Disability & Employment Law in New York State - Cornell University

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other regards. For instance, Colorado, Hawaii and Michigan differ from both the ADAand New York State, in that there is no minimum number of employees an employermust have, in order to be covered. 174 In addition, the range of liable parties is extendedin some states. Whereas it has been difficult under the ADA to hold individuals otherthan the employer entity accountable, meaning that managers and supervisors areusually not personally liable, some states – notably New Jersey, Tennessee, andPennsylvania – apply liability to individual employees who aid or facilitate violations ofthe respective state statutes. 175New York City is unusual in its placement of the burden of proof of whether anemployee is qualified on the employer. However, some state statutes have beeninterpreted to make the burden of proof for plaintiffs comparatively lighter than it isunder the ADA or the NYSHRL. Massachusetts, for instance, eases the burden forplaintiffs of demonstrating that an adverse employment action was motivated bydisability discrimination. 176 Under the Massachusetts state statute, it is adequate toprove that disability discrimination was simply a factor, rather than a primarymotivator. 177In addition to state statutory models, some useful bases for comparison exist ininternational law, and other national models. The United Nations Convention on theRights of Persons with Disabilities, for instance, emphasizes that “disability is anevolving concept and that disability results from the interaction between persons withattitudinal and environmental barriers that hinder their full and effective participation insociety on an equal basis with others.” 178 This conception avoids an emphasis onmeasuring the severity or substantive impact of an impairment, and focuses instead onthe social consequences of discriminatory treatment – as critical to legal recognition ofdisability. The Australian Disability Discrimination Act of 1992 also provides a veryexpansive definition of disability, including components comparable to all those coveredcategories within the ADA, but without a severity requirement, and with additionalprotection for anyone who may acquire a disability in future, whether based on geneticpredisposition, or any other reason. 179VI Recommendations for Upholding Human Rights and Increasing Employmentof People with Disabilities in New York StateWhile the state of New York has a number of laws and policies intended to eliminateemployment discrimination against, and increase employment of, people withdisabilities, coordinated efforts to address gaps in the existing resources and to reformproblem areas remain a pressing concern and opportunity for action.174 See Jeffrey A. Van Detta & Charles M. Rice, The Mice That Roar: How State Disability DiscriminationLaws Have Become a Force to be Reckoned With, 25:3 Employment Relations Today 109 (2007).175 Id.176 See Dichner v. Liberty Travel, 141 F.3d 24 (1st Cir. 1998).177 Id.178United Nations, Convention on the Rights of Persons with Disabilities, Preamble (e),http://www.un.org/disabilities/convention/conventionfull.shtml.179Disability Discrimination Act of 1992, § 4 (Austl.),http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/s4.html.To learn more go to http://www.nymakesworkpay.org25
Disability & Employment Law in New York State:Analysis and RecommendationsImprove Government Enforcement: To improve enforcement of the Human RightsLaw through the Division of Human Rights, funding and resources provided to theDivision need to be increased. Timely investigation and resolution of complaints servesboth the employer and employee communities, by ensuring evidence and memoriesregarding the allegations are still available. In order to better achieve deadlines andgoals provided for in the Human Rights Law (such as bringing the current median of 244days for investigation down to the statutory guideline of 180 days). Division investigativestaffing should be increased overall. Further, auditing and empirical study is needed toevaluate the effectiveness of the Division in handling disability complaints. Carefultracking and publication of data is needed regarding the Division’s dismissal rate, aswell as its outcomes and relief. Evaluation should include comparative data fordisability, race, and gender discrimination claims. The State Assembly is currentlyconsidering legislation which would amend the NYSHRL and establish plans to increasetimeliness of complaint processing, identify requisite staffing to achieve that goal, andprovide for a grievance process if complaints are not handled appropriately, and areview process in cases where probable cause is not found. 180 If passed, this legislationcould actualize several of these recommendations, provided implementation isthorough, and includes a clear commitment to adhere to statutory maximum timing forinvestigation and resolution of complaints.In addition, because disability discrimination cases often involve theories and conceptsof discrimination that differ from traditional race and gender discrimination claims, moreintensive, specialized training on disability for all involved staff should be providedregularly. In order to ensure consistency of approach to disability enforcement andpolicy, the Division should consider creation of a unit specifically focused on disabilitydiscrimination or hiring an expert in disability rights law to consult and guide disabilitycases handled by generalists. The Division should have a strong mandate to engage inpro-active enforcement, and to initiate impact litigation, directed towards both privateand state employers. The Division should also be encouraged to pursue significantmonetary remedies, as well as fines, for disability-based discrimination, in order todiscourage employers from discriminating, to encourage individuals with disabilities topursue claims when they encounter discrimination, and to emphasize the state’scommitment to preventing disability discrimination.The low employment numbers for people with disabilities indicates significantdiscrimination occurs at the application and hiring stage. Yet, because applicants withdisabilities are not given a reason for non-selection, discrimination at the hiring stage isvery difficult to identify and prove. The most effective approach to prove, and toprospectively discourage, such discrimination is through matched-pair testing programs,such as those used in the fair housing context. The Division should implement amatched-pair testing program as modeled by the New York City Commission, with theaddition of a disability-specific matched pair testing program.Facilitate Private Enforcement: There are currently proposals in the New York StateLegislature which, if adopted, would allow for the awarding of attorney’s fees and expert180 Bill No. 5293, New York State Assembly, Feb. 11, 2009.26
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