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What is Actual v. Perceived Discrimination?

The New York State and New York City anti-harassment laws protect actual protected classes and perceived protected classes. So, for example, if you go out on leave because of a disability and then you come back, but now all of a sudden you're given less hours or treated differently, it's not that you are disabled anymore but you're perceived as disabled. You're perceived as broken or less than you were before you needed time off or surgery, for example. And although you are now not disabled, you are perceived as disabled, and that is illegal as well. Actual disability discrimination is where you are actually being told that "we're not giving you this job because you need time off" or "we're reducing your hours because you need time off" or "I'm sorry. After your surgery we're eliminating your position." Those are examples of actual disability discrimination.

Employment Attorneys Helping New York City Workers

People who have or are perceived as having disabilities face particular challenges in the workplace. It may be harder to get hired and harder to get promoted, and often the disabled are first in line for termination if a company decides to downsize. Being perceived as disabled may result in an employee getting harassed and suffering emotional trauma in addition to economic harm. If you are wondering about actual versus perceived disability discrimination at your workplace, there is a chance that you may have a claim. The New York City disability discrimination lawyers at Phillips & Associates can evaluate the facts of your situation and represent you if appropriate. Read more below and watch the video on this page to understand the difference between these important concepts.

What is Actual Versus Perceived Disability Discrimination?

Federal, state, and local laws prohibit discrimination against qualified people with disabilities based on their disabilities with regard to any aspect of employment, including hiring, firing, promotions, and job training. Qualified people with disabilities are people who have a disability but who can perform essential aspects of the job that they hold or seek, with or without reasonable accommodations. Crucially, a plaintiff may prove that they are disabled by showing that they have a substantial impairment, have a history of that impairment, or are regarded as having that impairment.

The last of these three possibilities is a "perceived disability." Under the federal Americans with Disabilities Act, for example, courts will look not at how much you are actually impaired but at whether other people perceive you as disabled and the effect of their perception on their attitudes toward your ability to do your job. The perceived disability must not be considered both transitory and minor.

The purpose of the perceived disability language was to provide recourse to people who suffered from discrimination because of fears, myths, and stereotypes that are associated with various disabilities. In other words, if you are not in fact disabled, but you are still subject to discrimination because of your coworkers' or supervisors' misperceptions about your ability to perform a job, you may be able to bring a disability discrimination lawsuit with a New York City attorney.

For example, if you suffer severe burns, and because of this a prospective employer refuses to hire you, you may qualify as someone with a perceived disability. Similarly, if you are required to take a physical, which shows that you have disc degeneration even though you do not have actual symptoms of impairment, and as a result you are not hired because the employer is scared that you will eventually bring a workers' compensation claim, this also may be a situation in which you have a perceived disability. You must be able to perform the essential functions of the job to call on the protection for perceived disabilities. Only employees who are erroneously believed to be disabled but who can perform essential job duties are protected under the perceived disability discrimination laws.

Retain a Disability Discrimination Lawyer in New York City

If you have suffered from discrimination because others wrongly believe that you are disabled or have made erroneous assumptions about your abilities, you may be wondering about the difference between actual and perceived disability discrimination. At Phillips & Associates, our New York City disability discrimination attorneys can evaluate your particular situation and provide vigorous legal representation as appropriate. Contact us at (866) 229-9441or through our online form to set up a free consultation with a discrimination, harassment, or retaliation attorney. We fight disability discrimination in Staten Island, the Bronx, Queens, Brooklyn, and Manhattan, Westchester, as well as Nassau and Suffolk Counties.