Articles Posted in ADA

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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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Edgar M. Rivera, Esq.

People suffering from a range of physical and mental disabilities frequently rely on companion animals, most commonly dogs, to assist them as they go about their day.  Most employers, however, prohibit employees from bringing animals to work, creating a tension between employer and employee based on a misunderstanding about disability.  As part of our series on mental health, this blog covers a case involving a companion animal for someone suffering from depression and post-traumatic-stress disorder (PTSD).

Joyce Riggs worked for the Bennett County Hospital and Nursing Home (the “Hospital”) from March 2006 until her termination in March 2015.  Between 2006 and 2012, Joyce brought a companion animal to work with her to help manage her depression and PTSD.  When Ethel Martin became CEO in 2012, however, the Hospital adopted a more restrictive policy regarding pets in the workplace.  Joyce informally requested permission to continue bringing her companion animal to work, but the Hospital denied her request.

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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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