Articles Posted in Disability Discrimination

In the last few months, multiple stories have emerged from New York City in which employees have asserted that they have been the victims of disability discrimination based upon their condition of sleep apnea. These cases are a reminder that disabilities can come in a wide range of varieties. Just because your disability does not involve a wheelchair or some other visible sign of limitation does not mean that it is not enough to trigger the protection of anti-discrimination laws. For advice and advocacy regarding your disability and workplace discrimination, contact a skilled New Jersey discrimination attorney to represent you.

While recent news articles from the New York Post and New York Daily News have focused on New York employees, New Jersey authorities have also faced this issue. Sometimes, the form of discrimination that an employer commits is the failure of the employer to provide the affected employee with a reasonable accommodation. For example, the employee in the Daily News article, a security guard with sleep apnea, sued after his employer allegedly fired him for sleeping during his meal breaks.

Last year, the New Jersey Attorney General’s Office issued a ruling in which it found the existence of probable cause for a hearing on alleged disability discrimination. That case involved the employer’s refusal to let the worker return to the job, as opposed to providing some accommodation like nap breaks. R.B. was diagnosed with sleep apnea and placed on leave from his job as a yard switcher for a trucking company in Port Newark.

As a worker, there may be various circumstances under which you might need to take an extended leave of absence. These disabling conditions could range from physical issues (like a high-risk pregnancy, major surgery, or cancer treatment) to psychological ones (like inpatient treatment for bipolar disorder or OCD). When these things happen, your condition might dictate that you need several months away from work. Sometimes, though, an employer might seek to deny a worker any leave beyond the minimum that the laws (the federal Family and Medical Leave Act and the New Jersey Family Leave Act) require. When your employer does that, do you have any recourse through the legal system? The answer is that you might. Be sure to reach out to a knowledgeable New Jersey disability discrimination attorney without delay to learn more about your case.

Workers who experience conditions that render them temporarily but totally disabled are entitled to the same protections under the law as any other employees with disabilities. This means that these workers are entitled to receive accommodations for their disabilities as long as the requested accommodations are reasonable and will not place undue hardships on the workers’ employers.

All workers employed by employers of 50 people or more are entitled to 12 weeks of unpaid leave under the FMLA and the NJFLA. Taking leave that spans more than 12 weeks can potentially be trickier. If you and your doctor have concluded that you will need to be away from work for more than 12 weeks, it is important to provide notice and get that request for extended leave before your employer as soon as you have the written documentation from your doctor that you need to make the request.

If you have a disability, you obviously face certain unique challenges in your life. Being allowed a fair chance to do a job for which you are qualified should not be one of them. The law says that employers may not discriminate against workers with disabilities, and part of that requirement means the employer must, in most situations, provide an employee with the reasonable accommodations she needs in order to do her job, as long as those accommodations do not place an undue burden on the employer’s business (and most do not). If you’ve been harmed at work because your employer rejected the reasonable accommodation that you requested, you may have a case and may have a right to compensation for disability discrimination. Talk to an experienced New Jersey disability discrimination attorney to learn more about what your next steps should be.

Both federal law and the New Jersey Law Against Discrimination are very clear about certain things. One of these is that, if you have a disability, the employer is required to give you a reasonable accommodation of your disability, unless it can prove to a court that the accommodation is unduly burdensome. In other words, it is mandatory, and the employer generally cannot deny you an accommodation unless it meets the high hurdle of proving an undue burden. The employer is not obligated to give you exactly the accommodation that you sought; instead, your employer must engage in a good-faith “interactive process” to arrive at an appropriate accommodation. (If the employer fails to engage in the interactive process, or fails to do so in good faith, that in itself can be a basis for a disability discrimination case.)

Many accommodations sought by employers are genuinely modest and reasonable, and clearly fall short of constituting an undue burden on an employer. An employee with inflammatory bowel disease might ask her employer for an accommodation in the form of extra bathroom breaks or a work station close to the bathroom. An employee who requires the use of a wheelchair might ask for an adjusted desk in his work space to better reach the desktop. An employee with depression might need an extended period of leave to seek treatment.

The law in New Jersey gives people with disabilities certain rights and protections. One area in which these rights and protections apply is in the area of employment. As a New Jersey worker or candidate for employment, you have the right to be judged on your individual merits, rather than based upon your disabilities. If you believe that your employer (or potential employer) has taken an adverse employment action against you because of your disability, you may be entitled to sue and to receive compensation. Your skilled New Jersey disability discrimination attorney can advise you regarding the legal consequences of your employer’s actions and the options available to you.

One thing that is worth keeping in mind is that not all disability discrimination laws are created equal. The New Jersey Law Against Discrimination offers a very strong and wide-ranging protection for workers with disabilities, including defining “disability” considerably more broadly than the federal law does. In this state, a physical “disability, infirmity, malformation, or disfigurement” qualifies. So does a mental, psychological, or developmental issue if it prevents the “normal exercise of any bodily or mental function or…can be shown to exist though accepted clinical or laboratory tests.”

Furthermore, you do not even have to have a disability at all, even under the broad definition established by New Jersey law, to be entitled to pursue a case of disability discrimination in this state. New Jersey law prohibits employers from discriminating against employees or prospective workers if that discrimination happened because the employer mistakenly thought you were disabled (even if you weren’t). You can also bring a disability action if the discrimination was a result of a disability you had in the past, or might have in the future (or that the employer thinks you had in the past / might have in the future – even if that belief is wrong).

Most people have heard the term “bipolar disorder,” or perhaps the older descriptor “manic depression,” but they may not know exactly how common the disorder truly is. The National Institute of Mental Health’s website reports that bipolar disorder, which is defined as “a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out daily tasks,” affected nearly 3 percent of U.S. adults in the past year. Nearly 4.5 percent of U.S. adults will experience bipolar disorder at some point in their lifetimes. If you have suffered discrimination on the job due to your bipolar disorder or another medical condition, you should reach out to a New Jersey disability discrimination attorney about your situation.

What protection does the law provide to people with bipolar disorder when it comes to workplace discrimination? The New Jersey Law Against Discrimination says that a “disability” under the law can be either a physical disability or a “mental, psychological or developmental disability that results from conditions that prevent the normal exercise of any bodily or mental function.” This type of disability includes conditions like depression, anxiety disorders, attention-deficit disorder, and bipolar disorder (among others).

As people with bipolar disorder know, there are two very distinct sets of challenges they face that can affect their work. One set is the symptoms of the disorder itself, when their bipolar disorder is either untreated or not yet under control. The other is the side effects of the drugs that are often needed by many people to bring their bipolar disorder under control. Some people with bipolar disorder may need powerful medications that can have many side effects. These can include drowsiness or trouble waking in the morning, increased need to urinate, or nausea, vomiting, and diarrhea.

A few weeks ago, this blog covered the story of an NFL linebacker who filed a lawsuit in New Jersey against his former team, the New York Jets, accusing the organization of engaging in disability discrimination in violation of the New Jersey Law Against Discrimination (LAD). While some observers have theorized that the linebacker’s lawsuit “could wind up testing the way the NFL treats players with mental health problems,” the lawsuit clearly serves as a reminder of the protections provided to New Jersey workers by the LAD. Anyone who has been subjected to discrimination based upon bipolar disorder or another major psychological condition should consult a New Jersey disability discrimination attorney right away.

As a preliminary matter, it is important to note that there is more than one type of bipolar disorder. There is both “bipolar I” and “bipolar II.” The popular website webmd.com distinguishes between the types by explaining that bipolar II “is similar to bipolar I disorder, with moods cycling between high and low over time. However, in bipolar II disorder, the “up” moods never reach full-blown mania.” (Full-blown mania may involve things like auditory hallucinations and delusions of grandeur.) Both types of bipolar disorder qualify as disabilities under New Jersey law.

The law requires your employer to reasonably accommodate your disability. Sometimes, the reasonable accommodations the law says that your employer must make may relate to the symptoms of your bipolar disorder. In other circumstances, the reasonable accommodation you may require may relate to the medical regimen used to treat your bipolar disorder. For several drugs, including antidepressants like Zoloft or antipsychotic drugs like Seroquel, one of the common major side effects is pronounced drowsiness. Certainly, being very sleepy may affect your performance on the job, meaning that you may need to interact with your employer regarding your drug treatment regimen and a reasonable accommodation.

While many people may associate the phrase “hostile work environment” with sexual harassment cases, that phrase has a broader meaning in New Jersey. In New Jersey, you can be entitled to a judgment and damages based upon a hostile work environment created for many reasons, including a hostile work environment created due to a disability. In order to succeed in such an action, there are several things you, as an aggrieved employee, must show to the court. An experienced New Jersey disability discrimination attorney can help in this and other employment law concerns.

An example of this type of case was a recent federal court action that involved Francis, a “Manager of Strategic Global Accounts.” The manager’s job involved selling commercial office furniture and servicing the accounts of several large multinational companies. The job routinely called for him to travel to customers’ places of business because the employer expected its account managers to “get out into the marketplace and make face-to-face sales calls.”

Francis had experienced back problems for years, and, in the summer of 2012, he underwent spinal fusion surgery. This caused him to take a medical leave of absence from work and go on short-term disability. After four and one-half months, even though Francis wore a back brace, he was without restrictions at work.

There are many different ways in which an employer can engage in impermissible discrimination in New Jersey. These can include acts of discrimination based upon your gender, race, age, sexual orientation, gender identity, military service, or genetic information, among others. Another illegal basis is a disability or perceived disability. The law requires you to demonstrate to the court several things in order to have a successful disability discrimination case. A knowledgeable New Jersey disability discrimination attorney can help you if you think you’ve suffered from disability discrimination.

Recently, a South Jersey worker faced such a scenario. The employee in the case, Jeffrey, was a lot attendant at a Mitsubishi dealership in Cherry Hill. His job entailed cleaning up the lot and “general customer service tasks.” In October 2014, the attendant took FMLA leave due to a shoulder injury. In late December, the employee presented his employer with a note from his doctor detailing his work restrictions once he restarted work on Jan. 5, 2015. The attendant’s restrictions included not lifting more than five pounds, performing no overhead activities, and using his right upper extremities and hand only on a limited basis. None of these restrictions would have prevented Jeffrey from doing his job.

However, on Jan. 5, instead of Jeffrey returning to work, the employer laid him off. The employer alleged that, while Jeffrey was out, another employee had managed to complete both his duties and Jeffrey’s duties, so the employer decided to consolidate the two jobs and retain the other man to fill the position.

Disability discrimination can take place in almost any employment setting. Both federal and New Jersey laws require an employer to accommodate, within reason, an employee with a disability unless providing that reasonable accommodation would create an undue hardship for the employer. Regardless of the nature of your work, if you believe you’ve suffered from disability discrimination, you need an experienced New Jersey disability discrimination attorney. Disability discrimination can occur in an office, in construction work, or even in professional sports. One alleged instance of the last category involves a federal lawsuit filed against one of this area’s pro sports teams, according to NBC Sports.

The plaintiff was a relatively successful linebacker for the New York Jets in 2015. Pro Football Focus graded him as the 14th-best inside linebacker. Analysts projected him as a starter for the Jets’ team in 2016. Then, in late October 2016, the Jets surprisingly put him on the “Non-Football Injury” (NFI) list, which meant that he could not play for at least the next eight games (which equals half an entire year), even though his team said that he was not injured at all. The team declined to renew the linebacker’s contract in the offseason.

That move by the team has now landed the two sides in court here in New Jersey. The player alleges that he has bipolar disorder and that the team’s manner of handling his condition, including putting him on the NFI list, constituted disability discrimination in violation of New Jersey and federal laws. He asserted in his lawsuit that his damages included the remainder of his 2016 salary, all of the salary he would have earned in 2017, and a roster bonus payment, totaling $3.3 million, according to the New York Daily News.

In general, the law opposes employers discriminating against employees based upon a disability or a perceived disability. This isn’t true, though, when an employee’s disability could translate to a risk to herself, her co-workers, or the employer’s customers or clients. The key then, for any employee pursuing a New Jersey disability discrimination case, is to show that such a risk doesn’t exist. For one North Jersey nurse, the fact that there was no proof that she was a “materially enhanced risk of serious harm” to herself, her patients, or her co-workers meant that she was allowed to go forward with her disability discrimination case, according to the New Jersey Supreme Court.

The plaintiff was an experienced registered nurse who had begun, in 2000, working in a hospital unit where roughly 50% of the patients were stroke victims. These patients needed considerable assistance with regular daily activities. Starting in 2007, the nurse had several work-related accidents. First, she injured her left shoulder moving a patient. That injury required surgery. Then she injured her right shoulder a year later. That injury required no medical action. Then she re-injured her left shoulder, requiring another surgery. Finally, she injured her cervical spine, which required back surgery.

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