Articles Posted in Disability Discrimination

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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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Jessica Ellis

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.

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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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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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