‘Constructive Denial’ of Reasonable Accommodations and Disability Discrimination Lawsuits in New York

When you discover you have a disability that qualifies under the law, your employer is required to make a good-faith effort to provide a reasonable accommodation for that disability. Sometimes, an employer may ultimately provide you with accommodation, but only after months of delay and attempts at avoiding accommodating you. In those sorts of scenarios, the employer’s intransigence (even when followed by an ultimate approval) may amount to a refusal to accommodate, and, with representation from a knowledgeable New York disability discrimination lawyer, you may be able to take that proof, and build a successful Americans With Disabilities Act case.

As an example of this kind of circumstance, there’s the disability discrimination case of R.B., a lawyer in his 50s working in the legal department of a healthcare insurance company headquartered upstate.

In 2018, doctors diagnosed him with “pulmonary and cardiac sarcoidosis.” He underwent surgery to install a pacemaker but that was not enough. In August 2019, doctors placed him on a powerful immunosuppressive drug that required half-day absences from work to administer. According to R.B., both the Deputy General Counsel and the General Counsel began making comments around this time about how the company’s legal department “would benefit from hiring younger attorneys.”

A year later — in August 2020 — the employer fired R.B. The employer told the attorney that it had eliminated his senior counsel position as part of a “functional reorganization.” Allegedly, that “functional reorganization” eliminated exactly one job — R.B.’s — and the employer replaced him with a younger, less-qualified lawyer.

The attorney pursued his case on two separate bases — disability discrimination in violation of the ADA and age discrimination in violation of the Age Discrimination in Employment Act. The employer asked the court to dismiss both those claims and, on both claims, the employer failed.

This ruling in favor of the employee contains several very useful pieces of information. One, with regard to disability discrimination claims, the court reinforced the idea that, when a case is at the motion-to-dismiss or defense-motion-for-summary-judgment phase, a court should construe the boundaries of what is or is not a qualifying disability under ADA “broadly” in order to create “expansive coverage.”

In R.B.’s circumstance, he had a medical condition that allegedly “limits his ability to breathe and engage in physical activity without breaks” and that forced him to “avoid sitting for long periods of time.” That, according to the court, was enough.

In terms of the employer’s failure to accommodate, it argued that it granted all of the lawyer’s requests for time off to undergo immunosuppressive drug treatment.

The employer’s argument didn’t tell the whole story, though. Yes, the employer ultimately did grant all of R.B.’s leave requests. However, before that, the employer allegedly denied the leave requests and only reversed course after an “independent third-party overturned” the initial denial. Additionally, the approval did not happen until six months after the attorney’s initial request. During those six months, the lawyer did not have access to approved leave for his drug infusion appointments.

The court rejected the employer’s argument because, regardless of the eventual approval, the initial denial potentially represented a failure to accommodate and the six-month delay in approval represented a potential “constructive denial” of the requested disability accommodation.

Comparison of Evidence and the ‘Inference of Discrimination’ in an ADEA Claim

Regarding the attorney’s age discrimination claim, age comparison evidence was the key to his success. In your age discrimination case under the ADEA, you need proof that your advanced age was what motivated your employer to take adverse action against you. You can create this “inference of discrimination” in multiple ways. You can offer possible evidence that your employer made “remarks… which reflect a discriminatory animus” or you can provide proof that the employer treated similarly situated younger coworkers more favorably… or both.

R.B. had evidence of those discriminatory remarks, but they occurred too far in the past for him to use them. Nevertheless, he succeeded. R.B.’s evidence included proof that he was the oldest senior counsel at the company and that he was the only senior counsel whose position the employer eliminated in the company’s “functional reorganization.” No younger senior counsels were fired in the reorganization and the employer replaced R.B. with a younger attorney, according to his complaint. That was enough inference-of-discrimination proof to defeat the employer’s motion to dismiss.

There can be many avenues to success in a federal disability discrimination case, including proof of an actual denial of an accommodation or, alternately, proof of a constructive denial. Whatever sort of denial you suffered, you need an experienced advocate on your side. The knowledgeable New York disability discrimination attorneys at Phillips & Associates are here to be that sort of advocate and provide our clients with diligent and determined representation inside and outside court. To find out more, contact us online or at (866) 229-9441 to set up a free and confidential consultation today.

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