Articles Posted in ADA

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Edgar M. Rivera, Esq.

On April 30, 2018, in Sépulveda-Vargas v. Caribbean Restaurants, LLC, the First Circuit affirmed the U.S. District Court for the District of Puerto Rico’s dismissal of Victor Sépulveda-Vargas’s reasonable accommodation claim under the Americans with Disabilities Act (ADA).

Mr. Sépulveda, an assistant manager at Caribbean Restaurants LLC (“Caribbean”), which operates Burger King restaurants in Puerto Rico, suffered from post-traumatic stress disorder (PTSD) and depression after he was attacked at gunpoint, hit over the head, and had his car stolen while making a bank deposit on behalf of Caribbean Restaurants.

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The Harman Firm is proud to report that on February 12, 2018, Judge Vernon S. Broderick of the U.S. District Court for the Southern District of New York denied summary judgment in Umanzor v. New York City Police Department. The court’s decision allows the disability discrimination claims brought against the New York City Police Department (NYPD) by plaintiff Randy Umanzor, who is represented by The Harman Firm, LLP, to proceed to trial.

In May 2013, Mr. Umanzor was diagnosed with multiple sclerosis (MS) after experiencing symptoms of weakness and numbness. After his diagnosis, Mr. Umanzor began a treatment regimen, including a prescribed steroid medication and Vitamin B12 injections, but continued to experience some minor MS-related symptoms, like tingling, numbness, and fatigue. Mr. Umanzor applied to join the NYPD’s Police Cadet Corps in February 2014, after being diagnosed with and treated for MS. He passed the physical examination with flying colors.

However, after Mr. Umanzor disclosed his MS diagnosis during the application process, the NYPD placed him “on review.” Mr. Umanzor provided the NYPD with his medical records—which were unintentionally incomplete—and a note from his neurologist, confirming that Mr. Umanzor was “medically stable” to join the NYPD and that his neurological exam was “normal except for mild sensory loss in the first two fingers on the left hand.” After receiving these documents, the NYPD disqualified Mr. Umanzor based on the “brief period of time that had elapsed between his MS diagnosis and the date that he applied to the Police Cadet Corps.”

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Edgar M. Rivera, Esq.

On February 26, 2018, in Smith v. North Shore-Long Island Jewish Health System, the U.S. District Court for the Southern District of New York denied a motion for summary judgment submitted by North Shore–Long Island Jewish Health System (the “Hospital”) to dismiss claims under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and New York City Human Rights Law (NYCHRL) brought by Nola Smith, a former registered nurse with the Hospital, finding triable issues based largely on evidence that the hospital strayed from following its established policy.

Throughout Ms. Smith’s tenure with the Hospital, she suffered from anxiety disorders and panic attacks. The Hospital accommodated her with a lighter work schedule than other nurses, and she took intermittent leaves of absence under the FMLA.  The Hospital, however, issued Ms. Smith multiple warnings for her use of leave, even though some of the leave was under the FMLA and therefore protected. (The Hospital generated a spreadsheet of nurses who called in sick more than three times per quarter, regardless of whether the absences were covered by approved leave under the FMLA.)  The Hospital also allegedly denied Ms. Smith’s transfer requests and did not allow her to attend career-enhancing conferences because of the number of her leaves of absence. At one point, the Hospital did allow Ms. Smith to attend a conference, but she could not find anyone to cover her shift and ended up missing the conference.  The Hospital, however, paid Ms. Smith for the conference attendance, which payment Ms. Smith assumed represented accrued paid time off.  The Hospital later discovered that Ms. Smith had not attended the conference and fired her for accepting pay for a conference she failed to attend.

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By Owen Laird

Employees across the country are protected from discrimination by three main federal laws: Title VII of the Civil Rights Act of 1963 (Title VII) protects against discrimination based on race and color, national origin, sex, and religion, while the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) protect against discrimination based on disability and age, respectively. Workers in New York City, however, enjoy the protections of one of the most expansive anti-discrimination statutes in the nation: the New York City Human Rights Law (NYCHRL), a city law that is extensive as well as adaptive to their needs.

In addition to those federally protected characteristics listed above, the NYCHRL provides additional protection against sexual orientation, gender identity, marital status, and partnership status discrimination (to name a few). Protection against sexual orientation discrimination and gender identity discrimination is essential as these characteristics are not protected by other statutory regimes, and New Yorkers cannot rely on federal laws to provide this security.

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This Monday, November 13, 2017, the U.S. District Court for the Northern District of Illinois granted the defendant’s motion for summary judgment in Richardson v. Chicago Transit Authority, in which plaintiff Mark Richardson alleged that his former employer, the Chicago Transit Authority (CTA), had violated the Americans with Disabilities Act (ADA) by terminating his employment because he was obese. The court held that, if not caused by an underlying physiological disorder or health condition, obesity in and of itself does not qualify as a disability under the ADA. As a result, Richardson was unable to show that he was disabled within the meaning of the ADA, and his ADA claim was dismissed.

Richardson began working for the CTA as a bus driver in 1999. In 2010, after Richardson took an extended medical leave, the CTA required him to undergo a medical exam and safety assessment before returning to work. At the time of the medical evaluation, Richardson weighed 594 pounds and, according to standardized height and weight medical guidelines, had a BMI of 82.8, meaning that he was medically considered to be “suffering from ‘extreme obesity.’” During the safety assessment, the CTA found that Richardson’s weight prevented him from complying with various CTA safety regulations; for example, Richardson could not perform hand-over-hand turning or stop “cross-pedaling”—having part of his foot on the gas and brake pedals at the same time—because of his size. The CTA later terminated Richardson’s employment, stating in a memo, “Based on the Bus Instructors [sic] observations and findings, the limited space in the driver’s area and the manufacturer [maximum allowable weight] requirements, it would unsafe for Bus Operator Richardson to operate any CTA bus at this time.”

After his termination, Richardson brought suit against the CTA in Illinois federal court, alleging that the CTA had violated the ADA by terminating his employment because of his obesity. After the CTA unsuccessfully moved to dismiss last year, Richardson moved for partial summary judgment on the issue of whether his obesity qualified as a disability under the ADA, and the CTA cross-moved for summary judgment on the grounds that Richardson could not establish that the CTA regarded him as disabled, as required to sustain his discrimination claim. The court denied Richardson’s motion and granted the CTA’s, dismissing Richardson’s claims.

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By Edgar M. Rivera, Esq.

For those who follow The Harman Firm Blog, you may recall our article “Second Circuit Addresses Alcoholism Perceived Disability Claims Under NYCHRL,” in which we reported that the Second Circuit in Makinen v. City of New York certified the question of whether §§ 8-102(16)(c) and 8-107(1)(a) of the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism. Section 8-107(1)(a) prohibits discrimination based an actual or perceived disability. But in the case of alcoholism, § 8-102(16)(c) limits the applicability of the term “disability” to cover only employees who are recovering or have recovered from alcohol use disorder and are currently free from abuse. On October 17, 2017, the Court of Appeals of New York answered the certified question in the affirmative.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years and, during that time, were falsely accused of abusing alcohol by their respective former partners. Ms. Nardini’s former partner—also the father of her daughter—accused Ms. Nardini of abusing alcohol in the midst of a tumultuous breakup and ongoing custody battle, which led the NYPD to refer Ms. Nardini to its Counseling Services Unit, where she was diagnosed as suffering from alcohol abuse. She accepted treatment only under threat of suspension. Ms. Makinen was similarly referred to the NYPD’s Counseling Services Unit while embroiled in a custody dispute with her former husband. On multiple occasions, Ms. Makinen’s former husband and his family members alleged that Ms. Makinen drank excessively, drove while drunk, and abused her children. The Counseling Services Unit diagnosed Ms. Makinen—like Ms. Nardini—with alcohol dependence, and Ms. Makinen reluctantly agreed to attend a four-week inpatient rehabilitative treatment program to avoid disciplinary actions.  It is undisputed, however, that neither plaintiff was actually an alcoholic.

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Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

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The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss Kate Lynn Blatt’s gender and disability discrimination claims in Blatt v. Cabela’s Retail, Inc. Blatt, a transgender woman, brought suit against her former employer under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), alleging that Cabela’s had discriminated against her based on her gender identity and her diagnosis of gender dysphoria.

Being transgender does not necessarily involve a diagnosis of gender dysphoria. Whereas a transgender person is someone whose gender identity differs from the sex that they were assigned at birth, gender dysphoria is a condition recognized by the American Psychological Association (APA), characterized by a “marked difference between [an individual’s] expressed/experienced gender and the gender others would assign [them],” which is present for at least six months and “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

As the APA points out, being transgender or gender nonconforming is not a mental disorder, and since “[m]any transgender people do not experience their gender as distressing or disabling,” not all transgender people are diagnosed with gender dysphoria. Rather, gender dysphoria is characterized by gender identity–related distress, anxiety, and depression: “The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.” Treatments for gender dysphoria are focused on helping transgender people access the resources they need to transition, such as “counseling, hormone therapy, medical procedures and the social support.”

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Harrison Paige

On April 4, 2017, in Vasquez v. Smith’s Food & Drug Centers, Inc., the U.S. District Court for the District of Arizona denied summary judgment on Juanita Vasquez’s disability discrimination and retaliation claims under the Americans with Disabilities Act (“ADA”). Vasquez alleged that that Smith’s Food & Drug Centers (“Smith’s”) had discriminated against her based on her disability by failing to accommodate her fibromyalgia and terminating her for her use of a previously approved accommodation. The court found that disputes of material fact remained which required that the case proceed to trial.

In 2009, Vasquez, a 17–year Smith’s employee, was diagnosed with fibromyalgia, a chronic condition which causes musculoskeletal pain, fatigue, disordered sleep, and memory and mood problems. Vasquez’s primary care physician completed a “Medical Accommodation Questionnaire” to submit to Smith’s after her diagnosis, stating that Vasquez could not stand for more than two hours, lift over ten pounds, or bend and stoop frequently. These restrictions disqualified Vasquez from working in certain positions at Smith’s, such as cashier roles, but Frank Orozco, the store manager at Vasquez’s location at the time, assigned her to work as a courtesy clerk and administrative secretary to accommodate her disability-related limitations.

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By Shelby Krzastek and

On May 17, 2016, the Medical Marijuana Act (MMA) took effect in Pennsylvania. The MMA allows patients with certain serious medical conditions—including HIV/AIDS, autism, cancer, and post-traumatic stress disorder—to use marijuana in pill, oil, vapor, liquid, tincture, or topical form to treat their symptoms. Once the MMA is fully implemented in early 2018, Pennsylvania residents with an approved medical condition will be able to apply for a medical marijuana ID card issued by the Pennsylvania Department of Health, which will allow them to legally obtain marijuana for medical use. While the MMA has received praise from many Pennsylvania residents, the act also creates new challenges for employees who become certified to use medical marijuana under the MMA.

Although a growing number of states have legalized marijuana use, marijuana remains illegal under federal law, where it is classified as a Schedule I controlled substance under the Controlled Substances Act. Because marijuana is illegal under federal law, employers are not required to allow employees to use medical marijuana as a reasonable accommodation under the Americans with Disabilities Act. In addition, workplaces that are federally mandated to be drug-free—such as federal contractors and certain safety-sensitive industries—require employees to report positive marijuana test results, even if an employee’s use of marijuana is for medical purposes. As a result, if an employee tests positive for marijuana use, the employer may terminate the employee for failing to comply with drug-free workplace policies.

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