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By Leah Kessler and Crismelly Caso

Martin Luther King Jr. Day (or “MLK Day”) is a federal holiday observed on the third Monday of January each year to celebrate the life and achievements of Martin Luther King Jr., an influential American civil rights leader.

Dr. King’s sustained political activism has influenced and improved our country in countless ways, including the passage of the Civil Rights Act of 1964 (“CRA”), which in turn created the Equal Employment Opportunity Commission (“EEOC”)—a federal agency that administers and enforces civil rights laws against workplace discrimination.  As a result, in 2017, 84,254 individuals filed charges with the EEOC, seeking legal recourse against employers subjecting them to work environments in which they were demeaned and dehumanized.  He was closely involved in the passage of the National Labor Relations Act—which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages.

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By Leah Kessler

Last year, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, which we blogged about here.  In doing so, New York has increased the safety of men and women in the workplace.  This is an important task, as there are approximately 321,500 cases of rape and sexual assault reported annually in the U.S.—a number far less than the projected actual number, as victims are often too afraid to report their experiences.  These laws are an important step forward, effectively holding employers and companies to a higher standard to improve the workplace, especially for the over 74 million women in the labor force today.

In May 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act—comprehensive legislation aimed at addressing and preventing sexual harassment in the workplace.  Notably, this act expands the City Human Rights Law in cases of gender-based harassment by increasing the statute of limitations to bring claims to the New York City Commission on Human Rights from one- to three-years, regardless of the size of their employer.  In addition, it requires all employers in the City to display anti-sexual harassment rights and responsibilities in both English and Spanish.  Employers are also required to post a mandatory notice provided by the New York City Commission on Human Rights as well as a mandatory notice to all new hires. (The notices are found here and here, respectively.) Employers must already be in compliance with these posting requirements.

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The Harman Firm, LLP is proud to announce that we have a new partner at the firm, Edgar M. Rivera, Esq.  Ed started as an associate here at The Harman Firm, LLP after graduating from Fordham University School of Law in 2014.
Ed is an aggressive and zealous advocate for employees who have been subjected to harassment, discrimination, retaliation, and wage-and-hour violations. Ed has represented hundreds of employees in individual, multi-plaintiff, collective- and class action litigation before state and federal courts in New York, New Jersey and Florida in English and Spanish.
Ed is a member of the National Employment Lawyer Association (“NELA”), where he participates in NELA’s discussion boards and conferences, including the annual Trial Boot Camp in Chicago. He is published in the New York State Bar Association Labor and Employment Law Journal, serves as the editor of the New York Employment Attorney Blog, The Harman Firm, LLP’s employment law blog, and frequently speaks on issues in employment law. He has also appeared on a PIX 11 segment “Know Your Rights: Harassment in the Workplace,” where he discussed identifying and reporting sexual harassment in the workplace, and regularly speaks on employment-law issues.
Last year, Ed won two trials, including a six-figure jury verdict in a wage-and-hour case. We’d like to congratulate, Ed.!
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By Edgar M. Rivera

On December 19, 2018, in Lipp v. Cargill Meat Solutions Corp., the Eighth Circuit affirmed summary judgment against Sheena Lipp, concluding that the she could not make a prima facie case that she was a “qualified individual” and, thus, dismissing her disability discrimination and failure-to-accommodate claims under the Americans with Disabilities Act (“ADA”).

From 1995 until 2014, Ms. Lipp worked for Cargill Meat Solutions Corp. (“Cargill”), a meat processing facility, where she stacked and supplied empty boxes to the production line, labeled boxes, manually moved pallets, and packed boxes. In 2000, she was diagnosed with lung disease, which made it difficult for her to walk, run, or otherwise exert herself physically, especially during “flare-ups,” thereby rendering her “disabled” under the ADA.  Beginning in October 2012, she required several work accommodations, including taking days off during flare-ups, which Cargill permitted. 

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Jessica Ellis

On September 24, 2004, in Tambash v. St. Bonaventure, a New York District Court held that an employer is on notice that leave under the Family and Medical Leave Act (“FMLA”) may be needed where the employer is aware of its employees’ mental health condition.  While this case is not new, it is worth looking back at.  Tambash ensures that employers who know of their employees need for leave are not off the hook.

In Tambash, Plaintiff Terrence N. Tambash accepted a position by St. Bonaventure University (the “University”) as a security personnel and rose to Director of Security Services.  Ten years later, Mr. Tambash began to experience depression and anxiety.  Due to the significant decline of his mental health, Mr. Tambash requested a one-month vacation to deal with his stress and depression and notified his supervisor that he would need to take a medical leave for mental health reasons after returning from vacation.  Mr. Tambash was an FMLA-eligible employee.  Unfortunately, while on vacation, Mr. Tambash received a letter stating that the University had terminated his employment due to unsatisfactory work performance, neglecting his duties, and incompetence.  Mr. Tambash sued, alleging that the University had interfered with his right to take leave under the FMLA.

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By Edgar M. Rivera, Esq.

In December 2017, by a vote of 48 to 2, the New York City Council passed by a vote of 48-2 Local Law No. 59 (2018), amending the New York City Human Rights Law (“NYCHRL”) by creating an independent cause of action against employers who fail to engage in the interactive process to determine if an accommodation of an eligible employee is needed.  In other words, an employer may not “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation,” whether related to a disability, religious practices, pregnancy or childbirth, or needs as a victim of domestic violence.  The law went into effect on October 15, 2018.

The term “cooperative dialogue” means the process by which a covered entity and an employee who may be entitled to an accommodation engage in good faith dialogue (written or verbal) concerning an employee’s accommodation needs.  This dialogue may include any of the following: potential accommodations that may address the employee’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.

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Leah Kessler

Enacted in 1990 by President George H. W. Bush, the American with Disabilities Act (the “ADA”) is a federal civil rights law prohibiting discrimination on the basis disability.  The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment, or being regarded as having such an impairment.”  With its passage, for the first time, Congress recognized that physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, and curbed prejudice, antiquated attitudes, and societal and institutional barriers that people with physical or mental disabilities frequently face.  As one of the most comprehensive pieces of civil rights legislation, the ADA ensures that people with disabilities have the same opportunities as everyone else.

Title I of the ADA (“Title I”) addresses disability discrimination in the workplace, helping individuals with disabilities access the same employment opportunities and benefits available to people without disabilities.  An important component of the ADA—and a feature that is unique among other civil rights laws, including the Civil Rights Act of 1964—is its requirement that employers provide reasonable accommodations to qualified applicants or employees.  A “reasonable accommodation” is a change that accommodates employees with disabilities so they can do their job without causing the employer “undue hardship.”  Title I also establishes guidelines for the reasonable accommodation process and addresses medical examinations and inquiries.  Title I applies to employers with at least 15 employees.

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Edgar M. Rivera, Esq.

According to the NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, approximately one million residents (11.2 percent of the population) of New York City live with a disability.  Fostering environments of inclusivity and accessibility allow people with disabilities to enter and remain in the workforce and meet their most basic and critical needs.  The New York City Human Rights Law (“NYCHRL”)—New York City’s local anti-discrimination statute—is one of the most broad and remedial in the country.  It must be construed “independently from similar or identical provisions of New York State or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”  In addition, exemptions to the NYCHRL must be construed “narrowly in order to maximize deterrence of discriminatory conduct.”

As a result, the provisions of the NYCHRL that prohibit disability discrimination are generally broader than the Americans with Disabilities Act (“ADA”).  An individual is considered disabled, within the meaning of the ADA, if he has a physical or mental impairment that substantially limits one or more of the major life activities, has a record of such an impairment, or has been regarded as having such an impairment.  Under the NYCHRL, however, a “disability” means “any physical, medical, mental or psychological impairment, or a history or record of such impairment.”  The NYCHRL definition of disability is “liberalized and expansive.”

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The Americans with Disabilities Act (“ADA”) prohibits discrimination against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.  A plaintiff bringing an ADA claim has two major hurdles to pass on their way to a trial: a motion to dismiss and motion for summary judgment.

At the motion-to-dismiss stage, a plaintiff need only allege facts that provide “plausible support to the reduced requirements” of the prima facie case.  Thus, to survive a motion to dismiss, “what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.  At issue is whether Plaintiff alleges facts sufficient to demonstrate that (1) he is a member of the protected class, i.e., whether he suffers from a disability as defined by the ADA, (2) he was qualified to perform the essential functions of his job with or without a reasonable accommodation, and (3) there is a plausible inference he was terminated because of his disability.

A three-step approach is used to determine whether an individual has a disability under the ADA. Plaintiff must establish that (1) he suffers from a physical or mental impairment; (2) the impairment affects a “major life activity;” and (3) the impairment “substantially limits” that major life activity.  A major life activity is an activity that is “of central importance to daily life.”  The term “ ‘substantially limits’ ” is “construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA and is not meant to be a demanding standard,” such that “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”  Furthermore, whether an individual’s impairment substantially limits a major life activity is a determination that “shall be made without regard to the ameliorative effects of mitigating measures,” such as medication or “learned behavioral or adaptive neurological modifications.”

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By Edgar M. Rivera, Esq.

In Beaton v. Metropolitan Transportation Authority, the Southern District of New York denied a motion filed by the Metropolitan Transportation Authority (“MTA”) to dismiss Earl Beaton’s disability discrimination claims under the American with Disabilities Act (“ADA”) and New York City Human Rights Law (“NYCHRL”), including wrongful termination, failure to provide a reasonable accommodation, and retaliation claims.  Beaton had appeared to be sleeping on the job because his schizophrenia medication caused his eyes to close.  The MTA immediately suspended and then terminated his employment, despite having knowledge of his disability.  Beaton maintained that “his disability was the cause of his termination.”

Beaton was diagnosed with schizophrenia in 1985.  Schizophrenia is a chronic and severe mental disorder that affects how a person thinks, feels, and behaves.  Although schizophrenia is not as common as other mental disorders and the symptoms can be very disabling, it can be treated with the right medications. Beaton’s symptoms included depression, anxiety, paranoia, mental instability, auditory hallucinations, and the belief that other people can read his mind.  As a result, Beaton’s schizophrenia impairs his ability to work, think, communicate, sleep, learn, focus, concentrate, and remain awake.  Beaton received psychiatric care since his diagnosis and has been successful in treating his mental condition with antipsychotic medication.  Specifically, Beaton was prescribed Fluphenazine for the past ten years, which permitted him to maintain stable periods without schizophrenia symptoms.

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