Articles Posted in Disability Discrimination

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At present, medical marijuana may be used legally in 33 states and D.C., and recreational marijuana in 11 states and D.C.  Marijuana is illegal for any purpose in 17 states and remains illegal under federal law.  Many employers deny prospective employees’ employment and fire current employees for marijuana use—whether or not their use is actually illegal—based on drug test results.  For employers attempting to discourage illegal drug use, the use of marijuana drug test results to make employment decisions is problematic due to shortcomings in drug testing, making it nearly impossible to determine whether marijuana use was legal.

According to the annual Quest Diagnostics Drug Testing Index, the number of workers and job applicants who tested positive for marijuana climbed 10 percent from 2018 to 2019.  Drug tests, however, are highly unreliable: one could fail a drug test even without the recent use of marijuana.  Urine tests for marijuana metabolites can only show recent marijuana use, not intoxication or impairment.  This is because of the time required between smoking and your body breaking down THC (tetrahydrocannabinol), the active ingredient of marijuana, to the metabolites that are eliminated in the urine.  THC remains detectable in bodily fluids for up to 90 days after last use.  Hence, the current technology to test marijuana levels does not reliably show if an individual is intoxicated or was intoxicated at work.  As marijuana is legal in many states, an employer cannot tell—based solely on an employee’s having failed to a drug test—whether the marijuana use was lawful through a urine test.  However, because many employers have a zero tolerance for drug use, most workplaces use urine tests for any recent use of drugs.

Fortunately, some states have changed their laws in recognition of the unreliability in marijuana testing.  In Nevada, starting in 2020, employers cannot refuse to hire a job applicant for failing a marijuana test, with limited exceptions.  Similarly, in New York City, many employers will no longer be able to test job applicants for marijuana or THC.  The new mandate will take effect in 2020.  In Arizona, Arkansas, Delaware, Minnesota, and Rhode Island, employers may not refuse to hire or otherwise penalize a person based solely upon the person’s status as a medical marijuana patient or for testing positive for marijuana on a drug test.  However, the federal government, at present, does not limit the right of private companies to perform drug testing on their employees.

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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 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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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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While the workplace has considerably evolved within the last decades to more openly recognize the diverse needs of employees, there still remains a large stigma around workers’ mental wellbeing. Statistics reveal striking contrast between the ubiquity of mental health issues and how few people seek treatment. In the United States, one in five adults, or 43.8 million people, experience a mental malady within a year, yet the long-held stigma about mental health keeps more than 50 percent of workers from seeking employee-covered care to support their physiological wellness. (One Medical, 2017) Employees largely do not disclose mental health issues, reportedly, for fear of job loss, lack of promotion, eventual replacement or judgement from colleagues.  As a result, approximately $27 billion dollars are lost annually to mental health-related absences in the workplace. (Office Vibe, 2014)

According to experts like Mary Deacon, who heads one of Canada’s largest mental health initiatives, the corporate environment has suffered from creating an “artificial separation” between mental and physical health. (Concordia, 2013) Until now, it has been more acceptable within the professional environment to recognize employees with physical disabilities or illnesses. Deacon expresses, however, that raising awareness around mental health is now gaining as much traction as cancer and AIDS-awareness movements garnered in the last decades, and rightfully so.  With over 80 percent of people working more than 48 hours weekly and with 50 percent of workers reporting they experience extreme stress at work, places of business must consider how to address the topic of mental health on multiple levels. (Office Vibe, 2014)

Companies can support whole-person health through the design and management of their company culture, choice of health care policies and employee benefits. Team leaders can initiate conversations that foster and promote a healthy work place. Bringing the subject of mental wellness to light can be a useful tool for promoting a sense of security within the job environment for workers. Initiatives can be taken to bring in Employee Assistant Professionals to speak to employees about mental health resources and the effectiveness of getting support to ease stress. Leadership training can facilitate efficient communication within the workplace and can be a useful tool to support greater wellness at work and improve colleague and client relations.

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On August 10, 2018, in Cotto, Jr. v. Ardagh Glass Packing, Inc., the United States District Court of New Jersey held that New Jersey law does not require private employers to waive drug tests as an accommodation for employees using medicinal marijuana.

In 2007, Plaintiff Daniel Cotto, Jr. was prescribed medicinal marijuana to treat a neck and back injury, which he disclosed to Ardagh Glass Packing, Inc. (“Ardagh”) when he was hired as a forklift driver.  In 2016, Mr. Cotto hit his head on a forklift, and Ardagh asked him to take a drug test before returning to work.  As a user of medical marijuana, Mr. Cotto told his employer that he would not be able to pass the test.  Ardagh, however, told Mr. Cotto he could not continue working there unless he tested negative for marijuana. Consequently, on December 1, 2016, Ardagh suspended Mr. Cotto for an indefinite period of time.

Mr. Cotto claimed that Ardagh discriminated against him based on his disability. He argued that the decriminalization of medicinal marijuana under the New Jersey Compassionate Use Medicinal Marijuana Act (CUMMA), together with the New Jersey Law Against Discrimination (LAD), required employers to waive the requirement of passing a drug test for a medical marijuana user. The Court disagreed.

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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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