DISABILITY LAW IN WORK AND SCHOOL
Individuals with disabilities often are stigmatized, encountering attitudinal and physical barriers both in work and in daily life. Although federal legislation (e.g., Americans With Disabilities Act of 1990) protects the inherent rights of individuals with disabilities, that legislation cannot always protect them from subtle forms of discrimination and prejudice. School-age students with disabilities often have negative school experiences related to their having a disability, and school counselors, administrators, and teachers can help to create more positive school experiences that promote their academic, career, and personal/social growth. By examining the attitudes and behaviors of school staff and students as well as systemic factors related to the school, school counselors in collaboration with other school personnel can determine areas for intervention and respond accordingly.
The New Jersey Law Against Discrimination (LAD) prohibits employers from discriminating in any job-related action, including recruitment, interviewing, hiring, promotions, discharge, compensation and the terms, conditions and privileges of employment on the basis of any of the law's specified protected categories. These protected categories are: race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy and sexual harassment), marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information liability for military service, or mental or physical disability, including AIDS and HIV related illnesses. The LAD prohibits intentional discrimination based on any of these characteristics. Intentional discrimination may take the form of differential treatment or statements and conduct that reflect discriminatory animus or bias.
Moreover, an employment policy or practice that is neutral in its terms may be deemed unlawful if the policy or practice has an adverse impact on protected groups. However, the disparate impact may be lawful if the employment policy or practice meets an important, legitimate business need that cannot be served with a non-discriminatory measure. For example, screening out applicants for employment based on certain physical traits, such as setting a minimum height requirement, may exclude disproportionate numbers of women and people of certain national origins or ancestries. If the height requirement has a disparate impact on a protected group and is not related to an applicant's ability to perform important job duties, it may be deemed unlawful. To establish the lawfulness of a policy or practice that has a demonstrated disparate impact, an employer would have to establish that the policy is job related and consistent with business necessity, and that effective alternative practices are not available.
A physical requirement is more likely to be regarded as unlawful if there is an alternative measure of job related abilities, such as strength or stamina tests, that would provide a more accurate evaluation of a candidate's ability to perform without screening out qualified members of groups that historically have been excluded from particular jobs.
Disability and Medical Leave Laws
Employees are entitled to unpaid medical leave if both they and their employer qualify under the Family Medical Leave Act. Under the Americans with Disabilities Act (“ADA”), unpaid medical leave may be considered a reasonable accommodation to address an employee’s disability or perceived disability.
Federal and state laws entitle eligible employees of covered employers to take an unpaid, protected leave of absence to care for the serious health condition of themselves or for specific family members. For instance, pregnant employees (and their spouses) are entitled to leave for their pregnancy under federal and state laws. These laws also provide guarantees of reemployment to eligible employees who take their job protected leaves of absence and prohibit an employer from retaliating against an employee because of his or her need for a medical leave.