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Disability & Discrimination in the Workplace: What You Need to Know

Posted by Jamison Mark on Mar 9, 2021 1:54:00 PM


Many employers have invested significant time and effort to help workers with disabilities succeed in the workplace. For some workers, the increased prioritization of remote work options has dramatically improved their work environment; for others, telecommuting has created additional burdens. As the landscape of the modern workplace shifts, new issues arise around disability discrimination in the workplace.


What Are the Laws Against Disability Discrimination in the Workplace?

The federal Americans With Disabilities Act (ADA) and the New Jersey Law Against Discrimination (NJLAD) protect employees from many kinds of discrimination in the workplace, including discrimination based on an actual or perceived disability. It is illegal for an employer to take any discriminatory action against any current or potential employee on the basis of that employee’s disability. This means that an employer may not consider an individual’s disability status in making decisions about their hiring, firing, compensation, terms and conditions of employment, retirement, benefits, promotion, layoff, scheduling, or other work-related issues. If an employee voluntarily ends their employment because of a disability, it does not disqualify them from receiving New Jersey unemployment benefits.


What Is a “Disability”?

A disabled individual, as defined by the ADA, is one who has “a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or [is] regarded as having such an impairment.”[1] A disability may be a permanent or temporary condition.

Some mental impairments may qualify as disabilities, including “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”[2] Psychological conditions like stress and depression may also qualify if they result from a “documented physiological or mental disorder.”[3]

Disorders resulting from the use of legal drugs (such as alcohol or prescription drugs) may also result in physical or mental conditions protected under the ADA or the NJLAD. Additionally, many conditions related to or caused by pregnancy (for example, gestational diabetes and complications related to childbirth) may be temporary disabilities protected under the ADA.


Does an Employer Have to Accommodate a Disability?

If an employee is able to perform the essential functions of their job with or without accommodation, the law requires an employer to provide them with reasonable accommodations. Although this requirement seems simple, it is often difficult to determine whether an employer is meeting its obligations.

The “essential functions” of a job are the fundamental duties of that job, regardless of how much of an employee’s time they constitute. An astronaut, for example, spends a relatively small percentage of their time in space, but it is obviously an essential function of the job. If an employee cannot perform the essential job functions, even with a reasonable accommodation, the law does not protect their employment.

However, many employees with temporary or permanent disabilities would be able to perform the essential functions of their jobs with some accommodation. Whether it is reasonable for an employer to allow that accommodation depends on the unique circumstances of each case. For example, it may be very easy for an employer with dozens of similarly situated workers to accommodate a requested change in schedule, while the same request may be a significant burden to a company with only a few workers.

The law does not require that an employer give a disabled employee the accommodation of their choice. However, once an employee provides notice of a requested accommodation, the employer and employee must engage in an “interactive process.” This requires them to discuss what aspects of the job are problematic and what possible accommodations may be available or acceptable. Potential accommodations may include light-duty work options, alternative assignments, time off, additional breaks, physical aids in the workplace, alternate work locations, remote work options, and many more.

An employer must, in good faith, offer an accommodation that would fulfill the worker’s stated needs. However, it may not always be possible to accommodate an employee’s disability without creating an unreasonable hardship for the employer or the other employees. If this is the case, an employer may not be required by law to accommodate a worker.  


How Do I Prove Disability Discrimination in the Workplace?

While some forms of discrimination are blatant or overt, discrimination against individuals with disabilities commonly occurs in more subtle forms. These can include being passed over for promotions, being paid less than non-disabled individuals, being held to different standards for achievement, attendance, or performance, being assigned to less desirable or lucrative schedules or locations, being targeted for layoffs, and more.

An employer may not penalize an employee for reporting harassment or requesting or using an accommodation. If an employee requests an accommodation, the law requires that an employer must engage in good faith in the interactive process to attempt to find an accommodation that works for everyone. If you’ve been discriminated against or your employer has refused to accommodate you, you may be able to pursue a claim for disability discrimination.


Remote Work Can Present Additional Challenges.

Remote work and the increase in mandatory online communication can lead to other discrimination issues. Workers who have visual or auditory impairments, for example, may find it difficult to participate in teleconferences or livestream meetings. For some workers whose job duties have shifted significantly, with greater emphasis on telecommunication and typing, disabilities such as dyslexia may have an increased impact on their work performance.

Further, with more of the workforce working remotely, management may be less able to identify and prevent discriminatory online behavior or communications like jokes, memes, or comments against employees with disabilities. Workplace programs designed to prevent or respond to these issues may have been postponed, eliminated, or changed in ways that are unclear to employees. Without in-person workplace communication, workers may be more hesitant to report inappropriate or discriminatory behavior by supervisors, colleagues, or clients.


What Are My Options if I Believe I Have Experienced Disability Discrimination?

Employees who experience disability discrimination in New Jersey workplaces may file claims with two primary agencies. The Equal Employment Opportunity Commission (EEOC) handles federal discrimination claims, while the New Jersey Division of Civil Rights (DCR) typically handles discrimination claims alleging violations of state laws. You may be able to pursue a lawsuit to recover damages, including compensation for lost income or employment opportunities.

If you believe you’ve been the victim of disability discrimination, you should talk to a disability discrimination lawyer experienced with federal and New Jersey anti-discrimination laws. An experienced attorney can help you determine whether you may have a claim, and if so, help you decide the best way for you to pursue an action.


Have You Been a Victim of Discrimination in the Workplace?

If you are struggling with policies or issues in your workplace that you believe may be discriminatory or illegal, or if you have experienced discriminatory treatment, an experienced attorney can help. A lawyer can work with you to negotiate an acceptable accommodation, report your complaints internally or to the Equal Employment Opportunity Commission, or file a lawsuit to recover damages. You may be able to recover the compensation you deserve.


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[1] 42 U.S.C.A. § 12102(2); 29 CFR § 1630.2(h)(2).


[3]Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans With Disabilities Act.

Topics: Employment Law, Discrimination & Harassment

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