New Jersey Employment Lawyer Blog

In both New York and New Jersey, employers are required to provide reasonable accommodations to disabled employees to allow them to remain employed. A reasonable accommodation is a change or modification to the way your job is performed that allows you to remain employed despite having a disability. However, employers are not required to provide accommodations that would eliminate an "essential function" of the job.

Last month, the Court of Appeals for the Second Circuit ruled that although arriving at work on time is an essential function of most jobs, it is not an essential function of every job. The case, McMillan v. City of New York, was filed by Rodney McMillan. Mr. McMillan has a severe disability, schizophrenia. The medication he takes to treat his condition often makes him drowsy and sluggish. As a result, he is often unable to arrive at work until after 10 am. Nonetheless, he successfully worked as a case manager for the City of New York for almost 25 years.

However, New York City eventually disciplined Mr. McMillan because of his repeated lateness. In response, he requested reasonable accommodations including shifting his work hours back an hour, and allowing him to work during his lunch hour to "bank" time to make up for days on which he arrived late. NYC denied his request and eventually suspended him for 30 days without pay. Mr. McMillan then filed a disability discrimination lawsuit claiming NYC suspended him because he is disabled, and failed to accommodate his disability, in violation of the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYHLR) and the New York City Human Rights Law (NYCHLR).

The District Court dismissed Mr. McMillan's claim. It ruled that arriving at work on time was an essential function of Mr. McMillan's job. Accordingly, it found NYC was not required to grant the accommodations he requested since they would have eliminated an essential function of his job.

But on appeal the Second Circuit reversed the District Court's ruling. It explained that although courts should give significant deference to an employer's determination about which job functions are essential, that is only one factor a court should consider. For example, other relevant factors can include the written job description for the position, how much time the employee spends performing the job function, and the experiences of other past and present employees who have held the same or similar jobs with the employer.

The Second Circuit ruled that although arriving on time is an essential function of most jobs, it is not necessarily an essential function of every job. More specifically, it found unique facts about Mr. McMillan's job that make it less clear whether arriving on time was an essential function of his job. For example, his department has a flex-time policy that allows employees to arrive at work anytime between 9:00 and 10:00 a.m. without being considered late. In addition, NYC permitted Mr. McMillan to arrive after 10:00 a.m. when necessary for more than a decade. Accordingly, the Court ruled that it should be left to a jury to determine whether arriving on time was an essential function of Mr. McMillan's job.

Continue reading "Arriving on Time is Not an Essential Function of Every Job" »

Last month, the United States Department of Labor (DOL) clarified when a qualified employee can take a leave under the Family & Medical Leave Act (FMLA) to care for an adult child. As the Interpretation explains, the FMLA permits eligible employees to take up to 12 weeks off from work to care for a son or daughter who has a serious health condition. The FMLA defines a "son or daughter" to include a biological, adopted, or foster child, as well as a stepchild or legal ward. It applies to all children who are under 18 years old. It also applies to children who are at least 18 years old, but only if the child (1) has a disability; (2) is incapable of caring for him or herself due to the disability; (3) has a serious health condition; and (4) needs a parent to care for him because of the serious health condition.

1. The Adult Child Has a Disability

The DOL explained that the first requirement for qualified employees to take an FMLA leave to care for their adult child is the child must have a disability as defined by the Americans with Disabilities Act (ADA). Fortunately, the FMLA adopts the ADA's relatively new and much broader definition under the Americans with Disabilities Amendment Act (ADAAA). That definition includes any physical or mental condition that substantially impairs a major life activity. Major life activities include the ability to care for yourself, perform manual tasks, see, hear, eat, sleep, walk, stand, lift, bend, speak, breath, learn, read, concentrate, think, communicate, or work. As long as it substantially limits a major life activity, a disability can include a pregnancy-related condition or a condition that is episodic or in remission.

2. The Adult Child is Incapable of Self-Care

The second requirement for the FMLA to cover an adult child is the child must be unable to care for him or herself due to the disability. As the DOL explained, this means the son or daughter needs daily assistance or supervision to care for at least three "activities of daily living" or "instrumental activities of daily living." Activities of daily living include grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones, or using the post office.

3. The Adult Child Has a Serious Health Condition

The third requirement is that the adult son or daughter has a serious health condition. This means the adult child must have an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. As the DOL's Interpretation recognizes, although the FMLA's definition of a serious health condition is different from the ADA's definition of a disability, many conditions are both a serious health condition and a disability.

4. The Parent Needs to Care for the Adult Child Due to the Serious Health Condition

The final requirement for a qualified employee to be entitled to an FMLA leave to care for an adult child is the adult child must need the parent's care because of the serious health condition. This includes situations in which the parent needs to care for an adult son or daughter who is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor" due to a serious health condition. It also includes situations in which a parent needs to provide psychological comfort or reassurance to an adult child who has a serious health condition while receiving inpatient or home care.

Continue reading "Department of Labor Explains FMLA Leaves to Care for Adult Children " »

Last month, New Jersey's Appellate Division reversed a verdict of over one million dollars in a disability discrimination and retaliation case because the only evidence supporting the claim was inadmissible hearsay. Hearsay is basically when you try to prove something is true based on the fact that someone else said it was true outside of the courtroom. Hearsay generally is not admissible at a trial because it is considered untrustworthy. However, there are many exceptions to that rule.

The case was brought by Anthony Pace, who was a security guard for the Elizabeth Board of Education for more than 15 years. In 2003, Mr. Pace suffered a knee injury at work, and filed a worker's compensation claim. In 2006, the Board decided not to renew Mr. Pace's contract as part of a reduction-in-force. Mr. Pace then sued, claiming the Board's decision to lay him off was both disability discrimination and an act of retaliation because he filed a workers' compensation claim. A jury agreed with Mr. Pace and awarded him $147,630 for past lost wages, $427,370 for future lost wages, and $250,000 in punitive damages. He also was awarded $237,843 in attorney's fees and $7,708.84 to reimburse him for his litigation costs, bringing his total judgment to more than a million dollars.

The primary evidence to support Mr. Pace's claims were two witnesses who testified that a former member of the Board, Carol Cascio, told them the Board was trying to eliminate employees who had brought worker's compensation claims against it during the reduction-in-force. Both of the witnesses indicated that Ms. Cascio made those statements after she had left the Board.

However, in Pace v. Elizabeth Board of Education, the Appellate Division ruled that this evidence was inadmissible hearsay. In doing so, the court rejected numerous exceptions to the hearsay rule. For example, it found an exception for statements made by the opposing party did not apply since Mr. Pace did not sue Ms. Cascio personally so she could not be an opposing party. Similarly, it found an exception for statements by agents, employees and representatives of an opposing party did not apply because Ms. Cascio was no longer an employee of the Board when she allegedly made the statements. It also rejected an exception for statements that are against the speaker's interests because Ms. Cascio did not say anything that personally implicated herself in any wrongdoing. Likewise, it rejected other exceptions to the hearsay rule because there was no evidence the Board had authorized Ms. Cascio's statement, and no evidence it adopted her statement as its own. Ultimately, having found the only evidence of discrimination and retaliation was inadmissible hearsay, the Appellate Division overturned the jury's verdict.

Continue reading "New Jersey Court Reverses Million Dollar Award in Retaliation Case, Finding Jury Relied on Inadmissible Hearsay" »

Late last month, the New Jersey Appellate Division ruled that ExxonMobil Research and Engineering Company may have violated New Jersey Law Against Discrimination (LAD) when it fired an employee suffering from alcoholism after she failed a breathalyzer test. The LAD prohibits employers from discriminating against employees because they are disabled. Since alcoholism is a disability, it is illegal to fire an employee because he is an alcoholic. However, the LAD permits employers to fire employees if their disabilities, such as alcoholism, prevent them from performing their jobs or create a serious health risk.

The case, A.D.P. v. ExxonMobil Research and Engineering Company, involves an employee who voluntarily informed her employer, ExxonMobil Research and Engineering Company, that she was an alcoholic and was checking herself into an inpatient rehabilitation program. Based on company policy, ExxonMobil required her to stop from using any alcohol and to undergo random breathalyzer tests for two years. The company did this even though the employee had an exceptional performance history, and there was no evidence she was ever intoxicated at work or that her drinking interfered with her job in any way. When the employee eventually failed a breathalyzer test, ExxonMobil fired her. She then sued, claiming the company committed disability discrimination, in violation of the LAD.

The Appellate Division found there was direct evidence of disability discrimination. Specifically, a manager admitted ExxonMobil required the random drug testing pursuant to company policy because the employee revealed she is an alcoholic, rather than because of anything relating to her job performance. The Court found this policy to be discriminatory since it shows hostility toward alcoholics. Given this direct evidence of discrimination, the court ruled that ExxonMobil has the burden to prove it would have fired the employee irrespective of her disability. Usually the employee has the burden to prove discrimination.

The Court explained that companies have the right to fire employees whose disabilities prevent them from adequately performing their jobs. However, to establish this defense, a company needs to prove the particular employee could not perform her job. In this case, the court found no evidence that the employee was unable to perform her job despite her alcoholism.

The Court also explained that companies can fire employees whose disabilities create a serious health risk. But to establish this defense the company needs to prove, with a reasonable degree of certainty, there is a probability the employee's disability will cause a substantial injury to the employee or someone else in the workplace. To meet this test the employer has to show more than the fact that the employee has a specific disability. It has to prove the disability was likely to pose a safety risk with respect to the particular employee.

For more information, please see our previous article, When Can A Private Company Require Random Drug Testing in New Jersey?

Continue reading "Targeting Alcoholic Employees for Drug Testing Can Violate New Jersey Law Against Discrimination" »

The Third Circuit Court of Appeals recently ruled that the United States Equal Employment Opportunity Commission (EEOC) is entitled to subpoena a broad range of information during its investigations into possible violations of the Americans with Disabilities Act (ADA). The Third Circuit is a federal appellate court that handles cases that started in the District of New Jersey.

The appeal stems from an investigation the EEOC is conducting regarding Kroger grocery store's alleged violation of the Americans with Disabilities Act (ADA). The ADA prohibits companies from using tests when hiring employees if they "screen out or tend to screen out" disabled job candidates, unless the tests are "'job-related for the position in question" and "consistent with business necessity." Kroger uses a Customer Service Assessment test that was written for it by another company, Kronos Incorporated, to screen its job applicants. Kroger decided not to hire a job applicant, Vicky Sandy, after she scored poorly on that test. Ms. Sandy is hearing and speech impaired.

During its investigation into Ms. Sandy's disability discrimination claim, the EEOC sent a subpoena to Kronos seeking information about how the test impacts disabled job applicants. Kronos refused to respond to the subpoena. The EEOC then filed a motion to enforce the subpoena in federal district court. The district court eventually limited the information the EEOC was entitled to receive to information relating to the state in which Ms. Sandy applied and the job titles for which she applied during an 18 month period. In 2010, the Third Circuit reversed that decision, and removed those limitations. It then sent the case back to the district court to modify its order.

But the EEOC again disagreed with the order the district court issued, and appealed to the Third Circuit. This time, it objected to a limitation that it was only entitled to information from any research or studies about the test's impact on disabled individuals that Kronos "relied upon in creating or implementing the test for Kroger."

In Equal Employment Opportunity Commission v. Kronos, Inc., the Third Circuit again agreed with the EEOC. It explained that the EEOC is entitled to subpoena information during its investigations if it can show that (1) the investigation has a legitimate purpose; (2) the information requested is relevant to that purpose; (3) the EEOC does not already have the information it is requesting; (4) the EEOC has complied with its own administrative requirements; and (5) the information it requested is not unreasonably broad or burdensome. Applying that test, the court concluded that the EEOC was entitled to the information it was seeking whether or not Kronos specifically considered it with respect to the test it developed for Kroger. It therefore instructed the district court to remove that limitation from its order.

Continue reading "Third Circuit Recognizes EEOC'S Broad Power to Investigate Employment Discrimination Claims" »

Recently, a federal judge in the District of New Jersey allowed an employee to continue with his disability discrimination case, largely based on testimony that his boss told him he was "too sick" to do his job. The case, Estate of Fajge v. Dick Greenfield Dodge, Inc., was filed on behalf of Henry Fajge, a car salesman for Dick Greenfield Dodge.

The Facts of the Case

Before he started working for the dealership, Mr. Fajge had a history of mini-strokes (or transient ischemic attacks), coronary artery disease and hypertension, and had suffered a heart attack.
Three weeks after he started the job, he suffered another mini stroke. He was taken to the emergency room by ambulance, and remained in the hospital for five days before his doctor cleared him to return to work.

Within a week after he returned to work, the dealership had to call another ambulance for Mr. Fajge because he was not feeling well. After examining him, the paramedics concluded he was fine. According to Mr. Fajge, his boss called him at home the next day, and said he did not think he was strong or healthy enough to continue doing his job, and as a result they were going to have to "part company." Although his boss denied making that statement, he admitted he called Mr. Fajge to ask him how he was doing. When his boss was asked at his deposition if he calls other employees at home when they are out sick, he answered "No. But most employees don't like nearly drop over dead in front of me two times in a row in less than a month."

Approximately two weeks later, the dealership fired Mr. Fajge. It claimed it did so because of his job performance. For example, his supervisors testified that he wasted a lot of time in his office instead of trying to sell cars, and he was often on the internet, including occasionally looking at pornography at work.

Mr. Fajge then filed a lawsuit in which he alleged the dealership fired him because he is disabled, in violation of the New Jersey Law Against Discrimination (LAD). Unfortunately, Mr. Fajge passed away while the case was pending. However, his estate decided to pursue his discrimination lawsuit on his behalf.

The Judge's Ruling

Without deciding whether Mr. Fajge actually had a disability, the Judge found he was protected by the LAD because the dealership perceived him to be disabled. The LAD prohibits employers from discriminating against employees who they believe are disabled, whether or not they are actually disabled. The Judge also found there was enough evidence for a jury to find the dealership fired Mr. Fajge because it believed he was disabled. This includes Mr. Fajge's testimony that his boss said he did not think he was strong enough to perform his job, and his boss's testimony that Mr. Fajge twice nearly dropped dead in front of him. The Judge also relied on a company document that said it fired Mr. Fajge because of his "inability to work the hours required," and inconsistencies in the dealership's evidence about Mr. Fajge's supposed poor performance. The Judge's ruling paves the way for the case to go to trial, where a jury will decide whether the dealership fired Mr. Fajge because of an actual or perceived disability.

Continue reading "New Jersey Judge Allows Disability Discrimination Case to Proceed" »

A federal judge in New Jersey recently dismissed an employee's disability discrimination claim because she had signed an agreement shortening the statute of limitations to bring employment law claims against her employer. A statute of limitations is the deadline to file a lawsuit. Different legal claims have different statutes of limitations. For example, the New Jersey Law Against Discrimination ("LAD") has a two year statute of limitations, meaning employees working in New Jersey ordinarily have two years to file discrimination lawsuits against their employers under the LAD.

The Facts of the Case

Ann M. Gavin worked for AT&T Services, Inc. She had several problems and pain in her feet and legs that made it difficult for her to walk, including a stress fracture in her right knee, psoriatic arthritis, and pustular psoriasis on her heel. She asked AT&T for permission to telecommute as a reasonable accommodation for her disability. She eventually resigned because the company would not let her work from home five days per week. She then filed a disability discrimination lawsuit under the LAD.

However, in 2007 Ms. Gavin signed an employment application which included a "Waiver of Statute of Limitations for Employment-Related Claims." The waiver says that Ms. Gavin has to file any employment law claims against AT&T within 6 months after she knew or should have known she had a discrimination claim against the company. Her employment application also says it must be interpreted under Illinois law.

The Court's Ruling

Based on the waiver provision in Ms. Gavin's employment application, in Gavin v. AT&T Services, Inc. the District Court dismissed her claim under the LAD because she waited more than 6 months after she resigned to file her lawsuit. Applying Illinois law, the court rejected Ms. Gavin's argument that her employment application was not a contract, even though it expressly says it is not intended to create an employment contract. The Court also ruled that Illinois law does not prevent agreements that shorten a statute of limitations, as long as the shorter period is reasonable.

Fortunately, this decision is not a binding precedent, and does not interpret New Jersey Law. However, it still is concerning since it encourages companies to require employees to shorten the time to file employment discrimination lawsuits. This is a potential problem since employees often have little or no choice but to sign anything the company requires for them to get hired. However, shortening the deadline to bring a discrimination lawsuit would cause many employees to lose their right to file a lawsuit, since they often do not know or remember what they signed when they were hired. It also would discourage employees from trying to negotiate employment law claims before they have to file lawsuits, since they would have much less time to attempt to negotiate.

The Lesson of the Case

It is almost always a good idea to discuss your potential employment law claims with an employment lawyer sooner than later. Even when the statute of limitations is not an issue, there are other advantages to acting quickly. For example, there are sometimes ways to resolve disputes with your company before you get transferred, disciplined or fired. Further, the longer you wait to assert your legal rights, the more likely key witnesses will have moved out of state or their memories will have faded. Contact the Nirenberg Law Firm if you have experienced discrimination, harassment, or retaliation at work in New Jersey or New York.

Last month, New Jersey's Appellate Division dismissed an employee's discrimination lawsuit because the New Jersey Division on Civil Rights (DCR) had already dismissed the employee's case. That employee, Francis Cornacchiulo, was a senior vice president for Alternative Investment Solutions. Mr. Cornacchiulo has multiple sclerosis. Alternative fired him after he apparently started experiencing symptoms of his disability at work. He then filed a disability discrimination claim with the United States Employment Opportunity Commission (EEOC). When Mr. Cornacchiulo submitted additional information to the EEOC, he marked a box agreeing to jointly file his claim with the DCR.

The EEOC eventually told Mr. Cornacchiulo it was "unable to conclude that the information establishes a violation of federal law." The DCR then wrote a letter to Mr. Cornacchiulo indicating that since the EEOC had closed its file, it the "a determination has been made" and the DCR was closing its file on the same basis. It did so even though there are important differences between federal and state employment laws, and the DCR had previously informed Mr. Cornacchiulo that, on request, it will review whether the EEOC's conclusions are consistent with New Jersey law.

After Mr. Cornacchiulo received the letter from the DCR, he filed a lawsuit in a New Jersey state court, claiming Alternative fired him because of his disability in violation of the New Jersey Law Against Discrimination (LAD). Several weeks later, the DCR sent a letter to Alternative's lawyer stating it was adopting the EEOC's conclusion and closing Mr. Cornacchiulo's case. However, the agency never told Mr. Cornacchiulo it had adopted the EEOC's conclusion.

Alternative then asked the court to dismiss Mr. Cornacchiulo's lawsuit based on the DCR's finding. In the meantime, Mr. Cornacchiulo's lawyer attempted to withdraw his claim from the DCR.

On June 19, 2012, in Cornacchiulo v. Alternative Investment Solutions, L.L.C., the Appellate Division ruled that Mr. Cornacchiulo could not pursue his disability discrimination claim in court. The court explained that under the LAD an employee has the option of pursuing a discrimination claim either through the DCR or in court. It also noted that when someone files a case with the DCR, he/she has the option of withdrawing it and filing a private lawsuit. However, he/she has to do so before the DCR reaches its final determination. This is different from determinations by the EEOC, which are not considered final and do not bar a subsequent discrimination lawsuit.

Based on its analysis, the Appellate Division found that the lower court properly dismissed Mr. Cornacchiulo's lawsuit. It rejected Mr. Cornacchiulo's arguments based on the fact that he did not realize he had marked the box to file his claim in the DCR, the EEOC's form did not warn him of the potential consequences of jointly filing with the DCR. The court ruled that once the DCR reached its final determination, Mr. Cornacchiulo lost his right to bring a separate lawsuit claiming Alternative fired him because he is disabled. However, he still has the option to appeal the DCR's decision.

The Lesson of the Case

Perhaps the biggest lesson of the Cornacchiulo case is how important it is to speak to an employment lawyer before pursuing your legal rights. For example, although there are some circumstances where it might make sense to pursue a claim through the EEOC or the DCR rather than filing a lawsuit, you should discuss your options with an attorney before you decide which option is best for you.

Continue reading "Discrimination Case Dismissed Because Employee Filed Claim with New Jersey Division on Civil Rights" »

Last week, the United States Equal Employment (EEOC) answered questions about when requiring a high school diploma violates the Americans with Disabilities Act. The EEOC provided this information because it created confusion last November when it issued an informal letter discussing how the ADA applies to standards for job qualifications.

Specifically, in November 2011 the EEOC issued a letter which indicates that an employer would violate the ADA if it rejected a job candidate because he does not have a high school diploma if a disability prevented the job candidate from graduating from high school, unless the employer proves the diploma requirement "is job related and consistent with business necessity." The letter also indicates that an employer would "not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma." The EEOC received substantial backlash to its position, including many who claimed it had created a disincentive to graduate from high school.

The EEOC's article last week clarifies that the ADA does not prohibit employers from requiring job applicants to have high school diplomas. Rather, under limited circumstances a company might have to allow a job candidate to show he is qualified for the job if a disability made prevented him from graduating from high school. For example, an individual who could not graduate from high school because of a disability might prove he is qualified for a job by showing his work experience in similar jobs.

The EEOC's article also makes it clear that employers are not necessarily required to hire a job candidate who is disabled. Companies have the right to select the job candidate who is best qualified for the job.

What is still unclear is whether the employer or the employee has the burden of proof when a company rejects a job candidate whose disability prevented him from graduating from high school. The EEOC's November letter indicates that employers must demonstrate that a high school diploma is necessary for the job. However, its February article indicates that the disabled employee has to prove he is qualified for the job even though he did not graduate from high school. It seems likely the EEOC originally intended to place the burden on the employer, but changed its mind in response to the backlash it received last November.

Continue reading "EEOC Explains When Employers Violate ADA By Requiring High School Diploma" »

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" »