Even when a worker successfully pursues an employment discrimination claim, that does not always mean the employer will refrain from further illegal acts. If such acts do occur, the employee may be entitled to bring a separate lawsuit to recover any additional damages they suffer. This includes both new, standalone acts of discrimination as well as retaliation against the employee arising from the original claim.
Judge Allows ADA Lawsuit Against ConEd to Proceed
A federal court in Manhattan recently held that a ConEd employee could pursue new claims of discrimination and retaliation against the utility under the Americans With Disabilities Act (ADA). The judge overseeing the case rejected ConEd's efforts to dismiss the case on the grounds that the employee was merely attempting to “double recover” for acts of discrimination addressed in a proceeding previously initiated by the New York State Division of Human Rights (DHR).
According to the judge's order, the DHR ordered ConEd to reinstate the employee after he was illegally terminated in 2011. In his current lawsuit, the employee alleges ConEd required him to undergo both a “pre-employment physical examination” and psychiatric evaluation before reinstating him in 2015. The employee is seeking compensatory and punitive damages under the ADA and New York law for his “significant emotional distress and pain and suffering.”
As the judge explained, it is considered a separate ADA violation when an employer requires an individual to undergo a medical exam as a condition of employment–unless such tests are required for all applicants. In other words, the law “prohibits discrimination among those who are required to undergo examination.” Even if the defendant's improper examination did not result in a failure to offer the plaintiff a job, there may still be damages arising from the “emotional distress” caused by the testing itself. In this case, the plaintiff alleges that he experienced anxiety after a ConEd psychiatric examiner asked him about “physical and verbal abuse” that he suffered during childhood. If proven at trial, the plaintiff would be entitled to collect damages for this type of “pain and suffering.”
Do Not Stand for Disability Discrimination in the Workplace
The U.S. Equal Employment Opportunity Commission has made it clear through numerous policy statements and cases that the ADA “prohibits all disability-related inquiries and medical examinations” of job applicants prior to an offer of an employment. Once a job offer is extended, as in the case above, such exams are only permitted on a non-discriminatory basis for all new employees “in the same job category.” After an employee begins work, medical exams are only justified “if they are job-related and consistent with business necessity.”
If your current or prospective employer is attempting to force you to undergo a medical exam in a manner that is inconsistent with the ADA and New York law, you need to assert your rights. The first step is to contact a qualified New York employment law attorney who understands how to deal with disability discrimination cases. Contact the Law Offices of White, Nisar & Hilferty, LLP. at (646) 760-6493, if you need to speak with an attorney today.