G. Discrimination on the Basis of Disability

• Jurisdiction: New York

G. Discrimination on the Basis of Disability

The general practitioner is well advised to become familiar with the Americans with Disabilities Act of 1990 (ADA) and its amendments¹⁴⁵ Similarly, knowledge of the broader protections, contained in the New York State and N.Y.C. Human Rights Law, is important.¹⁴⁶

The ADA was intended to protect the rights of individuals with disabilities and to ensure that they have access to jobs, public accommodation, public transportation, government services and telecommunications. The ADA has very specific limitations on pre-hiring inquiries and other aspects of the hiring process. The general practitioner is advised to check the regulations promulgated by the EEOC in this area, for some of the requirements are quite precise and sometimes surprising. The ADA requirements for nondiscrimination in employment apply to employers with 15 or more employees. The ADA's application during the present COVID-19 pandemic is addressed in Section XV, infra.

The Supreme Court has held that an individual who is HIV-positive is disabled within the meaning of the ADA.¹⁴⁷ Subsequent Supreme Court decisions narrowly interpreting the definition of disability under the ADA were overturned by the ADA Amendments Act of 2008.¹⁴⁸ The purpose of the amendments was to specifically reject various Supreme Court decisions which had strictly construed various significant terms utilized by Congress in drafting the ADA. The amendments retain the ADA's basic definition of "disability" but change the manner that the statutory terms are to be interpreted. Therefore, in determining the scope of protections under the ADA, the general practitioner is encouraged to examine the amendments and related regulations by the United States Equal Employment Opportunity Commission, rather than rely on earlier Supreme Court decisions.

The ADA, as amended, defines a disability as (1) a physical or mental impairment which substantially limits one or more major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.¹⁴⁹ This definition of disability is to be construed in favor of broad coverage.¹⁵⁰ Under the ADA, "major life activities" include, but are not limited to, performing manual tasks, walking, standing, lifting, bending, concentrating, communicating, and working, and also include the operations of major bodily functions.¹⁵¹ Additionally, regulations have clarified that the term "substantially limits" is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA, and is not meant to be a demanding standard.¹⁵²

In order to be considered a disability under the ADA, an impairment that substantially limits one major life activity does not have to limit other major life activities.¹⁵³ An episodic impairment or one in remission constitutes a disability if it would substantially limit a major life activity when active.¹⁵⁴ An employer is not required to hire an employee if the employment would pose a direct threat to the health or safety of the individual or others in the workplace.¹⁵⁵

Under state law, a plaintiff may prevail merely by showing a disability (e.g., obesity), without a showing that a major life activity is impaired. In State Division of Human Rights v. Xerox Corp.,¹⁵⁶ the Court of Appeals applied the New York State Human Rights Law to protect an employee who was obese. While expressing doubt that her condition prevented her from performing her activities as a computer programmer, the Court ruled she could not be denied employment simply because her condition was detected before disabling symptoms began to affect her employment. This decision reflects the broader...