Discrimination Laws

Can I Be Fired While On Disability Leave?

Can I be fired while I am on disability leave – what’s the deal?

Short answer – yes, but....

Can I be fired while I am on disability leave –but I’m on short term/long term disability leave?

Short and Long Term disabilities are not job protected.  But, there are cases where you may qualify for leave under the FMLA and/or the ADA.  The FMLA provides you with job protection, and the ADA protects you from discrimination on the basis of your disability.  We detail your protections under the FMLA and ADA below.

Can I be fired while I am on disability leave –isn’t it discrimination?

Not necessarily, but it might be.  There are plenty of legal reasons for an employer to fire you.  One reason may be that you are on leave indefinitely and that cannot be accommodated by the employer.  Another reason may be economic/business necessity.  Just because you were terminated and disabled/on leave is not enough – you need to prove that you were terminated because you were disabled/on leave.

The Americans with Disabilities Act (“ADA”) prohibits employment discrimination on the basis of disability (or perceived disability).  The ADA also requires the employer engage in an “interactive process” to determine whether your disability can be “reasonably accommodated.”  Sometimes, a leave of absence may be a reasonable accommodation – at a minimum, your employer is required to investigate/consider (i.e. engage in the interactive process) whether this is possible.

Ultimately, it comes down to why the employer made the decision to terminate.  If the decision is made because of your disability, it very well may be illegal.

Can I be fired while I am on disability leave –what about the FMLA?

The Family Medical Leave Act (“FMLA”) is a federal law that applies to employers that have 50 or more employees. Under the FMLA certain employees may take up to 12 weeks of unpaid leave for certain reasons, like a serious health condition.  Although FMLA is “job-protected” (meaning you should be returned to your prior or equivalent position), you can still be terminated while on FMLA if the reason is not related to the leave and is not otherwise not discriminatory.   If your employer can show that the decision to terminate is unrelated to the FMLA leave, it is legal.

I was fired while I was on disability leave - What should I do?

Call us!  Or e-mail.  We can help. 

When is it OK to Discriminate? The Bona Fide Occupational Qualification Defense

The bona fide occupational qualification (“BFOQ”) is defense that an employer can use to justify intentional discrimination in some circumstances.

For example, gender discrimination is illegal. But what about a men’s clothing designer who refuses to hire female models? Is the designer required to hire female models? Of course not. Being male is a bone fide occupational qualification for the position.

A BFOQ is a legitimate job criterion upon which employers can legally discriminate in hiring. However, to use this defense, the employer would have to show that nearly all members of the excluded class cannot perform the functions of the job. BFOQs allow discrimination based on age, national origin, and gender (sex) but not race.

Bona Fide Occupational Qualification, a Case Study – The Borgata Babes:

Not long ago, the Borgata Casino in Atlantic City, NJ came under fire for its weight limit for cocktail servers, known as “Borgata Babes.” In defending the weight limit, the Casino alleged that it was part of the appearance that being a cocktail server at Borgata entailed. The question, with respect to BFOQ is what exactly do Borgata Babes do? If they simply serve drinks, then weight has nothing to do with it. If, on the other hand, the Borgata Babes sell the glitz, glamor and sex appeal of a casino, perhaps weight can matter quite a bit.

The court agreed with the Casino, holding that the weight policy was not gender discrimination, largely because it was applied to both genders and that servers were aware of it when they were hired and affirmed that employers can legally maintain policies that require their employees to appear physically fit and "attractive."

Examples:

Age: Mandatory retirement ages for airline pilots and law enforcement for safety reasons and fitness requirements.

Gender: A manufacturer of men's clothing may lawfully advertise for male models, and acting roles that require a certain gender.

National Origin: A restaurant may only hire French chefs.

Religion: A Catholic college may require that its teaching faculty be Catholic.

Questions? Contact us.

Reasonable Accommodation Under the ADA

The Americans with Disabilities Act (ADA)  requires employers to engage in an interactive process with a disabled employee to determine whether the employer can provide a reasonable accommodation under the ADA to the disabled employee. A reasonable accommodation under the ADA requires that the employee be able to perform essential functions of a position.  Recently, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis to determine whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and has been employed by the City of New York, for ten years. McMillan’s agency has a flex-time policy, and approves tardiness under certain circumstances.  McMillan’s medication can make him sluggish, which resulted in his late arrival to work several times.  The tardiness is a function of the treatment for his condition.

Prior to 2008, McMillan’s tardiness was never a problem.  Then, in 2008, his supervisors refused to approve any more late arrivals.  McMillan requested a later start time, but was told that this was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present.  McMillan also stated that he would be willing to work through his lunch hour, but that suggestion also was rejected.

In 2009, McMillan was fined eight days’ pay for late arrivals and was ultimately suspended for 30 days without pay for his “long history of tardiness.”

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m., so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job.  On appeal, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

The Second Circuit pointed out the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away  is that a Reasonable Accommodation under the ADA may require an employer to allow for flexible working time for its employees, where such a reasonable accommodation would still enable that employee to perform the essential functions of his or her position.

Disability Discrimination in New York

Disability Discrimination in New York Unlawful Termination – Disability Discrimination

Extended Leave of Absence May Be a Reasonable Accommodation Under New York City Human Rights Law

The following post addresses a topic of disability discrimination in New York – whether an extended leave of absence may be considered a reasonable accommodation under New York City Human Rights Law.  In LaCourt v. Shenanigans Knits, Ltd., No. 102391/11  (N.Y. Sup. Ct., N.Y. Cty., Nov. 14, 2012), an employee informed her supervisor of her recent breast cancer diagnosis and decision to undergo a double mastectomy.  Prior to her scheduled surgery date, the employee met with the company’s president, who informed her that the company was discharging her because of the significant recovery time required for her surgery and the importance of her position. Employee filed suit, alleging disability discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law.  The employer argued that the employee could not perform the essential functions of her job because she planned to be absent from work for more than three months.  The court rejected this argument and held that the company ignored its legal obligation to consider a reasonable accommodation and to engage in the interactive process with the employee.  While an employer is not required to hold a position open indefinitely, the Court held that a temporary leave of absence, even an extended leave, can be a reasonable accommodation. Because here, the employer did not engage in the interactive process at all and failed to establish that they would have suffered an undue hardship by granting the plaintiff a three-month leave of absence, the Court held that the employee had stated a valid cause of action under the New York City Human Rights law.

If you feel you are the victim of disability discrimination in New York, or have been unlawfully terminated, please contact us.

 

New York Disability Discrimination Law | Unlawful Termination – Disability Discrimination

New York Disability Discrimination Law | Unlawful Termination – Disability Discrimination

Extended Leave of Absence May Be a Reasonable Accommodation Under New York City Human Rights Law

In LaCourt v. Shenanigans Knits, Ltd., No. 102391/11  (N.Y. Sup. Ct., N.Y. Cty., Nov. 14, 2012), an employee informed her supervisor of her recent breast cancer diagnosis and decision to undergo a double mastectomy.  Prior to her scheduled surgery date, the employee met with the company’s president, who informed her that the company was discharging her because of the significant recovery time required for her surgery and the importance of her position. Employee filed suit, alleging disability discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law.  The employer argued that the employee could not perform the essential functions of her job because she planned to be absent from work for more than three months.  The court rejected this argument and held that the company ignored its legal obligation to consider a reasonable accommodation and to engage in the interactive process.  While an employer is not required to hold a position open indefinitely, the Court held that a temporary leave of absence, even an extended leave, can be a reasonable accommodation. Because here, the employer did not engage in the interactive process at all and failed to establish that they would have suffered an undue hardship by granting the plaintiff a three-month leave of absence, the Court held that the employee had stated a valid cause of action under the New York City Human Rights law.

If you feel you have been discriminated on due to a disability, or are the victim of unlawful termination, please contact us.

Employment Discrimination - Stray Remarks

One remark is not enough to constitute discrimination. When can you bring an employment discrimination lawsuit based on stray remarks? One comment will almost never, standing alone, make a discrimination lawsuit.  Even an extreme statement, such as a racial slur, sexual joke, pornography, or the like is not sufficient to make out a claim for employment discrimination on its own.  There has to be more.  Below are a few examples of what may suffice to show discrimination.

  1. Adverse employment action:  termination, demotion, suspension without pay, failure to hire, etc. might be enough to show discrimination along with that one remark (depending on what the one remark was). For example, if your boss makes a comment about how women with kids need to stay home and then fires you as soon as he finds out you’re pregnant, you might have a pregnancy discrimination case.
  2. Severe or pervasive conduct:  anything short of an adverse action is considered harassment. Harassment has to be either so severe or so pervasive that it alters the terms and conditions of your employment. That means there would have to be many jokes, comments or differing treatment to rise to the level of illegal harassment.

But don’t get us wrong -- the discriminatory remark is very important.  The remark is evidence and if it related to your protected status (e.g., a racial epithet), then it’s direct evidence of discriminatory animus.

What should you do if your boss makes discriminatory comments?

  1. You should report remarks that directly relate to race, national origin, color, religion, age, sex, disability, genetic information or other protected status in accordance with the company harassment policy.  Put the report in writing.  But don’t go to HR every day and every time there’s a problem.  Use your judgment.  Document any remarks and take them to HR after you have a few. While you might report the first remark, if they don’t take action to stop it, then don’t make yourself a nuisance. Do report any acceleration of the behavior or any retaliation.
  2. You have to report harassment before you can even go to the EEOC, and you have to file with EEOC before you can sue. Don’t skip the steps or you’ll have your case tossed.
  3. Bullying isn’t illegal. If the comments don’t relate to your race, age, sex, national origin, etc. then don’t report them unless you’re being treated differently compared to others of a different race, age, sex, national origin, etc. Unfortunately, it is perfectly legal to be an equal opportunity jerk.
  4. Don’t quit.
  5. Contact us.  We can help!

Does an Employer Violate the ADA by Requiring Regular Attendance?

The U.S. Court of Appeals for the Ninth Circuit recently came out with a decision about whether attendance is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act. *The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case was a nurse in a neonatal intensive care unit at a hospital in Oregon.   The plaintiff suffered from fibromyalgia and missed a lot of work as a result.  After many years the hospital told her she would have to move to another department where her attendance wasn't as critical.  Plaintiff refused.  Eventually, she was fired for poor attendance.

Plaintiff sued the hospital under the ADA, claiming that she should have been allowed to stay in her position and "opt out" of the attendance policy.

The Court held that regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it.  However, regular attendance is not an essential function in every case.  Some jobs can be performed from home or on flexible schedules – examples include computer programming, blogging, etc.

In these circumstances, telecommuting would help the employee perform the essential functions of the job and most courts would say that the employer has to consider allowing telecommuting as a reasonable accommodation.

But many jobs cannot be performed from home.  These jobs include positions where the job requires face time, personal meetings or interaction, or where the employee must work with on-site items or equipment.

The Ninth Circuit held that the nurse’s job duties require her to work as part of a team, have face time with supervisors, other staff, patients and family.  In addition, the Ninth Circuit held that the nurse’s job involved sophisticated equipment that was only available at the hospital facility.

The take home point is that being able to show up to work is a major part of your job.  An employer has a duty to accommodate your disability, but not every accommodation is reasonable.  If you have any questions, or feel that you are being discriminated against on the basis of disability, please contact us.

Transgender Discrimination Law in New York City

Transgender Discrimination is illegal in New York City. Under the New York City Human Rights Law (“NYCHRL”), transgender individuals are protected against workplace discrimination.   The NYCHRL explicitly states that no one can be discriminated against on the basis of gender.  The law then defines gender as "a person's gender identity, self-image, appearance, behavior or expression, whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the legal sex assigned to that person at birth."   Thus, transgender individuals are entitled to the same workplace rights as all other individuals in New York City. If you feel that you have been a victim of transgender discrimination, or any discrimination based upon your gender, sexual orientation, race, disability, age, etc., please contact us. Similarly, if you were terminated shortly after you made an honest complaint of discrimination, you may be a victim of unlawful retaliation. Whether you have been victimized by transgender discrimination, or any other form of discrimination, we can help you fight back. One of our experienced Labor and Employment attorneys will get back to you withing 24 hours. Initial consultations are free, and we handle most cases on a contingency basis - we do not get paid unless we recover for you.

What is a Reasonable Accommodation under the ADA?

The Americans with Disabilities Act (www.ada.gov) ("ADA") requires employer to provide “reasonable accommodations” to their disabled employees.  But what exactly is a reasonable accommodation under the ADA? The Code of Federal Regulations defines an accommodation as “any change in the work environment or the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."


In general, there are 3 categories of reasonable accommodations:  (1) modifications/adjustments to the job application process, (2) modifications/adjustments to the work environment, or (3) modifications/adjustments that enable the employee equal benefits and privileges of employment that similarly situated employees without disabilities enjoy.  In general, the disabled employee must inform the employer of his or her desire for an accommodation.

A reasonable accommodation under the ADA may include:

  • making existing facilities accessible;
  • job restructuring;
  • part-time or modified work schedules;
  • telecommuting
  • acquiring or modifying equipment;
  • changing tests, training materials, or policies;
  • reassignment

Recall that the accommodation has to be “reasonable.”  While there is no clear cut test for what is reasonable, it essentially comes down to common sense.  To be reasonable an accommodation has to be practically feasible from the employer’s perspective.  From the employee’s perspective, an accommodation is reasonable when it enables the employee to perform the essential functions of his or her own job and provides him or her with an equal opportunity to enjoy the benefits and privileges of employment that employees without disabilities enjoy.

Too many people misunderstand their rights under disability discrimination laws.  If you have any questions, please contact us for further information.

EEOC Rules Transgender Status Protected from Discrimination Under Title VII

Employment Discrimination on the basis of gender includes discrimination on the basis of gender identity and transgender status.  If you believe you are the victim of employment discrimination on the basis of your gender or gender identity, our New York employment discrimination attorneys can help you fight for your rights. The U.S. Equal Employment Opportunity Commission (EEOC) recently determined that discrimination based on gender identity, change of sex or transgender status constitutes sex discrimination under Title VII of the Civil Rights Act of 1964.

Mia Macy claimed that she was denied a job at the Bureau of Alcohol, Tobacco, Firearms and Explosives when she announced that she would be transitioning her gender from male to female.  Macy applied for the job as a man and was told that she would get the job pending a background check, but was informed the position was no longer available after stating that she would be undergoing a sex change operation.

Believing she had been unlawfully denied the position, Macy filed a charge with the EEOC.  The EEOC determined that claims of discrimination based on transgender status, also referred to as claims based on gender identity, are cognizable under Title VII.  The EEOC explained that Title VII's protections encompass a person’s biological sex, as well as their gender, which includes cultural and social aspects associated with masculinity and femininity.

In making its determination, the EEOC relied on U.S. Supreme Court precedent holding that Title VII forbids employers from penalizing employees who fail to conform to stereotypical norms.  Under that precedent, Macy would have been discriminated against if she was denied a position due to the perception that her transgender status did not conform to gender stereotypes.

A copy of the decision is here:  https://www.pcc.edu/programs/paralegal/documents/macy-v-holder.pdf

If you believe you have been a victim of employment discrimination on the basis of your gender or gender identity, please contact one of our New York employment discrimination attorneys.