Articles Posted in Disability Discrimination

The holiday season means many different things to people: family, friends, food, a general sense of merriment, and so on. It also means that many employers will host holiday parties for their employees, managers, executives, and perhaps clients and customers. The “office holiday party” has a reputation, largely thanks to movies and television, as an unabashedly wild event free from customary rules and restrictions. It is our duty as New York City employment attorneys to remind everyone that the rules still apply, however wild the party might be. Harassment on the basis of any protected category is unlawful. We believe that holiday parties should be fun for everybody, meaning that the fun should never come at anyone’s expense.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, race, color, religion, and national origin. Other federal statutes prohibit age and disability discrimination. The Equal Employment Opportunity Commission (EEOC) has determined that this includes harassment of any employee based on these factors, whether it comes from someone in a supervisory position or not. An employer may be liable in either situation if they are aware of the harassment and fail to make reasonable efforts to address it. The New York City Human Rights Law (NYCHRL) protects a much broader range of categories than Title VII, including sexual orientation and gender identity.

The EEOC has stated that isolated incidents, unless they are particularly severe, do not constitute violations of Title VII or other statutes. This generally applies to violations of the NYCHRL as well. Multiple acts of harassment become a violation of antidiscrimination law when they create a hostile work environment, or otherwise interfere with an employee’s ability to do their jobs.
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Pregnancy discrimination can take a number of different forms. When deciding which statutes to cite in a claim for New York pregnancy discrimination, employment attorneys must consider the types of discrimination covered by each law. Federal antidiscrimination law defines discrimination on the basis of sex to include discrimination based on pregnancy, childbirth, and related medical conditions, but this only addresses adverse employment actions like termination or refusal to hire. New York state and city law identify pregnancy as a distinct protected category, and also require reasonable accommodations for employees who are pregnant or have recently given birth. A lawsuit filed this summer in a New York state court alleges that an employer failed to provide reasonable accommodations in violation of the New York Pregnant Workers Fairness Act (PWFA). Hoover, et al v. Wal-Mart Associates, Inc., et al, No. 18-44970, complaint (N.Y. Sup. Ct., Orleans Cty., Jul. 24, 2018).

The PWFA amended the New York State Human Rights Law to state that an employer commits an “unlawful discriminatory practice” when they “refuse to provide reasonable accommodations to [an employee’s]…pregnancy-related conditions.” N.Y. Exec. L. § 296(3)(a). State regulations prohibit employers from asking about the need for accommodations prior to hiring an individual. They also require employers “to move forward to consider accommodation once the need for accommodation is known or requested.” 9 NYCRR § 466.11(j)(4). The New York State Division of Human Rights describes this as an “interactive process” between the employer and the employee.

The plaintiffs in the Hoover case allege that their former employer’s attendance policy violated their rights under the PWFA by failing to accommodate their need to take time off from work for conditions related to pregnancy. The defendant’s policy assigns points to employees for work absences without prior approval. Accruing a certain number of points results in termination. While the policy identifies numerous authorized purposes for absences, “absences needed because of pregnancy-related conditions do not appear on” the list. Hoover, complaint at 5.
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Pregnancy discrimination in employment violates New York City’s antidiscrimination law, New York state law, and federal law. This means that employers commit an unlawful employment practice when they refuse to hire someone, fire them, force them to take unpaid leave, deny them promotions or other opportunities, or subject them to other disparate treatment because they are pregnant, have recently given birth, or are dealing with a medical condition related to either pregnancy or childbirth. These antidiscrimination laws also, to greatly varying degrees, require employers to make “reasonable accommodations” related to pregnancy and childbirth. These might include extra bathroom breaks, lifting restrictions, and opportunities to pump breast milk during breaks. A new law passed by the New York City Council, Int. No. 804-2015-A, will further protect workers’ rights by requiring employers to engage in “cooperative dialogue” with any employee who requests an accommodation because of pregnancy, childbirth, and other conditions or situations. The law is set to take effect in October 2018.

Federal law prohibits employment discrimination because of sex and multiple other factors, and includes “pregnancy, childbirth, or related medical conditions” in its definition of “because of sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). State law includes sex and “familial status” as protected categories, and defines “familial status” to include being pregnant and having one or more children. N.Y. Exec. L. §§ 292(26)(a), 296(1)(a). The New York City Human Rights Law (NYCHRL) does not specifically identify pregnancy discrimination as a distinct protected category or as a form of sex discrimination, but it makes reference to “provision[s] of law relating to sex discrimination or pregnancy.” N.Y.C. Admin. Code § 8-107(22)(c).

Prohibitions against pregnancy discrimination, generally meaning disparate treatment of pregnant employees and those who have recently given birth, do not necessarily include a duty to provide reasonable accommodations. The fact that an employer cannot fire an employee for becoming pregnant might not mean that the employer must allow that employee extra restroom breaks. State and city law in New York City specifically include requirements for reasonable accommodations, making it an unlawful employment practice to refuse to provide accommodations that will enable an employee to do their job. N.Y. Exec. L. § 296(3), N.Y.C. Admin. Code § 8-107(22)(a). Federal law does not specifically mention accommodations for pregnancy, childbirth, or related conditions, but the Americans with Disabilities Act (ADA) of 1990, as amended by the ADA Amendments Act of 2008, covers some conditions associated with pregnancy and childbirth.
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Anti-discrimination laws in New York and around the country prohibit discrimination because of pregnancy, childbirth, and conditions directly related to either. The laws that address discrimination, such as Title VII of the Civil Rights Act of 1964, do not necessarily require employers to provide that person with reasonable accommodations, such as light duty, more frequent restroom breaks, or the opportunity to pump breast milk. Both the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL) address reasonable accommodations, but many state and local statutes do not. The Americans with Disabilities Act (ADA) of 1990, as amended about 10 years ago, requires accommodations for some conditions related to pregnancy and childbirth. The plaintiffs in a Kentucky pregnancy discrimination lawsuit, which resulted in a settlement several years ago, are now advocating for changes in their state’s law regarding accommodations for pregnant employees, which would then more closely resemble New York pregnancy discrimination laws.

Title VII, as amended by the Pregnancy Discrimination Act of 1978, prohibits employment discrimination on the basis of sex, and it includes “pregnancy, childbirth, or related medical conditions” in its definition of “on the basis of sex.” 42 U.S.C. §§ 2000e(k), 2000e-2(a)(1). It makes no mention of reasonable accommodations. Both the NYSHRL and NYCHRL state that an employer commits an “unlawful employment practice” by failing to provide a reasonable accommodation. N.Y. Exec. L. § 296(3), N.Y.C. Admin. Code § 8-107(22). The NYSHRL defines a “reasonable accommodation” as something that allows an employee “to perform in a reasonable manner the activities involved in the job.” N.Y. Exec. L. § 292.

Title I of the ADA does not specifically identify pregnancy as a “disability.” Changes to the law in the ADA Amendments Act (ADAAA) of 2008 have led the Equal Employment Opportunity Commission (EEOC) to determine that pregnant workers may be entitled to reasonable accommodations under the ADA. The agency has also found that the ADAAA requires it to construe “the definition of ‘disability’…broadly in favor of expansive coverage.” 29 C.F.R. § 1630.1(c)(4).

A 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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Employment 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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The 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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The 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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A 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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Title 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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