New York Employment Lawyer Blog

In a recent disability discrimination case, Brady v. Wal-Mart Stores 531 F.3d 127 (2nd Cir., 2008), the Second Circuit Court of Appeals broadened the requirement of an employer to reasonably accommodate a disabled employee.

Our courts have previously held that it is the individual disabled employee’s responsibility to request that an accommodation be granted. This disability discrimination case, which was brought under the Americans with Disabilities Act, is significant in that the court held the following:

“an employer has a duty to reasonably accommodate an employee's disability if the disability is obvious - which is to say, if the employer knew or reasonably should have known that the employee was disabled.”

In Brady, the plaintiff suffered from cerebral palsy and there was evidence in the record that his disability was readily apparent. The Plaintiff never requested an accommodation because he didn’t know one was required.

The Second Circuit, in discussing this broadening of its approach, commented that it “is consistent with the statutory and regulatory language, which speaks of accommodating ‘known’ disabilities, not just disabilities for which an accommodation has been requested.”

On December 15, 2008, Mind, a prominent British mental health charity, launched “Time to Challenge,” a legal project that will focus on eliminating disability discrimination in employment as well as several other key areas, such as insurance coverage and government services. While Mind will take on cases that go beyond discrimination, it will also seek to eliminate mental health discrimination in the workplace, where an employee has been subjected to discriminatory termination or constructive discharge.

While mental health disability is covered under the New York City Human Rights law, one interesting aspect of the British legal project is its focus on discrimination perpetrated against someone associated with a disabled person. This focus on discrimination against those associated with people in a protected class under the law may offer another much needed source of protection from employment discrimination.

In Sprint v. Mendelsohn, 466 F. 3d 1223 (10th Cir. 2006), the United States Supreme Court addressed the admissibility of what has commonly been referred to as “me too” evidence, meaning evidence that other employees not supervised by the plaintiff’s manager were also victimized by the same type of employment discrimination. In the Sprint case, the plaintiff was terminated as part of a reduction in force. However, the plaintiff believed that her particular termination was not business related, but rather the result of age discrimination. To support her claim, the plaintiff sought to introduce evidence from five former Sprint employees who claimed that their managers discriminated against them because of their age. None of the five former employees worked in the same department as the plaintiff and none of them worked under the plaintiff’s supervisor. Sprint argued, among other things, that the evidence was not relevant to whether the plaintiff was discriminated against and the trial court agreed, prohibiting the plaintiff from adducing evidence from employees not similarly situated to the plaintiff. On appeal, the Tenth Circuit reversed the trial court’s ruling, holding that the trial court abused its discretion by implementing a per se rule precluding such “me too” evidence. The Tenth Circuit reviewed the plaintiff’s proposed “me too” evidence and found that it was relevant. As a result, the Tenth Circuit reversed the decision and ordered a new trial with instructions to admit the challenged testimony.

Sprint appealed to the U.S. Supreme Court which, affirming the Tenth Circuit’s decision, stated that “[w]e conclude that such [me too] evidence is neither per se admissible nor per se inadmissible.” Because it was not entirely clear that the trial court was applying a per se rule, the Supreme Court remanded the case back to the trial court for a further explanation of its decision. The Court elaborated that the “question [of] whether evidence of discrimination by other supervisors is relevant in an individual Age Discrimination in Employment Act case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.”

Now, a fact-based inquiry must be made on a case-by-case basis regarding “me too” evidence so that a victim of employment discrimination will not be subjected to an absolute rule excluding such evidence as irrelevant. We at Schwartz & Perry LLP believe that the Sprint case represents a victory for employment discrimination plaintiffs who often find their claims difficult to prove because of the lack of direct evidence of employment discrimination.

The United States is known as the land of opportunity. Millions of immigrants have flocked to its shores in order to escape persecution start a new life in a country free from harassment, discrimination, and intolerance. This too became true for Americans with disabilities in the early 1970s with the passing of the Rehabilitation Act of 1973, and then with the Americans with Disabilities Act (ADA). It was then that employees with disabilities were officially recognized as having protected rights against unfounded disability discrimination.

However, despite the “good intentions” behind the ADA, a recent article in The National Law Journal described the shortcomings of the bill and pushed for Senate approval of the ADA Amendment Act (ADAAA). The article described the inadequacies of the ADA, citing the dilemma Americans with disabilities face - if they attempt to mitigate their disabilities, they can no longer be considered disabled, however, if they do not, they can be considered unfit to perform their job.

The article acknowledges the potential problem that people will take advantage of the ADAAA in order to obtain monetary compensation for concocted disabilities, however, the article states how individuals who are truly disabled will get the opportunities they deserve to have a role in the workforce free from disability discrimination.

President Bush recently signed the Genetic Information Nondiscrimination Act (GINA) into law in May. The act, the first civil rights legislation of the new millennium, protects employees from being discriminated against because of their genetic information.

The act is the first Federal law of its kind to tackle genetic heritage as a form of discrimination. GINA specifically prohibits employers from firing, refusing to hire, or otherwise discriminating against employees on the grounds of an individual’s genetic information.

A recent bill has passed both the U.S. House of Representatives and the United States Senate and is awaiting the signature of the President. This bill represents the intersection of anti-discrimination and human rights laws with that of privacy rights.

According to a recent article in The New York Times, the bill is called the Genetic Information Nondiscrimination Act (GINA) and it will prohibit both employers and health insurers from discriminating against individuals on the basis of their genetic information. This bill has received broad bi-partisan support and has the possible effect of increased public participation in genetic testing and related fields.

A New York State Judge in Brooklyn has re-confirmed the broad goals of the New York City Human Rights Law. In Bumpus v. New York City Transit Authority, 18 Misc.3d 1131(A) (N.Y. Feb. 13, 2008), the plaintiff was a transgender woman who had been born anatomically male but lived her life with a female identity. She complained that she had been discriminated against by a New York Transit Authority employee who had harassed her and made “transgender-phobic epithets” to her for a period of approximately 10 minutes.

The court denied the New York Transit Authority’s motion to dismiss the case, reaffirming that “[t]he Human Rights Law affords protection to transgender people in New York City.” The Court noted that “[t]he New York City Human Rights Law was intended to be more protective than the state and Federal counterparts,” and that “[t]he legislative history contemplates that the law be independently construed with the aim of making it the most progressive in the nation.”

In its decision regarding the New York City Human Rights Law, the court relied on the case of Selmanovic v. NYSE Group, a case in which Schwartz & Perry LLP is participating. We remain committed to fighting to ensure that the New York City Human Rights Law remains one of the most stringent and protective human rights laws in the country.

The Employment Non-Discrimination Act (ENDA), the proposed Federal legislation which passed the U.S. House of Representatives on November 7, 2007, would prohibit discrimination against employees on the basis of their sexual orientation. The bill signifies progress for gays and lesbians in the workforce that was years in the making.

However, the bill, H.R. 3685, does not offer protection to transgender employees. Language in an older version of the bill that offered protections based on gender identity was removed by Democratic lawmakers in order to make sure the bill would be passed. As a result, some activists and legislators have taken the position that the effect of forsaking the “T” of the LGBT (Lesbian, Gay, Bisexual and Transgender) group in the passage of the ENDA bill is an unacceptable compromise that only divides the LGBT community by leaving one of its groups behind. Indeed, five of New York’s Representatives in the House did not support the bill's passage because of its failure to include the language addressing protections based on gender identity.

In comparison, the New York City Human Rights Law is more progressive than Federal laws in the manner in which it protects employees. For the past several years, New York City has offered protections to transgender employees since the New York City Council amended the city's Human Rights Law in 2002. As such, New York City historically has had the distinction of having one of the nation’s most comprehensive set of human rights laws to protect employees against employment discrimination. The New York City Human Rights Law, in addition to offering protection for transgender employees, is unlike Federal laws in that it enables victims of employment discrimination to seek compensatory and punitive damages without being subject to a cap.