New York Disability Discrimination Lawyers | Liszka Law Firm

New York Disability Discrimination Lawyers | Liszka Law Firm

New York Disability Discrimination: How to Prove it

In this article we discuss how to prove New York disability discrimination. Proving disability discrimination requires two things:

  • an understanding of how the court analyzes the evidence, and
  • an understanding of what evidence is needed.

There are many pieces of evidence to help you prove New York disability discrimination, which we have outlined here for you, as well as the steps needed to prove your case.

First you must establish a prima facie case. Afterward, the employer must offer a legitimate, non-discriminatory reason for the adverse employment action taken against you. The burden then falls to you to show that the proffered reason is a pretext, and that the real reason is because of your status as a disabled person.

Making out a prima facie case is not particularly difficult. It requires some evidence of a discriminatory reason for the adverse employment action taken against you. However, showing that the employer’s proffered reason is a pretext can be especially challenging. In court, the judge and jury consider several types of evidence to find whether the employer’s reason is pretextual or not.

Proving New York Caregiver Discrimination: Types of Evidence Used

  • Direct Evidence: Direct evidence is a “smoking gun”, like an e-mail you accidentally were CC’d on from your boss that says some degrogatory comment about your status as a disabled person.
  • Or, an interview that went well, but then you’re told you didn’t get the job because of something to do with your disability status. While this kind of evidence rarely happens, it’s very strong stuff.
  • Disparate Treatment: This kind of evidence is used to show you were treated differently because of your disability. For example, if you and a younger person apply for a job, but you are more qualified, yet he gets the job, that is indirect evidence of disability discrimination. Another example is where you get passed over for a promotion, or get less favorable work assignments than an employee who is not disabled, who is less qualified.
  • Disparate Impact: This kind of evidence usually involves a policy by the employer that appears neutral on its face, but actually disproportionately harms disabled employees, and has nothing to do with the essential job duties.

New York Disability Discrimination: Documents Needed

Personnel File

  • Any document which falls within the definition of the terms “personnel file,” “medical records,” or “security files”.
  • The employee’s application for employment and all related documents such as the resumé; curriculum vitae; notes of interviews conducted before the hiring decisions.
  • correspondence sent to or from the company regarding the application or hiring decision; any internal company documents containing evaluation of the employee’s qualifications for employment.
  • the offer letter; the employee’s acceptance.
  • references received concerning the employee.
  • documents relating to background investigations or reference checks performed by employers or agents of the defendant before employee was hired.
  • The contract of employment, if one exists, as well as any documents setting forth any oral agreements concerning the terms and conditions of employment.
  • The position or job description, if available, or any other document setting forth the duties and responsibilities of the position, if these will be important in your case.
  • Any records reflecting the employee’s progress or lack thereof since employed, including records reflecting promotion, advancement,demotion, transfer and the like.
  • Any awards, honors or distinctions earned.
  • Evaluations, performance reviews, warnings or complaints about employee’s performance.
  • Letters of reference provided to employee.
  • Inquiries to the defendant from prospective employers or third parties regarding employee’s employment record with the defendant, as well as its responses.

In many cases, it will be necessary to obtain documents concerning other applicants or employees, including comparators, those hired over your the employee, those promoted instead of the employee, those retained in a layoff, or similarly situated employees who are not fired.

When dealing with a termination case, you may also need to examine the resumé of those offered the employee’s position before or after employee was discharged.

Documents Relating to Damages

    complete wage and salary history, including bonuses, stock options and other items relevant to damage calculations. This should include all W-2s and 1099s.

  • Any documents describing important fringe benefits, such as retirement plans, 401(k) plans, ESOP plans, profit-sharing plans, life, health and disability insurance, automobile and other benefits. To the extent any of these benefit plans are subject to ERISA, be sure to secure the trust agreements governing them, the plan document and the summary plan description.
  • Information regarding the cost to the employer of providing these plans, including any contributions made to them on the employee’s behalf, as well as any cost, premium or contribution assessed against or charged to the employee. Ask for any personal statement of benefits provided by the employer to your client, listing the value or cost to the employer of providing benefits such as pension and insurance.

The Parties’ Statements, Writings, etc.

  • Documents by either party regarding the act or omission which is at issue, such as a failure to hire, promotion, demotion, transfer, layoff, termination, or refusal to accommodate, or the events leading up to it or factors influencing the decision. This would include internal company memoranda and other documents addressing the decision-making process. In the case of a termination, for example, you want to obtain the notice of termination, any letter concerning the termination, any memorandum or notes taken at a meeting or discussion with the employee concerning the termination, exit interview notes, the “pink slip” provided to the employee.
  • In a case concerning a layoff, you should seek documents describing the criteria or factors management should consider in selecting employee to be let go. Also documents, including statistical data and performance evaluations of other employees, which defendant considered before arriving at the decision to layoff the employee. Equally important would be documents, such as notes or minutes, which concern meetings or discussions among decision-makers concerning the layoff selection process. Documents concerning other employees laid off or transferred, including names, [sex, age, race], most recent job title and employment history, number of years of service, the job to which he/she was transferred, why he/she was let go, transferred or retained.
  • Forms submitted to the Unemployment Office or the EEOC, ask the company for e-mails, notes, memos, letters, internal complaints, grievances, computer files or the like, authored by the employee.
  • If you’re a member of a union, you will also want to obtain the pertinent collective bargaining agreement as well as copies of any grievances or other materials submitted in connection with arbitrations concerning your client and the issues involved.

Rules, Policies, Procedures, Handbooks, Manuals

  • Request documents to determine whether the employer has dealt with the situation in the manner dictated by its internal policies governing the particular action or decision under review.
  • Request the company’s rules, personnel policies, employee relations guidelines,handbooks, manuals, supervisor’s manuals, EEO manuals, and the like, which set forth the procedure and the substantive rules which should have been considered and followed, if the company was motivated by the factors on which it now relies.

Other Articles You Might be Interested in:

New York Disability Discrimination Lawyers

New York Disability Discrimination: Examples

New York Disability Discrimination: Damages

If you’re interested to know whether you have a disability discrimination case, feel free to contact Liszka Law Firm for a free consultation at 347-762-5131 or Be sure not to use your work e-mail.


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