Multiple Sclerosis (MS) is a neurological impairment that is progressive in nature affecting an estimated 400,000 Americans. MS is best described as an autoimmune disease affecting the central nervous system; the brain, spinal cord and optic nerve. In individuals with MS, the immune system attacks the central nervous system, damaging the protective coating surrounding the nerves (myelin), which results in lesions or scars throughout the central nervous system. The cause of MS remains unknown, and while there is treatment, there is no cure. Early treatment is important as research has shown that more damage occurs in the first year, as opposed to later years. Additionally, various treatments are currently available that decrease frequency of relapse and delay progression of the disease. This is extremely important for individuals of working age who are diagnosed with MS, as the most common form of MS (Relapsing-Remitting MS) creates temporary period of symptoms called relapses, flare-ups or exacerbations when new symptoms appear. When relapses and flare-ups occur, functions of daily life often become difficult. Frequency and duration of symptoms may vary and include fatigue, tingling, pain, or numbness, problems with balance and walking, changes in vision, impaired thinking or understanding, poor muscle coordination, slurred speech and stuttering, and bladder and bowel problems. All of these symptoms make remaining in the workforce, especially full-time, extremely difficult.
Frequently, individuals with MS encounter prohibited discriminatory conduct during the hiring process. Employers are prohibited from asking specifically or directly about medical conditions, use of medication, or treatments during the application process. Further, if an individual chooses to disclose this information to a future employer, the employer is required to keep this information strictly confidential. Conversely, employers are permitted to ask if an applicant will need accommodations to complete the application, and can conduct non-medical tests to measure the applicant’s ability to perform job related functions. If an employee is offered a job position without having disclosed his or her diagnosis and it is later discovered during a required medical examination, an employer can only withdraw a job offer if post-offer examination show that employee is unable to perform the essential functions of the position applied for.
Once in the workforce, common employment discrimination experienced by individuals with MS is discrimination based on the perception that because an individual suffers from MS, he or she is not qualified to perform the essential functions of his or her job. These misperceptions manifest themselves in a variety of discriminatory conduct, including firing an employee, changing an employee’s responsibilities or position to effectuate a demotion without ever changing the employee’s title, or continually failing to promote an employee. These changes are discriminatory when they are made based on the individual’s disability, rather than merit or an employee’s ability to perform the essential functions of a position. In some instances, instead of making these affirmative changes, employers choose to create a hostile work environment in order to push employees out by forcing them to quit, which is considered discriminatory as well.
Persons living with and being treated for MS are considered disabled under the Americans with Disabilities Act (ADA) and are therefore entitled to protection against discrimination. If you live in the New York area, including Westchester, Putnam, Queens, Brooklyn, Staten Island, the Bronx, and Manhattan, or on Long Island and have experienced discrimination in the workplace because of your MS or related symptoms, you should contact a New York disability attorney.