Articles Posted in ADA

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By Crismelly Caso

People with disabilities sometimes need a “service animal” to assist them with life tasks.  For example, people with impaired vision might rely on guide dogs for navigation, and those who suffer from seizures may rely on dogs for seizure warnings.  There are also “emotional support animals” to assist those with emotional or mental disorders, such as post-traumatic stress disorder (PTSD).

Under Titles II and III of the Americans with Disability Act (ADA), which apply to government buildings and public accommodations, respectively a “service animal” is defined as a dog (or a miniature horse) that is trained to perform tasks or do work for the benefit of a person with a disability.  This definition, however, does not include “companion animals” (pets), or “emotional support animals.”  Although these animals often have therapeutic benefits, they are not trained to perform specific tasks for their handler.  Under the ADA, owners of public accommodations are only required to permit service animals, not companion or emotional support animals.

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By Edgar M. Rivera

In Kassa v. Synovus Bank, a federal district court in Georgia granted summary judgment in favor of Synovus Bank (the “Bank”), concluding that a mentally ill employee’s sexist comment was not related to his disability and, therefore, the Bank’s decision to terminate him for the comment was not discriminatory.  The court found that Eleventh Circuit law did not support the employee’s argument that the comment directly related to his conditions, including intermittent explosive and impulse control disorders, and should not have resulted in termination.  This case is important because it is one of the few cases dealing with the intersection between different protected classes, specifically, disability and sex.  This case also deals with an open issue in many circuits: whether misconduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.

Since 2013, Tony Kassa has been under care for intermittent explosive disorder, paranoid personality disorder, and alcohol abuse.  Over the years, Mr. Kassa received treatment for depression, anxiety, intermittent explosive disorder, bipolar disorder, alcohol addiction, paranoid personality disorder, and impulse control disorder.  In 2015, Mr. Kassa began working for the Bank as a Network Support Analyst.  In 2016, Mr. Kassa was moved to the ATM team day-shift, which involved answering customer service calls.  In Mr. Kassa’s first performance review, Mr. Kassa earned an “Exceeds Expectations” review in technical resource but “Below Expectations” review in team performance.  On July 20, 2017, Mr. Kassa answered a call from a female Bank teller regarding a customer’s problem with the ATM at her branch.  After a problem with one of his coworkers during the call, Mr. Kassa told the teller, “Nothing personal, I hate working with women.”  She responded “oh, that’s, that’s . . .” and then stopped talking.   Mr. Kassa then added, “Nothing personal, you might be totally different, I don’t know.”  The teller’s manager contacted Mr. Kassa’s supervisor to complain about the call between Mr. Kassa and the teller.  The Bank investigated by listening to a recording of the conversation and decided to terminate Mr. Kassa.  Among other things, Mr. Kassa claimed that he is disabled and that the Bank discriminated against him by terminating him because of his disorders.

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By Crismelly Caso

Despite the fact that 1 in 5 American adults experience a mental illness every year, mental health is not something everyone feels comfortable talking about, especially not with their employers. Bipolar disorder—a disorder associated with episodes of mood wings ranging from depressive lows to manic highs—is one such condition that can be, without treatment and accommodations, particularly challenging to manage in the workplace.  Moreover, the stigma associated with bipolar disorder often impedes some individuals from publicly exercising their rights under federal, state and city laws.

Many may think that bipolar disorder is rare but, in the United States alone, there are approximately 5.7 million people suffering from the disorder.  In fact, it is the sixth leading cause of disability in the world.  There are two types of the bipolar disorder: Bipolar I and Bipolar II.  Bipolar I involves periods of severe mood episodes from mania to depression, while Bipolar II disorder is a milder form of mood elevation, involving milder episodes of hypomania that alternate with periods of severe depression.

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In EEOC v. Wal-Mart Stores Inc., on behalf of Paul Reina—a deaf, visually impaired, and intellectually disabled, cart pusher—the EEOC sued Wal-Mart Stores Inc. (“Wal-Mart”) under the Americans with Disabilities Act (“ADA”) for failure to accommodate Mr. Reina’s request to work with a “job coach.”  Wal-Mart moved for summary judgment, which on December 18, 2018, a federal district court denied on the grounds that disputed issues of material fact remained as to whether Mr. Reina was a “qualified” individual and “whether allowing a permanent job coach was a reasonable accommodation.”

In 1998, Mr. Reina began working at Wal-Mart as a cart pusher.  In 1999, Wal-Mart allowed Mr. Reina several accommodations, including the ability to work with a job coach.  The job coach assisted in several ways, including watching for oncoming cars, helping Mr. Reina stay focused on tasks, prompting Mr. Reina to help a customer if a customer needed help loading their car, and steering longer lines of carts.  Over the years, Mr. Reina worked with several different job coaches and, with their assistance, Mr. Reina’s performance ratings were generally positive.

Working with a job coach did not go without incident.  In 2012, a shift manager reported an altercation between Mr. Reina and a job coach.  Caught on tape, the job coach was seen physically abusing Mr. Reina.  The police said the report was unfounded because there were no physical injuries.  This incident, however, made Mr. Reina’s direct manager question Mr. Reina’s need for a job coach and asked Mr. Reina to provide medically supported information about his condition and reasonable accommodation.  Mr. Reina’s physician confirmed that Mr. Reina needed a job coach to do Mr. Reina’s “seeing and hearing.”  What happened after that is disputed.  The manager claimed that he asked for more information but Mr. Reina denied that the manager made such request, instead telling him to wait to hear from him.  Mr. Reina was not placed on a schedule or contacted and lost access to Wal-Mart’s job portal.

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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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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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