How To Avoid A Potential Pitfall For Disability Discrimination Claims

Employees that file (or intend to pursue) a claim for disability discrimination must be careful if they also file a claim for short-term, long-term or Social Security disability benefits.   The need for caution arises because the elements necessary to pursue a claim for disability discrimination require that the employee be able to perform their essential job duties, either with or without a reasonable accommodation.  As a result, some individuals seriously hurt their chances of pursuing a claim for disability discrimination (where the damages can be far greater) because they previously provided statements to support their claim for disability benefits that are inconsistent with the elements of a discrimination claim.   Before we discuss how to avoid this, let’s take a look at the background of the disability discrimination laws and standard short/long term disability benefit policies.

The Americans With Disabilities Act and New York State & City Law

The Americans with Disabilities Act is a federal law that generally prohibits discrimination against individuals with disabilities and requires an employer to attempt to accommodate employees that suffer from a disability.  Specifically, the ADA prohibits an employer from discriminating against “a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”  In order to be a “qualified individual” – and thus be able to pursue a claim for disability discrimination – an individual must be able to perform the essential functions of the position, either with or without reasonable accommodation.

While the New York State Human Rights Law is generally much broader than the ADA, the NYSHRL also requires that an individual be able to perform the functions of the position.  Specifically, the NYSHRL provides that:

[I]n all provisions of this article dealing with employment, the term [disability] shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

 Though the statutory language is different, the result is the same under the New York City Human Rights Law: 

In any case where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job or enjoy the right or rights in question.

 As the above demonstrates, if you cannot perform the work at all (i.e., even with a reasonable accommodation) because you are totally disabled, then you fall outside of the protection of the ADA, the NYSHRL and the NYCHRL and your employer can lawfully terminate your employment.

Short-Term Disability Benefits

New York State’s Disability Law requires an employer to provide short term disability benefits to eligible employees (meaning those that meet certain length of service requirements) in the event of an off-the-job disability – the off-the-job limitation exists because injuries suffered on the job are covered by the Workers’ Compensation Law.  The Disability Law defines a “disability” as:

[T]he  inability  of an employee, as a result of injury or sickness [defined as an “accidental injury, disease, infection or illness or incapacitation as a result of being an organ  donor in a transplant operation” or pregnancy] not arising out of and in the course of an employment, to perform the regular duties of his employment or the duties of any other employment which his employer may offer him at his regular wages and which his injury or sickness does not prevent him from performing.

The Disability Law makes no mention of whether a reasonable accommodation would permit the employee to still perform the work.  Instead, in order to apply for short-term disability benefits, an employee need only have suffered an injury or illness that makes the employee unable to perform the regular duties of their position or any other position the employer might have (without regard to any accommodation) . (To give you an idea of the type of information you will need to provide, here is a sample short term disability claim form).  Notwithstanding this, you can still run into trouble if you or your doctor claim that you are totally disabled or unable to perform your regular job duties without some kind of an accommodation – and it is important to note that a short leave of absence is an example of an accommodation that you or your doctor could ask for.

Long-Term Disability Benefits

Unlike short-term disability benefits, employers are not required to provide their employees with short-term disability benefits.  Instead, these benefits are an insurance policy taken out by either the employer or the employee and are governed by the terms of the policy.  Because each policy can be different, you should review the terms of your policy carefully and seek the advice of an attorney with any questions.  With that in mind, most long term disability policies will not require you to be completely unable to work in order to be eligible for benefits.  However, as with an application for short-term disability benefits, both you and your medical provider should be very careful when submitting the paperwork for long-term disability benefits. (Here is a sample long term disability claim form).  Not only it is important not to overstate things, but it would also be advisable to consider whether there are any accommodations that your employment could make that would permit you to continue working and to reference such proposed accommodations in the long-term disability paperwork.  The one thing that you and your doctor want to avoid is certifying that you are completely unable to work for an extended period of time because, as discussed above, that may disqualify from you pursuing a discrimination claim.

Social Security Benefits

Social Security has adopted a much stricter definition of “disability” which requires that an individual be totally disabled in order to receive benefits.  The Social Security Administration will consider you “disabled” if: (i) you cannot do work that you did before, (ii) they decide that you cannot adjust to other work because of your medical condition and (iii) your disability is expected to last for at least one year or result in death.  Because of the SSA’s strict definition of “disability” it is much more difficult for you to apply for Social Security disability benefits and still pursue a claim of disability discrimination.

Case Law Discussing This Topic

Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999): In deciding whether an employee’s prior successful application for Social Security disability benefits barred him from pursuing a discrimination claim, the U.S. Supreme Court held that an employee’s pursuit of these benefits was not an automatic bar to an ADA claim, but stated that an employee “cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability application.  Rather, [an employee] must proffer a sufficient explanation” for any inconsistency in order to avoid the court dismissing their claims.

DeRosa v. National Envelope Corp., 595 F.3d 99 (2d Cir. 2010): In this decision, the federal appeals court in New York reversed a lower court dismissal of the case and found that the employee’s statements in his application for Social Security benefits did not contradict his position on the issue of whether he was able to fulfill the essential functions of his employment with reasonable accommodation.  In doing so, the court noted:

The statement “I am disabled” on an SSDI application should generally be taken as a statement that “I am disabled for the purposes of the Social Security Act.” The Social Security Act does not concern itself with reasonable accommodation.


It is important for you to be extremely careful in the information that you provide on your application for disability benefits if you also intend to pursue a claim for discrimination.  Certifying that you are completely disabled or unable to work in any capacity could prevent you from pursuing a discrimination claim.  At the very least, you can be assured that your employer will scour anything that you submit in the hopes that they can find something to use against you in a subsequent discrimination, so proceed cautiously.

If you have additional questions about this topic or would like to be connected with an attorney that can assist you in pursuing a discrimination claim, please contact us below:

About Publius

"Publius” a former labor and employment litigation attorney in New York City with experience representing both management and employees in a broad range of labor and employment matters. As a "reformed" attorney, Publius is looking to provide the people of New York City with information that will educate them as to their legal rights and, if appropriate, connect individuals with attorneys that can assist them.
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