation to accommodate people with disabilities who, because of their disability, require trained service dogs or other types of assistance animals to perform tasks, provide emotional support, or alleviate the effects of their disabilities, meaning, Emotional Support Animals.
HUD’s and the Department of Justice’s Joint Statement on Reasonable Accommodations provides additional information regarding housing providers’ obligations to provide reasonable accommodations. The Department of Justice has also published a fact sheet on service animals and the ADA.
The actual notice is at: http://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf
Persons who believe they have been denied a reasonable accommodation request may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 927-9275 (TTY). Housing discrimination complaints may also be filed by going tohttp://www.hud.gov/fairhousing, or by downloading HUD’s free housing discrimination mobile application, which can be accessed through Apple devices, such as the iPhone, iPad, and iPod touch.###HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build inclusive and sustainable communities free from discrimination; and transform the way HUD does business.
More information about HUD and its programs is available at http://www.hud.gov
You can also follow HUD on twitter @HUDnews, on facebook at
http://www.facebook.com/HUD, or sign up for news alerts on HUD’s News Listserv
EMPLOYMENT FOR THE DISABLED UNDER THE AMERICANS WITH DISABILITIES ACT
Employment for the disabled is covered under Title I of the ADA. (42 U.S.C. Chapter 126 "EQUAL OPPORTUNITY FOR INDIVIDUALS WITH DISABILITIES") In a nutshell, this law seeks to allow those with disabilities (or those perceived to be disabled) who can work, with or without reasonable accommodation, to still be able to work and to do so without facing discrimination.
Covered employers (those with more than a certain # of employees) are required to make "reasonable" accommodations for those defined as "disabled" under the law. In order to be make a disability discrimination in employment case, where the charge is that the employer has failed to make reasonable accommodations (and there are many more grounds for disability discrimination but this is the most common ground), a person has to be disabled, meaning, the person suffers a major impairment with one or more major life functions (such as eating, breathing, walking, etc.) but can work with "reasonable accommodations". The two main issues that arise in these cases are: "Is the accommodation "reasonable"?" and "Is this person "disabled" according to this law?"
WHERE TO GO IF YOU FEEL YOU HAVE BEEN DISCRIMINATED AGAINST
Speaking with an attorney promptly is recommended. Statute of Limitations are very short and there are usually a number of steps that HAVE to be taken pre-suit (conditions precedent is the legal term).
Disability lawsuits under the ADA are handled in Federal Court. The nearest federal court is in Central Islip and the other in downtown Brooklyn.
The other federal courthouse in the same district (Eastern District of NY) is located in downtown Brooklyn.
NY State also has an anti-discrimination statute, called "The New York Human Rights Law," which covers discrimination against the disabled (as well as other forms of discrimination), and cases brought under the NY HRL are generally handled in NY state court unless, for instance, they are piggybacked onto a federal ADA case (known as "pendent jurisdiction"), the parties have "diversity" (different states), etc.
There is also a New York City Human Rights Law http://www.nyc.gov/html/cchr/html/ch1.html#7
Many attorneys for big corporations choose to get the case into Federal court ("removed") because the failure rate for victims is about 93%, it moves faster than state court and shills for big corporations can more quickly dispose of the case and any publicity, a common tactic by big corporations such as Verizon. They also know it costs victims a lot more to hire an attorney. For instance, although the United States uses the "American System" where, in most cases, parties pay their own legal fees, the winning party under the ADA may be entitled to attorney's fees. However, most ADA cases must be done on a fee-basis with the victim having to pay those fees up-front, something most people cannot remotely afford.
*** WARNING: STRICT TIME LIMITATIONS APPLY. A consultation with an attorney ASAP is strongly recommended*** Those who feel they have been discriminated against may choose to handle the case themselves (called "pro se") by filing in state or federal court and/or by choosing to have a state or federal agency handle it. Filing can stop the clock if today is Day 89 or something and an Amended Complaint is allowed but again, time limits apply. However, this can be a tough thing to handle without an attorney and a good attorney often can recover and net far more for the client and more than cover legal fees. First of all, discrimination cases can be tricky, and often, the defendant is well-armed with much deeper pockets than the plaintiff and attorneys who do these cases regularly. Secondly,there are strict time rules as well as other rules that must be adhered to, depending on a number of variables, such as a requirement that you exhaust certain remedies (for example, filing with the EEOC first, perhaps having to file first with other parties (such as through one's union or human resources department), then at the EEOC, 90 days on some things, 180 days on another, etc.) Thirdly, winning a suit is not the end; besides appeals, the winning plaintiff needs to collect damages awarded, and an attorney knows how to freeze assets and such. There is no point winning $1 million against a small business that protects itself by going belly-up; the attorney would know who to sue to avoid weasling out, freeze assets, etc.
A more user-friendly option is to file a TIMELY complaint with the NY State Division of Human Rights ("NYSDHR") under the NY Human Rights Law or with the federal Equal Employment Opportunity Commission ("EEOC"). The case is then cross-filed with the other agency. While these two options are available to parties without an attorney and simpler than filing in court, and the EEOC even includes free mediation, there are many limitations on recovery. Moreover, these agencies are overworked, especially now, in this economy, where many people lost their jobs and file claims of discrimination (remember, the EEOC and NYSDHR handle other cases of discrimination, not just disability discrimination). Thus, the process can be slow and fewer cases as a percentage end up with the agency going after the employer for damages, and the damages pursued (and awarded) are usually far lower than those pursued by attorneys in court. If the decision by the agency is not what the disabled person is looking for, there are options to appeal the decision, but these must be done in a timely fashion.
The term "reasonable" is key here. What may be "reasonable" for one business may not be "reasonable" for another, and pose an "undue hardship." [42 U.S.C. § 12111 (9) and (10)]
"Reasonable" accommodation depends on a number of factors, including the size of the business, hours of operation, financial status and more. For example, a company such as Verizon (one of the biggest corporations in the U.S. and one of the biggest in the world, with enormous profits) is guilty of disability discrimination when it fails to provide an ergonomically correct chair, provide alternative work hours in a department open 24/7, etc. On the other hand, a smallish CPA firm with just over the minimum # of employees to be covered under the ADA will be subject to different definitions of "reasonable"-perhaps an ergonomic chair is "reasonable" but not too much of an alternate shift, let's say, maybe coming in at 10 instead of 9, but not a noon to eight work schedule.
This is another point of contention especially in a disability discrimination in employment case-is the person a "covered individual"? A covered individual in this context is different than other disability-related contexts (for instance, when applying for Social Security Disability benefits). Under the ADA, the term “disability” means, with respect to an individual— (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. [42 U.S.C. § 12102 (2)]
So, in order to be covered in this type of case (employer fails to make reasonable accommodations), you need to have a physical or mental impairment that substantially limits a major life activity. However, you also need to be a "qualified individual" [42 U.S.C. § 12111 (8)] meaning that you are able to perform the essential functions of the job you hold or want with (or without) reasonable accommodations. While "working" is a major life function, a circuitous reasoning comes into play if that is the sole "major life function" the case is based on, and can make the case tougher to win for the plaintiff (the "suer").
RELEVANT STATUTORY SCHEMES AND LEGAL SYSTEMS AFFECTING INDIVIDUALS WITH DISABILITIES (DISABILITY LAWS AND HEALTH INSURANCE LAWS)
-The ADA and the Rehabilitation Act of 1973 (“Rehab Act”) protect individuals who have a mental or physical impairment that substantially limits one or more of such an individual’s major life activities from discrimination based on disability. 42 U.S.C. § 12112 (a); 42 U.S.C. § 12102 (1) and (2); 29 U.S.C. § 794 et seq. Similarly, the New York Human Rights Law ("NY HRL") prohibits such discriminatory practices. New York Executive Law Article 15; New York Executive Law § 292 (21).
-Under the ADA (Title I) and the Rehab Act, a “qualified individual” means an individual who, with or without reasonable accommodations, can perform the essential functions of the job that the individual holds. 42 U.S.C. § 12111 (8); 29 U.S.C. § 794 (d).
-The ADA (specifically, Title I) prohibits entities covered by the statute from discriminating against a qualified individual on the basis of disability with regard to conditions and privileges of employment, including, but not limited to, hours of employment. 42 U.S.C. § 12112 (a).
-The ADA also proscribes the entity from utilizing “standards, criteria, or methods of administration of others who are subject to common administrative control”. 42 U.S.C. § 12112 (b)
-Under the ADA and the Rehab Act, discrimination includes, among other things, failing to make reasonable accommodations for the known mental or physical impairment of an employee who is otherwise qualified for the employment position that such individual holds unless the accommodation poses an undue hardship on the operation of the entity covered under the statute. 42 U.S.C. § 12112 (b) (5) (A); 29 U.S.C. § 794 (d).
-Under the ADA, it is unlawful for a covered entity to participate in contractual or other arrangements that have the effect of subjecting the covered entity’s employee with a disability to discrimination. This includes labor organizations, and organizations such as a disability insurance carrier, their employees, and/or paid subcontractors providing fringe benefits to employees of the covered entity. 29 C.F.R.§ 1630.6
-Under the ADA, 42 USC § 12112 (b), the Rehab Act, and the NY HRL, an “employer” is defined as an entity that controls access to employment opportunities.
- Under the NY HRL, it is an unlawful discriminatory practice for an employer to discriminate against an individual on the basis of a disability in compensation or in terms, conditions, or privileges of employment. New York Executive Law § 296 (1) (a).
-Under the NY HRL, it is an unlawful discriminatory practice for a labor organization to discriminate on the basis of disability against any of its members. New York Executive Law § 296 (1) (c).
- Under the NY HRL, it is an unlawful discriminatory practice for an employer or labor organization to discriminate against any person because the person has opposed any practices forbidden under this law and/or filed a complaint under this law. New York Executive Law § 296 (1) (e).
-Under the NY HRL, “discriminatory practice” includes a refusal to “make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford accommodations of employment to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such”…accommodations. New York Executive Law § 296 (2) (c) (i) (emphasis added).
-Under the NY HRL and the ADA, “discriminatory practice” includes a refusal to take such steps as necessary so that the person with a disability is not excluded because of lack of an auxiliary aid. New York Executive Law § 296 (2) (a), New York Executive Law § 296 (2) (c) (ii), the ADA, 42 U.S.C. §§ 12103 (1) (c) and (d), and 42 U.S.C.§ 12112 et. seq.
-Under the NY HRL, the ADA, and the Rehab Act, the burden is on the employer to show that an accommodation is not “readily achievable”, which is defined as easily accomplishable and able to be carried out without much difficulty, expense or undue hardship. In determining whether an action is “readily achievable”, there are several factors to be considered, including, inter alia, the size of the organization, the nature and cost of the action, and the number of people employed at the facility. New York Executive Law §§ 296 (2) (d) (i) (A) and (B), The ADA, 42 U.S.C.§ 12112 (b) (5), 42 U.S.C.§§ 12111 (9) and (10), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et. seq
-Title VII of the Civil Rights Act of 1964 explicitly authorizes discrimination claims in which an improper consideration was a motivating factor, among other permissible factors, for adverse employment decisions. 42 U.S.C. § 2000e-2 (m)
-Employers who violate FMLA § 2601 et seq. are liable to the employee for damages. 29 U.S.C. § 2617 (a)
-An employer may not discriminate or retaliate against an employee for taking FMLA leave nor may it retaliate against an employee opposing any practice made lawful by the statute. 29 U.S.C. § 2615 (a) . In particular, an employer is prohibited from using the taking of FMLA leave as a negative factor in employment actions. 42 U.S.C. § 2000e-2(m), and 29 C.F.R. § 825.220 (c).-An employer may not discriminate or retaliate against an employee for taking FMLA leave nor may it retaliate against an employee opposing any practice made lawful by the statute. 29 U.S.C. § 2615 (a) . In particular, an employer is prohibited from using the taking of FMLA leave as a negative factor in employment actions. 42 U.S.C. § 2000e-2(m), and 29 C.F.R. § 825.220 (c).
SOME KEY NEW YORK STATE HEALTH INSURANCE LAWS THAT OFTEN AFFECT INDIVIDUALS WITH DISABILITIES
-Under NY ISC, there is an implied covenant of good faith and fair dealing for all insurers in dealing with its beneficiaries and a prohibition against discrimination. New York State Insurance Law Article 26
-Under NYS ISC, unfair and deceptive acts are prohibited. New York State Insurance Law § 2403
-Under NYS ISC, no insurer doing business in New York State shall engage in unfair claim(s) settlement practices. NYS ISC § 2601, NYS ISC § 2403
-Under NYS ISC, any of the following acts by an insurer, if committed without just cause and performed with such frequency as to indicate a general business practice, shall constitute unfair claim settlement practices: (1) knowingly misrepresenting to claimants pertinent facts or policy provisions relating to certain coverage(s) at issue; (2) failing to acknowledge, with reasonable promptness, pertinent communications as to claims arising under its policies; and/or (3) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under its policies; and/or (4) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims submitted in which liability has become reasonably clear and (5) compelling policyholders to institute suits to recover amountsdue under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them. New York State Insurance Law § 2601 et. seq.
-Under NYS ISC, if it is found, after notice and an opportunity to be heard, that an insurer has violated the provisions of NYS ISC § 2601 et. seq., each instance of noncompliance may be treated as a separate violation of this section for purposes of ordering a monetary penalty pursuant to NYS ISC § 109. A violation of this section shall not be a misdemeanor. New York State Insurance Law § 2601 (6) (c); and New York State Insurance Law § 109 et. seq.
-Under NYS ISC, every violation of any provision of NYS ISC § 109 shall, unless the same constitutes a felony, be a misdemeanor. Every penalty imposed by NYS ISC § 109 shall be in addition to any penalty or forfeiture otherwise provided by law. NY State Insurance Law §§ 109 (a), (b), and (c)
Revised rules for Titles II and III of the ADA:
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