Disability Discrimination During Layoffs: Your Rights in NJ

Layoffs are stressful for everyone. When companies downsize, reorganize, or restructure, employees worry about job security, paying bills, and what comes next. But if you’re an employee with a disability — be it a visible condition or an invisible disability (like chronic illnesses or neurological conditions) — layoffs can bring an added layer of fear: Am I being targeted because of my disability? Is my employer using a layoff as an excuse for discrimination? 

In New Jersey, the law protects employees with disabilities from being singled out or unfairly treated during layoffs. But what does that look like in practice? How can you tell the difference between a legitimate layoff and one that violates your rights? And what should you do if you suspect discrimination?

Let’s unpack what you need to know, so you can protect yourself and make informed choices.

What Is Disability Discrimination During Layoffs?

Disability discrimination happens when an employer treats an employee less favorably because of their disability. During layoffs, this can take several forms, including:

• Selecting employees with disabilities for termination because of assumptions about their abilities
• Using attendance related to medical conditions as a reason to target workers with disabilities
• Failing to consider reasonable accommodations during the layoff process
• Applying layoff criteria that disproportionately impact employees with disabilities
• Retaliating against employees who requested accommodations or took medical leave

These actions can violate both the New Jersey Law Against Discrimination (NJLAD) and the federal Americans with Disabilities Act (ADA).

NJLAD: Strong Protection for Employees with Disabilities

Under NJLAD, it is illegal for employers to:

• Discriminate against employees because of actual or perceived disabilities
• Fail to provide reasonable accommodations unless they cause undue hardship
• Retaliate against employees for requesting accommodations or asserting their rights

This means employers can’t legally base layoff decisions on disability status or punish workers for taking protected medical leave.

What About Layoffs for Legitimate Business Reasons?

Employers are allowed to lay off employees for legitimate business reasons, like poor company performance, reduced revenue, or eliminating redundant positions. But even in these cases, employers must apply layoff criteria fairly and without discriminating against protected groups, including employees with disabilities.

If a layoff disproportionately affects employees with disabilities or if the employer’s stated reasons don’t add up — it could be a sign of unlawful discrimination.

Signs Disability Discrimination May Be Behind a Layoff

While every situation is unique, here are some red flags that suggest disability discrimination could be a factor:

• Pattern of targeting disabled employees: Employees with disabilities are laid off at a higher rate than others in similar roles.
• Negative comments about disability: Managers made remarks like “They can’t keep up” or “We need someone who doesn’t call out sick.”
• Recent accommodation requests: You or others who asked for accommodations were laid off soon afterward.
• Attendance used unfairly: Time off for disability-related medical appointments or leave was counted against you.
• Inconsistent criteria: The company says performance was the basis for layoffs, but your record was strong compared to coworkers who kept their jobs.
• Replacement with nondisabled workers: After the layoff, the employer hires new employees without disabilities for similar positions.

How to Protect Yourself Before, During, and After Layoffs

1. Know Your Rights

If your condition qualifies as a disability, NJLAD and the ADA protect you from discrimination during layoffs. Employers cannot legally consider disability status when deciding who stays and who goes.

2. Keep Good Records

Save performance reviews, attendance records, emails about accommodations, and any communications showing your work contributions. This documentation can help you demonstrate your value — and spot inconsistencies if you’re selected for layoff.

3. Ask About Layoff Criteria

If you’re told you’re being laid off, it’s fair to ask what criteria were used to make the decision. Legitimate factors include seniority, objective performance metrics, or role elimination. Vague or shifting explanations can be red flags.

4. Compare Notes

If possible, discreetly talk to coworkers to see who else was affected and what they were told. Patterns of layoffs that disproportionately impact employees with disabilities could indicate discrimination.

5. Request a Written Explanation

Consider politely asking your employer for a written statement of why your position was chosen for elimination.

Reasonable Accommodations and Layoffs

A common myth is that employees with accommodations are more likely to be laid off because they cost more or are “difficult.” But under NJLAD, it’s illegal to use the need for accommodation as a basis for termination.

Employers must:

• Continue providing accommodations up to the end of employment
• Not target or punish employees because they requested or used accommodations
• Consider alternative accommodations if a layoff affects an employee’s ability to perform essential duties

For example, if a company is reorganizing and eliminating certain positions, but an employee with a disability could perform another open role with accommodations, the employer should consider reassignment before termination. You can’t be fired for needing reasonable accommodations.

The Role of Attendance in Layoffs

Attendance policies are a common way employers attempt to disguise discrimination. But there’s a difference between unexcused absences and disability-related absences protected by the Family and Medical Leave Act (FMLA) or as a reasonable accommodation.

If your absences were due to documented, disability-related medical needs, your employer generally can’t hold them against you when making layoff decisions. And while employers can ask for documentation to support accommodations, they cannot question your disability status in a way that’s invasive or discriminatory.

Retaliation for Asserting Your Rights

It’s illegal for employers to retaliate against employees who:

• Request reasonable accommodations
• File complaints about discrimination
• Participate in investigations or lawsuits regarding discrimination
• Oppose practices they reasonably believe are unlawful

If you’re laid off shortly after asserting your rights, that timing can be evidence of retaliation.

What Should You Do If You Suspect Disability Discrimination?

If you believe you were selected for layoff because of your disability or because you requested accommodations, you have options:

1. Gather Evidence Document conversations, performance records, accommodation requests, and anything that shows your treatment differs from coworkers.
2. Review the Layoff Notice Read your termination letter carefully. Note any inconsistencies with what you were told verbally.
3. Contact HR Ask for clarification about why your position was chosen for layoff and request a written explanation if possible.
4. File a Complaint You can file a charge of discrimination with the New Jersey Division on Civil Rights (DCR) or the federal Equal Employment Opportunity Commission (EEOC). In NJ, you typically have 180 days from the last act of discrimination to file with DCR.
5. Talk to a Lawyer A disability discrimination lawyer in New Jersey can evaluate your situation, help gather evidence, and guide you through your options.

What If Your Employer Offers Severance?

Many employers offer severance packages during layoffs. But be careful: Severance agreements often include a waiver of your right to sue for discrimination.

Before signing:

• Review the agreement carefully.
• Consider consulting a disability discrimination attorney in New Jersey
• Make sure you’re comfortable with any rights you’re giving up.

Signing away your right to challenge discrimination is a big decision. Take your time.

How Employers Can Avoid Disability Discrimination During Layoffs

Some employers use common excuses: “We’d love to help, but it would be too expensive.”, or “We’re treating everyone equally.”. Smart employers know that fair, consistent, and legally compliant layoff processes protect them from lawsuits and foster trust. Best practices include:

• Using objective, job-related criteria (e.g., documented performance, seniority, or role redundancy)
• Applying criteria consistently across all employees
• Keeping detailed records of layoff decisions and the reasons for them
• Consulting HR or legal counsel before finalizing layoff lists
• Ensuring layoff decisions aren’t based on disability or any other protected trait

Fairness Matters — and So Does the Law

According to the EEOC’s 2022 annual report, the most common disability-related complaints involved workers being fired (66.7%), followed by denied accommodations (55.6%), and issues with hiring (25.9%) rounding out the top three concerns.

Layoffs are difficult, but they should never target employees with disabilities or punish those who’ve exercised their rights. New Jersey law is clear: disability discrimination during layoffs is illegal.

 If you suspect you were let go because of your disability, don’t assume there’s nothing you can do. By understanding your rights around layoffs and disabilities in NJ, documenting what happened, and getting help if needed, you can stand up for fair treatment — for yourself and others.