Articles Posted in Disability Discrimination

New York CityA former employee of a New York City medical marijuana company is suing the company for multiple causes of action under state and city laws. JP v. TO, et al., No. 158407/2016, complaint (N.Y. Sup. Ct., N.Y. Cty., Oct. 6, 2016). The plaintiff alleges that she was subjected to sexual harassment, that she faced discrimination based on her religion and her health status, and that the company terminated her in retaliation for complaining about these acts. In addition to the business entity, the defendants include several individual owners, directors, and officers of the company.

Laws at the city and state levels in New York City prohibit employment discrimination on a wide range of bases, including sex, religion, and disability. Under both the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), sexual harassment is considered to be unlawful sex discrimination. Both statutes define “disability” in this context to include “a physical, mental or medical impairment,” and the NYCHRL also adds psychological impairments to the list. N.Y. Exec. L. § 292(21), N.Y.C. Admin. Code. § 8-102(16). They both generally define an “impairment” as arising from a physiological or neurological condition, as well as a psychological or mental condition in the case of the NYCHRL.

The plaintiff worked for the defendant as an “in-house consultant and project manager.” JP, complaint at 3. She describes herself as a Roman Catholic and a “female survivor of cancerous PASH,” a type of breast cancer. Her condition “cause[s] her a large degree of pain and discomfort” and “requir[es] her to take prescribed painkillers and muscle relaxers periodically.” Id. at 4. Her job responsibilities, according to her complaint, included licensing and compliance with state medical cannabis laws, project management, and various business planning and development activities. She alleges a variety of actions that violated state and federal laws.

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OpenClipartVectors [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayEmployment statutes at the federal, state, and city levels in New York City protect workers against certain types of discrimination related to family responsibilities. These laws protect employees from adverse actions by employers, but they do not address the conflict between needing to care for a family member and needing to go to work to earn a living. The U.S. lags far behind most of the world’s countries when it comes to paid family leave. The New York State Assembly passed a bill in February 2016 that would provide paid family leave through the state’s disability insurance program, but its companion bill is still pending in the Senate.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits employers from discriminating on the basis of pregnancy, childbirth, and certain medical conditions related to either. 42 U.S.C. §§ 2000e(k), 2000e-2(a). The New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) contain similar provisions. N.Y. Exec. L. § 296(1)(a), N.Y.C. Admin. Code § 8-107(22). Recent amendments to the NYCHRL will also protect workers with caregiving responsibilities, such as for a minor child or a sick or disabled relative, from employment discrimination.

None of the above-referenced laws, however, provide for paid leave for employees due to pregnancy, childbirth, or caregiver responsibilities. The Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., requires unpaid leave for qualified employees of covered employers, but that is as far as U.S. federal law goes.

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By NPS Graphics, put together by User:Wcommons (http://www.nps.gov/hfc/carto/map-symbols.htm) [Public domain or Public domain], via Wikimedia CommonsThe Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq., has brought significant changes in the 25 years since it became law. It requires wheelchair ramps and other accommodations in public buildings and other locations, and it protects employees of covered employers from discrimination on the basis of disabilities. It also requires employers to provide reasonable accommodations to disabled employees. For most of the ADA’s history, pregnancy has not been considered a “disability” within the statute’s meaning. The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII of the Civil Rights Act of 1964 to prohibit pregnancy discrimination, but it does not expressly require reasonable accommodations for pregnant workers or those who recently gave birth. A 2008 law amending the ADA expanded the criteria for disabilities and impairments, and opened the door to certain pregnancy-related conditions qualifying for ADA protection.

Title I of the ADA prohibits discrimination against disabled employees. It also requires reasonable accommodations, defined to include modifications to an employee’s job duties or work schedule, assignment to a different position, or use of specialized equipment appropriate to the individual impairment. 42 U.S.C. § 12111(9). Title II prohibits disability discrimination in government buildings and services, including public transportation. Title III applies to “public accommodations” in private businesses that serve the public, such as hotels, restaurants, and stores. Finally, Title IV requires telecommunications companies to provide access to hearing- and speech-impaired customers.

The ADA primarily defines a “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Disputes may arise as to whether a condition is an “impairment,” whether it “substantially limits” a person, and whether the limitation is a “major life activity.” The ADA also allows claims for discrimination based on “perceived” impairments, or for “being regarded as having such an impairment.” 42 U.S.C. §§ 12102(1)(C), (3).

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CC-BY-SA-3.0/Matt H. Wade at Wikipedia, via Wikimedia CommonsThe New York Legislature passed two bills in the first half of 2015 that amended the New York State Human Rights Law (NYSHRL) to provide additional protections for pregnant employees and employees who have experienced sexual harassment in the workplace. One bill expands the scope of the NYSHRL’s prohibition on sexual harassment to include all employers in the state, regardless of size. The other bill addresses pregnant workers’ need for reasonable accommodations during pregnancy and after childbirth. We are hopeful that these bills will help New York City employees assert their rights against workplace harassment and discrimination.

Sexual Harassment

Many employment statutes only apply to employers who exceed a threshold number of employees. The NYSHRL defines an “employer” as a person, company, or other organization with four or more employees. N.Y. Exec. L. § 292(5). According to Assemblywoman Sandy Galef, D-Ossining, over 60 percent of private employers in the state have fewer than four employees. Those employees are effectively barred from stating claims under the NYSHRL.

One of the new bills, A.5360/S.2, amends the NYSHRL’s definition of “employer” to state that the four-employee threshold does not apply in claims for sexual harassment, which is defined as a form of discrimination based on sex. Assemblywoman Galef was the sponsor of A.5360. The bill opens the possibility of relief in sexual harassment claims under the NYSHRL for employees of smaller New York businesses. It does not change the definition of “employer” for any other type of claim.

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By Verdy p (Own work) [Public domain], via Wikimedia CommonsA lawsuit filed in a New York state court in Manhattan includes allegations of sexual harassment, but in a rather unusual way. The plaintiff in Hayblum v. Life Alert Emergency Response, Inc., et al., No. 154464/2015, complaint (N.Y. Sup. Ct., N.Y. Co., May 6, 2015), does not claim to have personally been the victim of sexual harassment. Instead, he claims that the defendants unlawfully retaliated against him for reporting alleged sexual harassment in the workplace. The lawsuit asserts causes of action under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).

The defendant produces and operates a medical alert system that enables elderly and disabled users to signal for emergency help at all hours. The company is perhaps best known for its television commercials using the line “I’ve fallen, and I can’t get up!” The plaintiff, according to his complaint, began working for the defendant as a sales representative in its Manhattan office in October 2002. He became a sales manager in April 2006, and he held that position until November 2014.

The plaintiff alleges that he observed “rampant sexual harassment” in the defendant’s Manhattan office. Hayblum, complaint at 8. He claims that the company’s general manager, who was also a director and a vice president, routinely sexually harassed female employees by offering “promotions, perquisites, calls-ins [sic], and leads.” Id. Employees who refused his advances were, the plaintiff claims, denied work opportunities, terminated, or “treated so poorly that they were driven to quit.” Id. The plaintiff’s wife, who also worked for the defendant, was allegedly a “prime target” for harassment. Id.

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323286273_0181f4b061_z.jpgTitle VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA) of 1978, prohibits discrimination in employment on the basis of pregnancy, childbirth, and related medical conditions. This applies to obvious forms of discrimination like firing, suspending, or refusing to hire someone because of pregnancy, but the PDA’s application to more subtle forms of discrimination is not as clear. Does the PDA require an employer to provide a reasonable accommodation to a pregnant employee when it already accommodates employees with similar limitations caused by other conditions? The Supreme Court will take up this question in its upcoming term.

The underlying lawsuit involved a claim by a pregnant employee of United Parcel Service (UPS) that the company’s disability policies were discriminatory. After the plaintiff took a leave of absence for her pregnancy, the company would not allow her to return to work as long as she had a lifting restriction. The company allowed accommodations for three types of conditions: on-the-job injuries requiring light duty, disabilities expressly covered by the Americans with Disabilities Act (ADA) of 1990, and injuries or conditions that resulted in loss of commercial vehicle certification from the Department of Transportation. The plaintiff claimed that reasonable accommodations could have been made available for her.

The Fourth Circuit Court of Appeals affirmed an order of summary judgment in favor of the employer. Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013). It first held that the plaintiff failed to establish that her pregnancy was a “disability” within the meaning of the ADA. The court then held that she had not demonstrated that the defendant’s failure to provide reasonable accommodations for pregnancy-related work restrictions was “discrimination” under the PDA. It compared the plaintiff’s pregnancy to “an off-the-job injury or illness,” id. at 448, which would not entitle an employee to the same accommodation as an injury suffered while at work.
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due-216869_640.jpgThe Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating allegations of discrimination and other unlawful employment practices, issued a revised Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Enforcement Guidance”) on July 14, 2014. This is the first comprehensive update that the agency has done with regard to pregnancy discrimination since 1983. The revised document discusses the restrictions on employers under the Pregnancy Discrimination Act of 1978 (PDA), which amended Title VII of the Civil Rights Act of 1964 to include pregnancy discrimination as a type of unlawful sex or gender discrimination. It also discusses how the Americans with Disabilities Act of 1990 (ADA) and the Americans with Disabilities Amendments Act of 2008 (ADAAA), relate to pregnancy discrimination.

Title VII, as amended by the PDA, prohibits employment discrimination, which can include disparate treatment, harassment, and denial of reasonable accommodations, based on pregnancy and medical conditions related to pregnancy. The Enforcement Guidance notes that this applies not only to current pregnancies, but also to both past and potential pregnancies. An employer may not discriminate based on an employee’s past pregnancy or pregnancy-related issues, nor may they discriminate based on factors like an employee’s intention to become pregnant, use of fertility treatments, use of contraception, or any actual or perceived risks to the employee of becoming pregnant.

Discrimination based on pregnancy could be obvious, such as when an employer fires or refuses to hire someone because she became pregnant, but it could also be much more subtle. Disparate treatment in assignment of light duty, breaks, and paid or unpaid leave could constitute pregnancy discrimination.
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rest-206892_640.jpgA bill pending in the New York Assembly would amend the New York State Human Rights Law (NYSHRL), NY Exec. Law §§ 290 et seq., to require employers to provide reasonable accommodations for pregnant workers. The New York City Human Rights Law (NYCHRL), NY Admin. Code §§ 8-101 et seq., already requires reasonable accommodations for pregnant employees, thanks to an amendment enacted by the New York City Council in late 2013. Federal law, however, does not expressly provide similar protections in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., or the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.

The Assembly bill, A1264, amends the definition of “reasonable accommodation” in the NYSHRL, NY Exec. Law § 292(21-e), to include actions taken on behalf of employees with disabilities and those with “pregnancy-related conditions.” It adds subsection 21-f to the statute, which defines “pregnancy-related condition” as any medical condition associated with pregnancy or childbirth “that inhibits the exercise of a normal bodily function,” but does not prevent performing a person’s job in a reasonable capacity; and it designates pregnancy and childbirth as temporary disabilities. Refusal to provide reasonable accommodations for a pregnancy-related condition is added to the list of unlawful discriminatory practices in NY Exec. Law § 296(3)(a).

Pregnant employees frequently deal with discriminatory treatment when they ask for accommodations, such as more frequent breaks to use the restroom, lifting restrictions, or rescheduling for doctor’s appointments. Employers may refuse to provide accommodations, forcing employees to quit or put their pregnancies at risk, or they may terminate a pregnant employee for inability to perform their job duties. Without legal requirements for reasonable accommodations, such actions do not necessarily violate anti-discrimination laws.
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New_York_City_Hall.jpgA new law protecting workers from employment discrimination based on pregnancy, the Pregnant Workers Fairness Act (PWFA), took effect in New York City at the end of January 2014, and employees are already benefitting from it. A woman who was placed on unpaid leave shortly after notifying her employer of her pregnancy-related work restrictions was able to get her job back, with back pay, as one of the first tests of the new law. Anti-discrimination laws from the federal to the municipal level already prohibit pregnancy discrimination by covered employers. The new city ordinance expands those protections to require reasonable accommodations that allow pregnant employees to continue doing their jobs.

The question of accommodations for pregnant employees has posed difficulties in the past, as anti-discrimination laws primarily address employment practices that need to stop rather than actions an employer should take. Disability laws often require employers to make reasonable accommodations for certain employees, but pregnancy does not always fall within the scope of those laws.

The City Council passed the PWFA unanimously on September 24, 2013 and the mayor signed it into law on October 2. It officially took effect on January 30, 2014. The law amends the city’s definition of an “unlawful discriminatory practice” to include refusal to provide “a reasonable accommodation” to an employee for “pregnancy, childbirth, or related medical condition.” Admin. Code § 8-107(22). This protection applies if the employee needs the accommodation in order to “perform the essential requisites” of their job. The employee must have notified the employer of the pregnancy prior to requesting the accommodation.
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2008_03_20_-_Woodland_Hills_Way_at_Chase_Hills_Dr_-_Speed_tables_7A driver for United Parcel Service (UPS) in New York has complained to the Equal Employment Opportunity Commission (EEOC), alleging that her employer unlawfully discriminated against her when she was pregnant. She has the assistance of the American Civil Liberties Union (ACLU), which filed the complaint on her behalf, asserting violations of state and federal anti-discrimination law. Pregnancy discrimination remains a difficult problem, as it can involve discrimination based on gender, a temporary disability, or a combination of the two. The law relating to pregnancy discrimination as a disability is not nearly as well-settled as gender discrimination law. New York’s Governor Andrew Cuomo is currently proposing legislation that would expand protections for pregnant women in the state.

The ACLU published an account by the complainant, Julie Desantis-Mayer, in January 2013, in which she described her experience after telling her employer about her pregnancy. She states that she worked at UPS for almost a decade, beginning as a part-time employee and advancing to a full-time driver position. She claims that, prior to her pregnancy, the company allowed her to perform light-duty tasks, including after she suffered an injury on the job in January 2012. When she informed her manager of her pregnancy, however, she claims that she was told that no light-duty positions were available. Her doctor had reportedly instructed her not to lift anything heavier than twenty-five pounds, requiring a lighter-duty assignment.
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