New York Employment Lawyer Blog

A 22 year old former employee of Babies R Us is suing the company, alleging that it failed to accommodate her severe peanut allergy. Though she was originally hired to work in the furniture department, store management subsequently ordered her to work at the cash registers, where candy containing peanuts is sold.

Management ignored her concerns, and threatened to terminate her if she did not work the cash register. When a customer who was checking out began eating a candy containing peanuts, the employee was immediately sent to the emergency room in severe anaphylactic shock. Her reaction to peanuts is so severe, she states, “I’m not able to smell it, and if I do, I could die.” Her attorney states that her allergy is so severe that it falls under the protection of the Americans with Disabilities Act.

The original article containing this story can be found here

The U.S. Equal Opportunity Commission (EEOC) filed a disability discrimination against Starbucks Corporation Sept. 8 alleging that its one of its stores refused to hire an applicant for a barista position because of his multiple sclerosis condition.

In its complaint, the EEOC alleges that Chuck Hannay applied for one of six positions at this Starbucks’ location but was treated differently from other interviewees. Disability discrimination violates the Americans With Disabilities Act (ADA). The lawsuit seeks monetary relief, Hannay being instated to a Starbucks job, and an injunction against future discrimination.

Lynda Sabatelli claims she was discriminated against by LensCrafters after being terminated from her position in a Long Island store. Sabatelli began working at the store in September 2008, only to be diagnosed with breast cancer sometime thereafter.

Sabatelli alleges that once she returned from her double mastectomy surgery, her hours were drastically reduced and she was reassigned to another location. More so, her job title was changed and she received a pay cut. Even more alarming, once Sabatelli’s hair began to change as a result of her medical treatment, she was removed from a position in the public eye and forced to work in a back corner of the store.

LensCrafters fired Sabatelli in March for “unspecified customer complaints,” leaving Sabatelli without any medical benefits. Sabatelli has since filed a lawsuit against LensCrafters, alleging that LensCrafters discriminated against when they changed her job roles and eventually terminated her, in which she hopes to be justly compensated as a result.

The Equal Employment Opportunity Commission has filed a lawsuit against Kmart alleging employment discrimination. The Commission claims that Kmart violated the American’s with Disabilities Act when they fired a disabled greeter at one of their stores in Norfolk, Virginia.

The lawsuit was filed after the Commission was unable to reach a voluntary settlement with Kmart. The discrimination suit is seeking reinstatement of the employee, monetary damages, and an order from the Court that Kmart follow policies to ensure people with disabilities are offered equal employment opportunities at their stores.

In 14 Penn Plaza LLC v. Pyett, _ U.S. __, 129 S.Ct. 1456 (Apr. 1, 2009), the United States Supreme Court determined that, as a matter of law, a union may, through a collective bargaining agreement (“CBA”), waive an individual’s right to present statutory claims of employment discrimination to a jury. The concern, however, which the Court recognized, is that since the union has control over which claims go to arbitration and which claims do not, the union could effectively prevent the employee from any kind of trial, whether through arbitration or through court.

The courts are now beginning to define the limits of Pyett. In Kravar v. Triangle Services, Inc., No. 06-cv-07858 (RJH) (S.D.N.Y. May 19, 2009), a court issued one of the first decisions applying Pyett. In Kravar, the employee sought to submit her claims to a jury. She argue that arbitration was possible for her because she had tried to submit her claim to the union, but was told that she “could not do so because the union was most likely to dismiss [her] complaint.” Id. at pg. 5-6. The Court, denying the motion to compel arbitration, held that:

The current record is sparse, but it only supports a single conclusion: The CBA here operated to preclude Ms. Kravar from raising her disability-discrimination claims in any forum. As such, the CBA operated as a waiver over Ms. Kravar’s substantive rights, and may not be enforced.

The Court noted that these facts “falls within an exception to the enforceability of a union-negotiated arbitration agreement expressly noted in Pyett.”

Accordingly, while a waiver of a jury contained in a CBA is enforceable, a jury will remain available if the union, in deciding which cases go to arbitration, prevents the individual from having his or her claims heard.

On January 1, 2009 amendments made to the Americans with Disability Act (“ADA”) went into effect. The amendments significantly broaden the coverage of the ADA by overturning two recent U.S. Supreme Court decisions that had made it more difficult for individuals to establish they were “disabled” under and covered by the ADA. The new law strongly states that the definition of “disability” is to be interpreted “in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA].” The bottom line is that many more people will be covered by the new, expanded definition of “disability.”

Under both the original ADA and the Amendment, a “disabled” person is one who has, “a physical or mental impairment that substantially limits one or more major life activities,” a record of such an impairment, or being regarded as having such an impairment. However under the Amendment, the “regarded as” prong of the definition of disability has been amended to require that the individual be regarded as having an impairment, without regard to whether it substantially limits a major life activity. The only requirement for the “regarded as” prong is that the impairment must not be minor (undefined) or transitory (lasting less than 6 months).

The Amendment also defines and vastly expands the term “major life activities” from the prior definition.

The Amendment further overturns two United States Supreme Court decisions: Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). In Sutton, the Supreme Court held that the determination of whether an impairment substantially limits a major life activity must be made considering the ameliorative effects of mitigating measures. The Amendment reverses this holding and requires that impairments be evaluated without regard to the ameliorative effects of mitigation measures (such as hearing aids and medication; however, normal eye glasses and contact lenses still should not be considered). The Amendment also overturns the holding in Toyota, which held that the ADA terms “major”and“substantial” were to be interpreted strictly under a demanding standard to prove one is disabled, and defining “substantially limited” as “severely restricts.” The Amendment states that the term disability is to be viewed broadly and that the EEOC should promulgate regulations redefining “substantially limited” in line with the original purpose of the ADA.

Another important change requires that impairments that are episodic or in remission qualify as a disability if they would qualify in their active stage. Thus, an individual with cancer that is currently in remission, would have their condition evaluated in its active stage. This change, along with the change regarding mitigating measures, moves numerous conditions (cancer, diabetes, epilepsy, etc.) from a case by case determination to almost certain status as a disability.