Neurological impairments include cerebral palsy, epilepsy, traumatic brain injury, multiple sclerosis, Tourette’s Syndrome, sleep disorders, and autism. These impairments may affect an individual’s vision, speech, memory, motor skills, muscle actions, or their ability to learn. Some neurological impairments substantially limit one or more of an individual’s major life activity, and thereby places such an individual under the protection of American with Disabilities Act (ADA) as “disabled.” Neurological impairments can be characterized as substantially limiting mental impairments, which are defined under the Americans with Disabilities Act (ADA) as “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”
Unfortunately, individuals with mental impairments, such as neurological disorders often face discrimination in many areas of life, especially in employment, during both the hiring process and while at work. Too often, the desire of individuals with neurological impairments to earn a living and be a part of the workforce are frustrated by prejudice. Applicants with neurological impairments, who have the same skills and qualifications as their peers for a given job, are passed over. These individuals are often misunderstood, and their symptoms and behaviors make people uncomfortable. Similarly, an employer may perceive an individual with a neurological impairment as too troublesome to employee – requiring accommodations, or presenting a risk. This discomfort and incorrect perceptions can lead to discriminatory conduct. Many individuals with a neurological impairment are very capable of completing the essential functions of a position when provided with reasonable accommodations. Under the ADA, employers are required to provide qualifying disabled individuals with such accommodations.
Prejudice against individuals with neurological impairments often begins in the hiring process, completely closing off employment to this population. It is important for individuals with a qualifying disability under the ADA to understand their rights. Employers are forbidden from asking about mental conditions, treatment or use of medication during an interview, and cannot require medical examination during the application process. Conversely, employers are permitted to inquire about accommodations an applicant may need to complete the application, and conduct non-medical examinations to determine an applicant’s ability to complete the essential functions of the position applied for. Further, if a neurological impairment is discovered in a post-offer medical examination, an employee cannot be fired based solely on the presence of the impairment.
Sometimes, an individual will suffer an injury causing neurological impairment while they are currently employed, that will then lead to discriminatory conduct by an employer, including outright dismissal, changes in responsibilities effectuating a demotion without a change of title, actual demotion, or inhibiting advancement by continually failing to promote. In some instances, rather than make these affirmative changes, employers choose to create a hostile work environment in order to push employees out by forcing them to quit.
As discussed above, persons with a neurological impairment that substantially limits one or more major life activities are considered disabled under the ADA and are therefore entitled to protection against employment discrimination. If you live in the metro New York area, including Queens, Brooklyn, Staten Island, the Bronx, and Manhattan, or on Long Island, in either Nassau or Suffolk County, and have experienced discrimination in the workplace because of your neurological impairment, you should contact a New York disability attorney.