Age and Disability Discrimination
The Americans with Disabilities Act (ADA) prohibits discriminatory employment practices on the basis of disability. To establish a prima facie case of disability discrimination against an employer under the ADA requires an employee to show four elements: the employer is subject to the ADA; the employee is disabled as defined by the ADA, has a record of impairment, or is perceived to be so by the employer; the employee is able to perform essential functions of the job, either with or without reasonable accommodation; and the employer took an adverse employment action against the employee because of, in whole or in part, the employee’s protected disability.
- Employers subject to the ADA
Under the Americans with Disabilities Act (ADA), an employer is generally a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person. 42 USCA § 12111; 29 C.F.R. § 1630.2(e)(1); Warmsley v New York City Tr. Auth., 308 F Supp 2d 114, 119 [EDNY 2004].
As defined in the ADA, amended in 2008, the term “disability” means, with respect to an individual: (1) a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 USCA § 12102(1); Capobianco v City of New York, 422 F3d 47, 56 [2d Cir 2005]; Ryan v Grae & Rybicki, P.C., 135 F3d 867, 870 [2d Cir 1998].
- Reasonable Accommodation
A prima facie case requires establishing that the plaintiff is qualified to perform the essential functions of the position with or without reasonable accommodation. McBride v BIC Consumer Products Mfg. Co., Inc., 583 F3d 92, 96 [2d Cir 2009].
- Employer Adverse Action
An adverse employment action is a materially adverse change in the terms, privileges, duration and conditions of employment. It includes discharge, refusal to hire, refusal to promote, demotion, reduction in pay, reprimand, and negative employment evaluation letters. Treglia v Town of Manlius, 313 F3d 713, 720 [2d Cir 2002].
The ADEA prohibits employers, labor organizations and employment agencies from discriminating against individuals in employment on the basis of age if the individual is forty (40) years of age or older. See 29 U.S.C Section 623. An employer is a person engaged in an 13.2 industry affecting commerce who has twenty (20) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding year.
An age discrimination suit must involve an older individual who was replaced by a younger individual. The Supreme Court has clarified that reverse age discrimination, where a younger employee is discriminated against in favor of an older employee, cannot be brought under the ADEA. Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 599 (2004).
The burden ultimately remains at all times with the plaintiff to initial prove that he or she was discriminated against as a result of his or her age. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002).
A case where the two oldest employees were not promoted despite scoring higher on a qualification list than at least four or five younger employees, out of nine being considered, was as indicative of age discrimination as a substantial age difference. Such evidence was adequate to create an inference that the adverse employment decision was motivated by age discrimination and met the prima facie case requirement. City of Hollywood v. Hogan, 986 So. 2d 634, 643-44 (Fla. 4th DCA 2008).