September 15th, 2011 by BMBB Law
On September 8, 2011, Beranbaum Menken filed a disability discrimination suit alleging that Graham Windham, a New York-based foster care placement agency, discriminated against one of its employees because she suffers from post-traumatic stress disorder. The employee had performed outstanding work for the agency for years, overseeing the successful placement of countless children in foster homes throughout the city and earning accolades from the city of New York and Graham Windham itself. However, the complaint alleges that once her disability was discovered, her employer no longer believed that she was capable of performing her job, resulting in severe harassment, culminating in her termination. Under federal and local laws, such stereotyped assumptions about people with disabilities cannot legally form the basis for adverse employment actions. The suit therefore seeks compensation for violations of the Americans With Disabilities Act, as well as state and local human rights laws.
February 11th, 2011 by BMBB Law
Beranbaum Menken successfully vindicated the rights of a clinical psychologist who was fired by the New York City Health and Hospitals Corporation (HHC) because of his visual impairment, despite his 20 years of devoted service. Our client, who is legally blind, was well-liked by his patients, respected by his peers and admired by his students as an excellent and empathic clinician. Unfortunately, after abruptly discontinuing his reasonable accommodations, HHC trumped up allegations of poor performance and fired him because of his disability. Beranbaum Menken partner Bruce Menken represented the psychologist in a labor arbitration and, after an arbitration that lasted 8 days, the arbitrator ordered HHC to pay our client full back pay and benefits and reinstate him to his job. Rather than reinstate him, HHC agreed in late December 2010 to pay $1,390,000 in full settlement of his claims.
March 26th, 2010 by BMBB Law
Beranbaum Menken LLP is representing Emilie Morse, a former Inflight Supervisor with JetBlue Airways, in federal court in a disability discrimination lawsuit. JetBlue fired Morse in June 2006 pursuant to a policy of administratively terminating any employee who was out on leave for 52 weeks over a two-year period, regardless of whether the employee was a qualified individual with a disability, protected by the ADA. Morse’s Inflight Supervisor job was primarily administrative job, with occasional flying. To reasonably accommodate her disability, Morse asked to continue working as an Inflight Supervisor in an administrative, non-flying capacity, or, alternatively, to be re-assigned to another position, which was vacant and did not involve flying. JetBlue denied Morse’s request for a reasonable accommodation, and instead fired her at the end of the 52 weeks’ leave.
The firm filed with the U.S. Equal Employment Opportunity Commission a charge of discrimination on behalf of Morse and similarly situated disabled current and former JetBlue employees. We alleged that JetBlue’s practice and policy of terminating employees who had taken 52 weeks of leave, regardless of whether they had a qualifying disability, violated the ADA. In a Determination, dated November 6, 2008, the EEOC found that JetBlue, violated the ADA by failing to engage with Morse in an interactive process to determine a reasonable accommodation; failing to provide Morse with a reasonable accommodation; and terminating her employment pursuant to a discriminatory leave policy. The EEOC also determined that JetBlue’s leave policy violated the ADA:
The record demonstrates that [JetBlue] has maintained an inflexible 52-week maximum leave policy … in violation of the ADA. Under this policy, [JetBlue] does not accord qualified individuals with disabilities an individualized assessment of whether the employee requires additional medical leave and/or if the individual could return to the same position or a vacant position, with or without reasonable accommodation. Accordingly, [JetBlue] has maintained a policy that creates a pattern or practice of denying reasonable accommodation to, and discriminating against a nationwide class of individuals with disabilities in violation of the ADA….
The EEOC entered into a Conciliation Agreement with JetBlue. The airline agreed to change its leave policy so as to individually assess employees approaching the end of their 52 weeks of leave to determine if a reasonable accommodation is appropriate. The modified policy states:
If a Crewmember is unable to return to his/her job at the end of 52 weeks and indicates a desire to do so, JetBlue will evaluate whether is its appropriate to provide the Crewmember with a reasonable accommodation, such as additional amount of leave, a modification to his/her job duties, or consideration for a vacant position for which he/she is qualified.
However, the parties were not able to settle Morse’s claim for damages. As a result, we have filed a lawsuit in the U.S. District Court for the Eastern District of New York, seeking relief for Morse’s discriminatory discharge. Discovery in the case is just beginning. Morse was the catalyst to getting JetBlue to change its discriminatory leave policy, and now we are seeking a just resolution for her.
November 26th, 2008 by BMBB Law
The Americans with Disabilities Act of 1990 was a failed law. Its stated purpose was “to provide consistent, enforceable standards addressing discrimination against individuals with disabilities.” However, the ADA resulted in years of litigation that, rather than clarifying standards for employers and disabled to live by, was mired down in defining what is meant by “disability” and who is eligible for the statute’s protection. Worse, the Supreme Court interpreted “disability” very narrowly, which resulted in a large number of disabled employees not being covered by the law’s anti-discrimination protections.
On September 26, 2008, Congress enacted the ADA Amendment Act of 2008 (“ADAAA”) in order to breathe life into the ADA. The ADAAA’s purpose is to carry out the ADA’s original goal of providing “a clear and comprehensive national mandate for the elimination of discrimination” against the disabled and to restore the broad protections that Congress intended to give disabled individuals when it enacted the ADA.
The ADA defines “disability” as:
(1) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(2) a record or such impairment; or
(3) being regarded as having such an impairment.
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that mitigating measures – such as medication or prosthetic limbs – must be taken into account when determining whether an individual was substantially limited in a major life activity. The Court’s ruling contradicted the understandings of the Equal Employment Opportunity Commission, the U.S. Departments of Justice and Transportation, and with how the ADA’s predecessor statute, the Rehabilitation Act, had been interpreted. The holding in Sutton led to the dismissal of scores of cases because, once mitigating measures were taken into account, the disabled employee was considered insufficiently disabled to be covered by the ADA.
In another decision, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court set a very high burden for employees claiming a “disability.” The Court held that the terms “substantially limits” and “major life activity” must be “interpreted strictly” to create a “demanding standard” for individuals seeking to qualify as disabled. In addition, the Court effectively redefined “substantially limits” to mean “prevents or severely restricts.” In Toyota, the Supreme Court created an additional requirement for employees with manual restrictions nowhere found in the ADA itself. The Court also held that an employee who claims that his impairment restricts manual activities must show that those activities are “of central importance to most people’s daily lives,” such as tending to personal hygiene or doing personal and household chores.
The ADAAA repudiates Sutton and Toyota . The ADAAA provides those decisions “created an inappropriately high level of limitation necessary to obtain coverage under the AD[A].” Under the ADAAA, courts must define disability “in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” The ADAAA discards Sutton’s requirement that mitigating measures be taken into account when determining a disability. The statute also rejects Toyota’s rulings that proving one’s disability involves a “demanding standard,” and that “substantially limits” means “prevents or severely restricts.”
In order to expand the coverage of the statute’s anti-discrimination provisions, the ADAAA also provides that episodic impairments (like epilepsy) or impairments in remission (like cancer) should be treated as disabilities, so long as they are substantially limiting when active. Previously, courts routinely dismissed ADA claims because the employee’s condition was only episodic. The statute also expands the meaning of “major life activity” to include such activities as eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating. Of critical importance, the ADAAA provides that “major life activities” include “major bodily functions,” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, brain, respiratory, circulatory, endocrine, and reproductive functions.” That means that if a disabled employee shows that her medical impairment, without medication, substantially limits one of these bodily functions, she does not have to prove that she is unable to perform a daily life activity, such as walking or thinking.
The ADAAA also makes it easier to prove that an employee was “regarded as” disabled. Sutton held that an employee had to show both that the employer regarded him as having an impairment and that it believed the impairment substantially limited a major life activity. The ADAAA, instead, provides that an employee is “regarded as” disabled so long as the employer perceived him as having an impairment, regardless of whether the employer believed the impairment to be substantially limiting.
The ADAAA promises to resuscitate a statute rendered stillborn by restrictive court rulings. It is hoped that the courts, and most importantly the Supreme Court, are now set on the right track, and will no longer interpret the statute in ways that excludes disabled employees clearly meant to be covered by the ADA.
For a fuller discussion of the changes made to the ADA by the ADAAA, and the impact the changes will have on the law, see my article by the same title in the “Cases and Publications” section of the BMBBLaw website.