New Jersey Employment Lawyer Blog

Last month, in Gibbs v. Caswell-Massey, New Jersey's Appellate Division ruled that Linda Gibbs could proceed with her disability discrimination lawsuit against her former employer, Caswell-Massey. Caswell-Massey is a luxury bath and body products company in Edison, New Jersey. It hired Ms. Gibbs in 1993 . She was gradually promoted through the company's ranks, and eventually became its Corporate Manager, Retail Stores and International Sales.

In 2000, Ms. Gibbs's doctor diagnosed her with sleep apnea. This disability causes Ms. Gibbs fatigue, and often makes it difficult for her to stay awake at work. For example, she occasionally nods off at her desk. Caswell-Massey warned Ms. Gibbs on several occasions that her unexcused absences, sleeping, and poor job performance were unacceptable, and that she could be fired if she had any further performance issues. Nonetheless, Ms. Gibbs received an overall performance rating of "above overall expectations" in both 2005 and 2006.

In November 2006, Ms. Gibbs took a four-week disability leave to have hernia surgery. The company fired her two days after she returned to work. It claims its decision to fire was based on information it received from Steven Culter during Ms. Gibbs's disability leave. Mr. Cutler was business partners with Ms. Gibbs' husband. He and Mr. Gibbs apparently worked together at the Route 18 flea market in East Brunswick, New Jersey. Mr. Cutler claimed that Ms. Gibbs was stealing products from Caswell-Massey, and her husband was selling them at the flea market. He eventually provided the company with photographs of Caswell-Massey's products that he was selling at the flea market, a copy of a book with Gibbs's handwriting that listed prices for Caswell-Massey products, and his own sworn statement claiming Ms. Gibbs admitted she had taken products from Caswell-Massey.

Caswell-Massey investigated Mr. Cutler's allegations. During the investigation, Ms. Gibbs claimed she did not know her husband was selling Caswell-Massey products at the flea market. She also claimed that Mr. Cutler was blackmailing her, and provided evidence including threatening voicemail messages that Mr. Cutler had left her. Caswell-Massey suspended Ms. Gibbs without pay while it conducted its investigation. At the conclusion of the investigation, it fired Ms. Gibbs, supposedly because she had violated the non-compete provision in her employment contract.

The trial court dismissed Ms. Gibbs's case, including her claim that Caswell-Massey fired her because of her disability in violation of the New Jersey Law Against Discrimination (LAD). It ruled that she did not have enough evidence to prove that Caswell-Massey's explanation for firing her was a pretext, or excuse, for discrimination.

The Appellate Division disagreed. It held that a reasonable jury could believe that Caswell-Massey discriminated against Ms. Gibbs, based on evidence supporting the conclusion that the company conducted an inept and cursory investigation, relied on Mr. Cutler's statements even though he was a biased and questionable source, and ignored Ms. Gibbs' 13 year history with the company, in addition to the lack of evidence that Ms. Gibbs' husband ever sold a single Caswell-Massey product. However, the Court also indicated that a jury could come to the opposite conclusion, and could find that the company fired Ms. Gibbs because she violated her non-compete agreement. As a result, the Appellate Division sent the case back to the trial court, so a jury can decide whether Ms. Gibbs has proved that Caswell-Massey illegally discriminated against her.

Continue reading "Jury to Decide Whether Caswell-Massey Discriminated Against Disabled Employee With Sleep Apnea" »

In two previous articles, I discussed the case of Thomas Bowers, an Information Technology Analyst who successfully appealed his race discrimination claim and his retaliation claim against the New Jersey Judiciary. Mr. Bowers was also successful on his appeal of his claims that the judiciary forced him to resign by refusing to provide him a reasonable accommodation for his disability, in violation of the New Jersey Law Against Discrimination (LAD).

Mr. Bowers claims he experienced mental and physical distress as a result of the race discrimination, harassment, and retaliation he experienced at work. His doctor diagnosed him with Anxiety Disorder, and suggested that he take medical leave from June 6 to July 1, 2007. Mr. Bowers' doctor subsequently extended his medical several times, and ultimately indicated Mr. Bowers would be ready to return to work on October 1, 2007.

On August 30, 2007, the Judiciary warned Mr. Bowers he was about to exceed his 12 weeks of protected FMLA leave. It told him he could extend his leave of absence by using his vacation time, but that he would run out of vacation time on September 6. The Judiciary warned Mr. Bowers that if he did not return to work by September 10, it would consider him to be on "an unauthorized leave of absence," and he would be subject to discipline.

On September 4, Mr. Bowers' lawyer informed the Judiciary that Mr. Bowers would not return to work until October 1. The Judiciary responded that it expected him to return to work on September 10, and repeated that he would be subject to discipline if he did not return to work by that date. The Judiciary claimed it had "experienced significant operational hardship during his absence," and could not accommodate his disability as a result. The Judiciary subsequently fired Mr. Bowers, effective September 10, 2007, because he had failed to return to work.

The Appellate Division concluded that a jury could reasonably conclude that the Judiciary failed to provide Mr. Bowers a reasonable accommodation for his disability, in violation of the LAD. It noted that Monmouth County did not post Mr. Bowers' vacant position until October 2008, and did not fill his position until January 20, 2009. It is unclear why the Judiciary could not have accommodated Mr. Bowers' disability by placing him on an unpaid medical leave through the end of September, and allowing him to return to work on October 1. If it had done so, his position would have been vacant for only 3 weeks, instead of remaining vacant until January 20. The Court noted that although the Judiciary claims budgetary constraints prevented it from replacing Mr. Bowers' sooner, a jury might reach a different conclusion. Accordingly, it found that the evidence could support a claim of failure to accommodate a disability in violation of the LAD.

Continue reading "Employee Alleges New Jersey Judiciary Failed to Accommodate His Disability" »

Recently, the United States Court of Appeals for the Third Circuit decided a case with an important lesson for employees requesting time off due to a disability, and the employment law attorneys who represent them. Specifically, in Prigge v. Sears Holding Corp., the Third Circuit dismissed an employee's disability discrimination case on the basis that the employee was fired for failing to provide all of information his employer requested about his medical absences, and lied to the company about his disability. The Third Circuit is the federal court that handles appeals from the District of New Jersey.

John Prigge worked for Sears Holding Corp., as a store coach, from April 2007 through February 2008. Mr. Prigge was diagnosed with bipolar disorder. He began feeling ill in December 2007, and took at least two days off from work and had to leave work early on several other occasions. However, he lied to his supervisors by claiming he needed the time off for radiation treatment due to a recurrence of his prostate cancer.

Mr. Prigge was subsequently hospitalized for a week in late January 2008 because his depression had gotten worse and he was having suicidal thoughts. When he was released from the hospital, he contacted his supervisor and told him he had been absent because he suffers from bipolar disorder and had been at a mental health hospital. Mr. Prigge's boss told him he could not return to work until he submitted doctor's notes from both the hospital and the physician who had treated his prostate cancer. The next day, Mr. Prigge admitted to his boss that he had not actually undergone prostate cancer treatment in December 2007 or January 2008.

When Mr. Prigge submitted the two doctor's notes that his boss had requested, his boss told him he could return to work on February 11, 2008. However, when Mr. Prigge returned to work as scheduled, the company sent him home and told him he needed to submit additional medical certifications. Mr. Prigge subsequently received a warning letter from Sears saying he had not provided medical releases explaining all of his unexcused absences. However, Mr. Prigge did not submit the additional certification Sears had requested. Accordingly, on February 26, 2008, Sears fired him.

Mr. Prigge then sued Sears, claiming it fired him in violation of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state law. The trial court dismissed his case in its entirety. He then appealed his disability discrimination claim to the Third Circuit. In an unpublished opinion, the Third Circuit affirmed the dismissal of Mr. Prigge's case because he admitted he had not submitted all of the doctor's notes Sears had requested. The court also noted that Sears had the right to fire him for lying about the reason he needed time off in December 2007.

The Prigge decision is unpublished, so it is not a binding legal precedent. However, it highlights some of the potential dangers employees face when they ask for time off or other reasonable accommodations for a disability. For example, employees are often caught between the risks of (1) disclosing too much information about their medical conditions, and losing their medical privacy and risking harassment or retaliation because of their disability, and (2) providing false or incomplete information, and either having their requests denied or getting disciplined or fired as a result.

Deciding how much information to provide your company about your disability can be a very difficult and important decision. That is especially true if your disability is a mental illness, or another medical condition that is misunderstood or may carry a stigma. As a result, it can be extremely important to speak to an experienced employment lawyer before you request time off from work or ask for another reasonable accommodation for a disability.

Last week, I discussed the Equal Employment Opportunity Commission ("EEOC")'s new regulations regarding the Americans with Disabilities Act Amendments Act (ADAAA) which discuss the newly broadened scope of the ADA, and the terms "major life activity" and "substantially limited." In this article, I will focus on ADAAA regulations that cover the concept of "mitigating measures" for disabilities, and how to prove that an employee has a "record of" a disability or is "regarded as" having a disability.

What Are "Mitigating Measures," and When Can They Be Taken Into Consideration Under the ADAAA?

Under the ADAAA, most "mitigating measures" must be ignored when determining whether an individual is disabled include. A mitigating measure is something that reduces or minimizes the limitations caused by a disability. Examples of mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

However, the new ADAAA regulations indicate that it is appropriate to consider the negative side effects of a mitigating measure when determining whether an individual is disabled. Similarly, it is proper to consider a mitigating measure when deciding whether an employee is qualified for his job, or is entitled to a reasonable accommodation for his disability.

What Does it Mean to Have a "Record of" a Disability?

In addition to protecting individuals who are actually disabled, the ADA protects individuals with a "record of" a disability. Under the new ADAAA regulations, someone has a record of a disability if he previously had an impairment that substantially limited him in a major life activity, or was misclassified as having an impairment that substantially limited a major life activity.

What Does it Mean to Be "Regarded as" Having a Disability?
The ADAAA also protects individuals who are "regarded as" being disabled. According to the new regulations, this includes any employee whose employer correctly or incorrectly believed he has an impairment, unless the employer reasonably believed the impairment was both minor and expected to last for six months or less. Unlike the previous ADA regulations, under the new regulations an employer does not have to believe the impairment substantially limited the employee's ability to perform a major life activity to regard an employee as disabled.

Continue reading "More About the EEOC's New Americans with Disabilities Act Regulations" »

As I previously discussed, protection for disabled employees was vastly expanded on January 1, 2009, when the Americans with Disabilities Act Amendments Act (ADAAA), a law expanding the scope of Americans with Disabilities Act (ADA), went into effect. On March 25, 2011, the United States Equal Employment Commission (EEOC) established its final regulations clarifying the ADAAA. Courts generally must follow these regulations unless they are inconsistent with the ADAAA.

Below, I discuss some of the regulations regarding the scope of the ADAAA, and the terms "major life activity" and "substantially limited." Next week, I will discus additional regulations that explain when an employer can consider "mitigating measures" for disabilities, and how to prove that someone is covered by the ADA because he has a "record of" a disability or is "regarded as" having a disability.

The Scope of the ADAAA
easier for employees to meet that definition. The ADA still covers individuals who have (1) an actual physical or mental impairment that "substantially limits" a "major life activity;" (2) a "record of" such an impairment, and (3) are "regarded as" having an impairment. However, the meanings of those terms have been broadened significantly.

What is a "Major Life Activity" Under the ADAAA
The regulations explain that the term "major life activity" includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

Some impairments almost always are considered disabilities. Examples include deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

What Does it Mean to "Substantially Limit" a Major Life Activity?
The regulations say the term "substantially limits" should be interpreted broadly and does not necessarily require an individual to be severely or significantly limited. Generally, the focus should be on whether the employer discriminated against the employee, not on whether the employee meets the definition of disabled.

They also say that, when determining whether the impairment is a disability, you can consider the condition, duration, and manner in which an individual can perform a major life activity. They further clarify that an impairment can be covered by the ADAAA even if it lasts less than six months, is episodic, or is in remission. For example, episodic impairments like epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia, and cancer in remission, all can be impairments under the ADAAA.

Continue reading "EEOC Issues New Americans with Disabilities Act Regulations" »

On July 28, 2010, New Jersey's Appellate Division ruled that a former employee of the Atlantic City Board of Education could proceed with his lawsuit. Even though the decision in Clarke v. Atlantic City Board of Education is not a legally binding precedent, it is noteworthy because it recognizes that a few relatively minor discriminatory actions potentially can be enough to prove a harassment claim.

The case was filed by Melvin Clarke, who had been an Assistant Superintendent for the Board of Education. He has a disability which limits his ability to walk, and as a result uses a power scooter and a cane. In February 2002, he filed a disability discrimination lawsuit against the Board and two of its employees. As part of a settlement of that case, the Board agreed to give Mr. Clarke a raise of $5,000 per year, and guaranteed his annual salary would remain at least $5,000 higher than the other Assistant Superintendents in the School District.

In June 2006, Mr. Clarke sued the Board again, this time alleging both retaliation and disability discrimination. The trial court dismissed his claim, finding he did not allege an "adverse employment action." To win in an employment discrimination case, an employee must show he suffered an adverse employment action, such as being fired or demoted because of his or her age, race, gender, disability, or another legally protected category.

As the Appellate Division explained, an adverse employment action has to be serious enough to alter the employee's compensation, terms, conditions, or privileges of employment, deprived the employee of future job opportunities, or had another significant negative effect on his or her job. Examples include being fired, demoted, suspended, passed over for a promotion, forced to resign, or harassed. Harassment is when a company subjects an employee to many separate but relatively minor actions, each of which might not be actionable on its own, but when combined, make up a pattern of discrimination or retaliation conduct.

The Appellate Division reversed the trial court's decision because it found Mr. Clarke's allegations, if true, could establish a hostile work environment harassment claim. His relevant allegations included the fact that the Board (1) moved his office to the sixth floor of the building and further from a bathroom, even though he has difficulty walking, and did not relocate his office after he was stranded on the sixth floor during a fire alarm; (2) refused to develop a plan to provide reasonable accommodations for his disability; and (3) violated his settlement agreement by failing to keep his salary at least $5,000 more than the other Assistant Superintendents. Since the appellate court found Mr. Clarke's allegations could be enough to prove a harassment claim, it sent his case back to the trial court to give him a chance to prove his case.

The question of whether a particular situation is bad enough to be a legally actionable harassment is very fact specific. It depends on factors such has how frequently the harassment happens, how severe the harassment is, and who is committing the harassment.

Continue reading "New Jersey Court Allows Harassment Claim Based on Relatively Minor Acts" »

In a recent federal employment law decision, the Third Circuit Court of Appeals ruled that side effects of medication or other medical treatment can constitute an impairment within the meaning of the Americans with Disabilities Act (ADA). The ADA is a federal law which prohibits employers from discriminating against employees because they are disabled.

To be protected by the ADA, an employee must prove he has a disability, as defined by the statute. Usually, an employee proves he is disabled by showing that his disability substantially limits his ability to perform a major life activity. Major life activities include caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

In Sulima v. Tobyhanna Army Depot, the Third Circuit ruled that employees can also prove they are disabled by showing that the effects of their medication or other medical treatment substantially impair a major life activity.

Ed Sulima, the plaintiff in Sulima, is morbidly obese and suffers from sleep apnea. As a result of his disabilities, he took weight loss medication prescribed by his doctor. However, the medicine caused him gastrointestinal difficulties which made it necessary for him to take long and frequent bathroom breaks.

Mr. Sulima's supervisor noticed him leaving his desk frequently, and questioned him after he was away from his workstation for a total of two hours during a single work shift. Mr. Sulima explained his time away from his desk was due to a side effect of his medication. The next day, he provided a doctor's note confirming he needed to use the restroom frequently due to a gastrointestinal disorder.

Six weeks later, Mr. Sulima was informed that he was being transferred to a different work area. He then brought in another doctor's note, which indicated that he had changed medications and no longer needed long breaks.

However, the company still decided to transfer Mr. Sulima, even though there were no other work areas available. Three days later, Mr. Sulima accepted a voluntary layoff. He later filed a lawsuit against his employer, claiming his employer forced him to accept a layoff because he is disabled.

The Third Circuit found that, under the circumstances, Mr. Sulima's morbid obesity and sleep apnea were not disabilities under the ADA. As a result, it had to decide whether he could be considered disabled as a result of the gastrointestinal difficulties caused by his medication.

The Third Circuit ruled that an employee who claims he is disabled as a result of his medication or other medical treatment must prove that:

1. the medication or treatment is required in the "prudent judgment" of his medical profession;


2. there is no available alternative that is equally effective and lacks similarly disabling side effects; and


3. the treatment is not solely required for an impairment resulting from the employee's voluntary choices.

It should be noted that, in Sulima, the Third Circuit interpreted the ADA before it was amended by the ADA Amendments Act of 2008. The ADA Amendments Act only applies to disability discrimination claims based on events that occurred on or after January 1, 2009.

It is likely the Court would have applied the same test in a case brought under the ADA Amendments Act. However, since the amendment significantly broadened the definition of a disability under the ADA, the Court might have reached a different conclusion if Mr. Sulima had been fired on or after January 1, 2009.

On April 8, 2010, in the case of Colwell v. Rite Aid Corporation, the United States Court of Appeals for the Third Circuit ruled that employers can be required to change an employee's work shift to accommodate the employee's disability. The Third Circuit is the federal appellate court that covers several states, including New Jersey.

The Facts of Colwell v. Rite Aid Corporation

Jeanette Colwell worked as a cashier at a Rite Aid store. On some days she worked the day shift (9 a.m. to 2 p.m.), and on other days she worked the night shift (5 p.m. to 9 p.m.).

In the summer of 2005, Ms. Colwell was diagnosed with retinal vein occlusion and glaucoma in her left eye. She eventually went blind in her left eye.

Although Ms. Colwell was able to do her job, her disability made it difficult for her to drive at night, and there was no public transportation available after 6 p.m. In September 2005, she told her supervisor, Susan Chapman, that her partial blindness made it dangerous for her to drive to work at night. Ms. Chapman refused to change her shift, claiming it would not be fair to her coworkers.

In late September or early October 2005, Ms. Colwell gave Ms. Chapman a doctor's note saying she should not drive at night. Ms. Chapman still refused to allow Ms. Colwell to replace her night shifts with day shifts.

With rides from her family, Ms. Colwell was able to work her night shifts. However, she told Ms. Chapman she could not depend on other people for rides all the time. Working night shifts was also a hardship for Ms. Colwell's family. Nonetheless, Ms. Chapman continued to schedule her for both day and night shifts.

In October 2005, Ms. Colwell spoke to her union representative, Ken Karasek, about her need to change her shifts. Mr. Karasek was unable to convince Ms. Chapman to switch Ms. Colwell's night shifts for day shifts. However, he scheduled a meeting between himself, Ms. Colwell, and Ms. Chapman to discuss the issue further. Mr. Karasek did not to show up to the meeting. Although Mr. Karasek offered to reschedule the meeting, Ms. Colwell was fed up, and submitted a resignation letter on October 12, 2005.

Ms. Colwell then sued, claiming disability discrimination in violation of the Americans with Disabilities Act (ADA). Specifically, she alleged that Rite Aid failed to provide her a reasonable accommodation for her disability in violation of the ADA. She also claimed Rite Aid "constructively discharged" her in violation of both the ADA and the ADEA.

Failure to Accommodate Disability

The Third Circuit found that Ms. Colwell's disability discrimination claim should be decided by a jury. An employer discriminates against an employee in violation of the ADA if it fails to reasonably accommodate an employee's known physical or mental limitations, unless the company can prove that providing the necessary accommodation would impose an undue hardship on its business.

Depending on the circumstances, an employer might be required to make the workplace accessible to disabled employees as a reasonable accommodation. Other examples of reasonable accommodations can include restructuring a disabled employee's job, providing her a part-time or modified work schedules, reassigning her to a vacant job, or obtaining different equipment or change existing equipment.

The Court further explained that the ADA requires employers to engage in an "interactive process" with disabled employees. The purpose of this interactive process is to decide whether the company can provide a reasonable accommodation to allow the disabled employee to perform her job.

An employer that fails to provide a reasonable accommodation to a disabled employee violates the ADA if:

1. the employer knew about her disability;


2. the employee requested an accommodation or assistance for her disability;


3. the employer did not make a good faith effort to help the employee to seek an accommodation; and


4. the company could have provided the employee a reasonable accommodation if it had acted in good faith.

When an employee requests a reasonable accommodation she does not need to use any "magic words." Rather, she just has to make it clear she needs assistance for her disability. In other words, if the employer has enough information to know the employee has a disability and needs an accommodation, then it needs to ask the employee how it can help her. At that point, both the employer and the employee must work together to search for an appropriate reasonable accommodation.

Applying this law, the Third Circuit ruled that the ADA can require a company to accommodate an employee's disability which limits her ability to get to work. That includes allowing an employee to change shifts to accommodate her disability if doing so is reasonable under the circumstances.

In the end, the Third Circuit found that, if a jury believes Ms. Colwell version of the facts, then it could find that Rite Aid violated the ADA. Specifically, a jury can find that as soon as Ms. Colwell asked Ms. Chapman to change her schedule because her disability prevented her from driving at nite, Rite Aid should have talked to her about how it could accommodate her disability. As a result, the Court sent the case back to the trial court so a jury can decide whether Rite Aid discriminated against Ms. Colwell in violation of the ADA.

Earlier this year, New Jersey amended its Law Against Discrimination to expressly include "autism spectrum disorders" in its definition of disability. This means it is unlawful for New Jersey employers to discriminate against employees because they are autistic, unless the company can show that the autistic employee cannot perform the essential functions of his or her job, even with a reasonable accommodation. It also means that employers must provide reasonable accommodations for employees who are autistic.

The Law Against Discrimination prohibits employers from discriminating against employees because they belong to legally protected categories. In addition to disabilities, other legally protected categories include age, race, national origin, gender, pregnancy, sexual orientation, and religion.

This amendment to the New Jersey Law Against Discrimination was based on an October 8, 2009 report from the Adults with Autism Task Force. The full text of the new law is available here.

New York's Appellate Division recently recognized that a disabled employee working in New York may be entitled to take extended medical leave under the New York State and New York City Human Rights Law.

The case involved Deborah Phillips, a civil service employee for New York City's Department of Homeless Services (DHS). After Ms. Phillips had worked for DHS for 18 years, she took a 3 month medical leave for a serious medical condition, stage III breast cancer. Ms. Phillips asked her employer to extend her medical leave for a full year. DHS denied her request because she had exceeded her entitlement to 12 weeks of leave under the Family and Medical Leave Act (FMLA), and was ineligible for additional unpaid medical leave under the Department's policy. DHS told her that if she did not return to work by October 30, 2006, the date on which she originally agreed to return to work, she would be subject to disciplinary action, or fired.

Ms. Phillips then asked DHS if she could take any additional medical leave. The City denied her request, again telling her that if she did not to return to work by October 30, she would be fired and would lose her medical benefits. Ms. Phillips did not return to work, and DHS eventually fired her.

Ms. Phillips sued, claiming New York City denied her reasonable accommodations for her disability and fired her because of her disability, in violation of the New York State Human Rights Law and the New York City Human Rights Law. She sought to be reinstated to her job with DHS, damages for her lost salary and benefits, and punitive damages.

The trial court dismissed Ms. Phillips' case, ruling that her cancer was not a "disability" under either the New York State or New York City Human Rights Law, but even if she was disabled she could not prove her claim because she admitted she could not perform the essential functions of her job, even with a reasonable accommodation. In particular, the court found Ms. Phillips had asked DHS to hold her job open "indefinitely," which was not a reasonable accommodation under either the New York State or the NYC Human Rights Law.

But New York's Appellate Division disagreed. On July 28, 2009, it reversed the trial court's decision dismissing Ms. Phillips' case, finding she had set forth valid claims of disability discrimination and failure to accommodate disability under New York State's and New York City's anti-discrimination laws.

Under the New York State Human Rights Law, a reasonable accommodation is an action that allows an employee to perform the essential functions of her job. Reasonable accommodations can include providing an accessible work site, acquiring or modifying equipment, providing support services for a person with impaired hearing or vision, restructuring a job, or providing a modified work schedule, as long as doing so would not impose an undue hardship on the business.

The appellate court found it was improper for DHS to deny Ms. Phillips' request for an extended medical leave based on its policy, without engaging in an individualized "interactive process." Specifically, DHS should have talked to Ms. Phillips to clarify her needs, and to consider its own business needs, in an effort to find an appropriate reasonable accommodation.

The Appellate Division ruled that, under both the State and City Human Rights Law, a company's failure to engage in the interactive process, by itself, is a violation of law. This is different from the federal anti-disability discrimination law, the Americans with Disabilities Act (ADA), and many state laws, including the New Jersey Law Against Discrimination (LAD). Under the ADA and the LAD, in order to prove a claim based on their employer failing to engage in the interactive process, employees must identify a reasonable accommodation that would have permitted her to perform the essential functions of her job.

New York's Appellate Division also disagreed with the lower court's conclusion that Ms. Phillips had requested an "open-ended" medical leave, since she later asked for any additional medical leave. But it ruled that if Ms. Phillips had needed a one-year extension to her leave, DHS might have been required to grant her that much time off to recover from surgery for her breast cancer. It noted that, in many circumstances, a request for a one-year medical leave would not be reasonable. However, it refused to conclude that a request for one year off for a disability can never be a reasonable accommodation. Rather, the determination whether an accommodation is "reasonable" must be made on an individual case-by-case basis to decide whether the accommodation will be effective, and whether it would cause an undue hardship to the employer.

The Court interpreted the right to accommodations for disabilities under the New York City law even more broadly. It indicated that the New York City Human Rights Law requires employers to provide employees accommodations, rather than reasonable accommodations. As a result, the Court concluded that under New York City law employers must provide accommodations to disabled employees even if the accommodation will not allow the employee to perform the essential functions of their jobs. Rather, employers must provide any accommodation unless the employer can prove the accommodation it would cause it an undue hardship.

Accordingly, the Appellate Division sent Ms. Phillips' case back to the trial court to give her an opportunity to prove her disability discrimination and failure to accommodate claims.

In two previous articles, I discussed important rulings the Third Circuit Court of Appeals made in Erdman v. Nationwide Insurance Company regarding the Family & Medical Leave Act (FMLA). Specifically, that case rules that an employee's time worked from home counts toward the FMLA's 1,250 hour eligibility requirement if the employer knew or should have known the employee was working off-site, and that an employee who requests an FMLA leave is legally protected even if he never actually takes a leave. But Erdman also makes an important ruling regarding another employment law, the Americans with Disabilities Act (ADA).

The ADA is a federal law that prohibits employers from discriminating against employees on the basis of a disability. It includes a provision prohibiting employers from discriminating against individuals because they have a relationship or association with someone who has a disability. For example, it prohibits employers from discriminating against an employee who has a disabled child.

As Erdman notes, although the ADA requires employers to make reasonable accommodations to allow employees to perform the essential functions of their jobs, it does not require employers to accommodate employees who have a disabled relative. As a result, employers can refuse to provide an employee time off to care for a disabled relative without violating the ADA. Of course, doing so could violate the FMLA or a state law such as the New Jersey Family Leave Act.

However, the Third Circuit's decision recognizes that an employer would violate the ADA if it makes an employment decision because an employee has a disabled relative, rather than because the employee needs to take time off from work. As a result, an employee whose employer denies him the right to take time off for a disabled relative can establish a claim under the ADA if he can prove that his employer would not have fired him if he had requested the same time off for another reason.

The Court further recognizes that it is unlawful for an employer to fire an employee based on the belief that the employee might miss work to care for disabled relative at some point in the future. Erdman explains that such a decision would be based on "unfounded stereotypes or assumptions about the need to care for a disabled person." It is therefore a form of prohibited associational disability discrimination.

The decision notes other circumstances in which an employer would violate the ADA based on an unlawful assumption about an employee's disabled relative. For example, an employer would violate the ADA if it fires or otherwise discriminates against an employee (1) because of its assumptions regarding the relative's health care costs to the company; (2) because of its fear that the employee will contract or spread a relative's disease; or (3) because the employee is somewhat distracted by his relative's disability, but not so distracted that he cannot satisfactorily perform his job.

Today, President George W. Bush signed the ADA Amendments Act of 2008 into law. As previously discussed, the Act restores the original intent of the Americans with Disabilities Act of 1990 (the ADA), and is intended to increase protection for disabled employees from discrimination. Among other things, it substantially expands the definition of disability and greatly increases the number of disabled individuals who are protected against discrimination in employment and places of public accommodation. The ADA Amendments Act will go into effect on January 1, 2009.

The United States House of Representatives overwhelmingly approved the ADA Amendments Act of 2008 on June 25, 2008, and the United States Senate unanimously approved a slightly different version of the Act on September 11, 2008. The House of Representatives then approved the Senate's version of the Act on September 17. Later that day, the White House released the following statement:

The Americans with Disabilities Act of 1990 is instrumental in allowing individuals with disabilities to fully participate in our economy and society, and the Administration supports efforts to enhance its protections. The Administration believes that the ADA Amendments Act of 2008, which has just passed Congress, is a step in that direction, and is encouraged by the improvements made to the bill during the legislative process. The President looks forward to signing the ADAAA into law.

The passage of the ADA Amendments Act is an important victory for disabled employees. The ADA was originally passed in 1990 to protect disabled individuals against discrimination and to reduce disability discrimination in employment and in many accommodation places. Unfortunately, over the past 18 years courts have interpreted the ADA extremely narrowly, and rendered it largely ineffective. The Act reverses many of those narrow interpretations, and makes it clear that the ADA should be interpreted broadly to protect disabled employees.

On September 11, 2008, the Senate unanimously voted in favor of the ADA Amendments Act of 2008. If it were to become law, the Act would “restore the intent and protections of the Americans with Disabilities Act of 1990” (the ADA) by protecting many more disabled individuals from discrimination. The ADA is a federal employment law that prohibits discrimination against individuals with disabilities, both in the context of employment and places of public accommodation such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. However, the ADA has been interpreted so narrowly that the vast majority of cases brought under it are dismissed, primarily because the individuals suing are unable to meet the statute’s definition of “disability.”

As discussed in a previous article, on June 25, 2008 the United States House of Representatives overwhelmingly approved a slightly different version of the ADA Amendments Act, called the ADA Restoration Act. If the House of Representatives approves the Senate’s version of the Act, which seems likely, then the President would need to sign it into law before it would go into effect.

The ADA Amendments Act would reverse many United States Supreme Court cases which have interpreted the ADA narrowly and limited the scope of its protection. For example, it would amend the ADA to make it clear that:

• The ADA provides broad coverage to protect anyone who faces discrimination on the basis of a disability, and it should be interpreted broadly.


• An impairment is considered a disability if it substantially limits at least one major life activity, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.


• An episodic impairment or an impairment in remission is still a disability if it substantially limits a major life activity when it is active.


• It is improper to consider most “mitigating factors,” meaning measures such as medication, prosthetics, or other technology that reduce the impact of an impairment, when determining if an individual is disabled.


• The ADA prohibits employers from discriminating against employees based on the employer’s perception that the employee has a disability, even if the employee does not actually have a disability.

The lawyers of the employment law and civil rights law firm of Resnick Nirenberg & Cash, P.C., are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

House of Representatives Approves Amendments to Restore the Americans With Disabilities Act to Protect Disabled Employees From Discrimination.

On June 25, 2008, the United States House of Representatives approved an amendment to the Americans with Disabilities Act of 1990 ("ADA") by a vote of 402 to 17. The ADA is a federal law which prohibits discrimination against individuals with disabilities, both in the context of employment and places of public accommodation, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. However, courts have interpreted the ADA so narrowly that according to at least one study over 97% of cases filed under the ADA are dismissed, primarily due to the fact that the individual bringing the case could not meet the statute's definition of "disability."

The United States Senate still has not voted on the bill, which is known as the ADA Restoration Act of 2008. If the Senate were to approve the Act, it would need to be signed into law by the President before it would go into effect.

The ADA Restoration Act of 2008 is "intended to restore the original intent of the Americans with Disabilities Act." If passed into law, it would reverse many United States Supreme Court cases which have interpreted the ADA narrowly and limited the scope of its protection. For example, it would amend the ADA to make it clear that:

1. The ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of a disability, and its definition of disability should be interpreted broadly.

2. An impairment that substantially limits a major life activity, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working, does not need to limit another major life activity to be considered a disability.

3. An episodic impairment or an impairment in remission is still a disability if it would substantially limit a major life activity when it is active.

4. It is improper to take into consideration most measures that would reduce the impact of an impairment, such as medication, prosthetics, or other technology, when determining if an individual is disabled.

5. The ADA protects employees from discrimination if their employers discriminate against them because they perceive the employee to have a disability, even if the individual is not actually disabled.

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act ("GINA") of 2008. The statute had previously passed the Senate unanimously and the House by a 414 to 1 vote. Upon the President signing it, GINA went into effect immediately.

The Genetic Information Nondiscrimination Act prohibits discrimination on the basis of genetic information with respect to health insurance and employment. Congress passed it in recognition that there are great opportunities for medical advancement from sequencing the human genome and other genetic advances. However, those advances are threatened by the potential for employers and health insurance companies to misuse genetic information to discriminate. Congress noted the historical discrimination and oppression of individuals who were presumed to have genetic defects, specifically mentioning mental retardation, mental disease, epilepsy, blindness, and hearing loss in the statute. Congress also recognized the prevalence of genetic discrimination in the workplace.

As it applies to the context of the workplace, the Genetic Information Nondiscrimination Act makes it unlawful to use genetic information as a reason to refuse to hire or fire, or to discriminate against any employee with respect to compensation or other terms, conditions, or privileges of employment. It also prohibits employers from using genetic information to limit, segregate, or classify employees in a way that deprives employees of job opportunities, or otherwise adversely affects them. With limited exceptions, it also prohibits employers from seeking genetic information regarding an employee or a family member.

The Genetic Information Nondiscrimination Act also prohibits retaliation, by making it illegal to discriminate against anyone who opposes a violations of the Act. It also requires employers that have genetic information about an employee to maintain that information in a separate confidential medical file, and limits an employer's right to provide genetic information about an employee to anyone else.

GINA defines a "genetic information" to include a disease or disorder of an individual=s family member, as well as information revealed in an individual's genetic tests or genetic tests of an individual's family member, other than information about gender or age. It defines a "family member" very broadly, including any dependent, and any first, second, third, or fourth‑degree relative.

An individual who prevails in an employment case under the Genetic Information Nondiscrimination Act case potentially receive damages for lost salary and benefits, as well as emotional distress damages, attorneys fees, and costs of litigation. Like many other federal employment discrimination laws, an individual who has a claim under the Genetic Information Nondiscrimination Act must file a complaint with the United States Equal Employment Opportunity Commission ("EEOC") and receive the A "right to sue" before he or she can file a federal lawsuit.

Jonathan I. Nirenberg is an employment law and civil rights lawyer in New Jersey and New York.