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Articles Posted in Disability Discrimination

Earlier today, New Jersey’s Appellate Division ruled that an employee is entitled to a trial to determine whether her employer fired her because it incorrectly perceived she was unable to perform her job due to an actual or perceived disability, obesity. The case largely turns on whether the employer’s physician relied on an accurate description of the physical requirements of her job.

New Jersey school sued for disability discriminationBarbara Sheridan worked as a custodian for the Egg Harbor Township Board of Education. Egg Harbor was concerned whether Ms. Sheridan could perform her job based on the fact that she was short of breath and her face was flushed after she performed certain more strenuous job duties. The school district also was concerned that Ms. Sheridan was unable to climb ladders, had trouble climbing stairs, and was a risk that she would injure herself or otherwise performing her job duties.

The school district sent Ms. Sheridan for a fitness for duty exam with an independent physician, who concluded she physically was incapable of performing all of her job duties. Relying on those conclusions, the school board fired Ms. Sheridan.

In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Judge Ruling in Disability Discrimination CaseDirect evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.

The New Jersey Appellate Division Court recently considered the standard for discharging an employee based on a “perceived disability,” and in so doing reversed a grant of summary judgment to the defendant. In Grande v. Saint Clare’s Health System, the Court applied the standard established in 1998 in Jansen v. Food Circus Supermarkets, Inc., which provides that in evaluating whether an employee can remain in a position despite having a disability, the standard is “whether the handicapped person can do his or her work without posing a serious threat of injury to the health and safety of himself or herself or other employees.”  This “requires the employer to conclude with a reasonable degree of certainty that the handicap would probably cause such an injury” before it can fire an employee.  According to the Court, in determining whether the employee “poses a materially enhanced risk of serious injury . . . [p]robability, not mere possibility, is key.”

In this case, the plaintiff, Marianne Grande, worked as a nurse for the defendant employer, St. Clare’s Health System, for approximately ten years. During her last three years of employment, she suffered three injuries at work, two injuries to her shoulder and one to her back.  Following her back injury, she took family and medical leave followed by personal leave.  While on leave, the plaintiff’s physician cleared her to return to work full time without any restrictions.  Despite such clearance, the defendant required her to participate in a “functional capacity evaluation test,” to assess her ability to, for example, lift certain objects and move in certain ways.  In her role as a nurse, she worked with stroke victims and sometimes was required to move patients.

Hospital sued for disability discriminationWhen the evaluation was completed, it provided for some restrictions.  At this time, the plaintiff’s doctor allowed her to return to work in accordance with the restrictions set forth in the hospital’s evaluation.  That same day, however, the hospital discharged the plaintiff indicating it could not accommodate her disability given the restrictions set forth in the evaluation. Approximately one month after her discharge, the plaintiff’s doctor cleared her to return to work, again without restrictions.  Notwithstanding such clearance, the hospital declined to rehire her.

A recent employment law case from the District of New Jersey demonstrates that you might be entitled to time off from work for a disability under the New Jersey Law Against Discrimination (“LAD”) even if you are not protected by the Family & Medical Leave Act (“FMLA”).

Colleen Pizzo worked as a custodian for the Lindenwold Board of Education. Ms. Pizzo suffers from bipolar depression. She took several days off from work for depression after her girlfriend and coworker died in February 2012. A few months later she took approximately 6 weeks off for depression pursuant to the FMLA. She continued to take additional time off due to her depression after she returned from that medical leave.

Depressed businesswoman denied reasonable accommodation for disabilityBy March 2013, Ms. Pizzo had taken 12 weeks of FMLA leave during the previous 12 months. She asked the Board to allow her to use “sick bank,” meaning sick leave donated by her coworkers, so she could take time off for “work-related stress.” The Board ignored her request.

A recent disability discrimination opinion from the District of New Jersey reflects the relatively low burden an employee has to meet to have his case decided by a jury.

Damian Melton, a Type I diabetic, worked as a doorperson for Resorts Casino Hotel in Atlantic City for approximately six years.  Due to his medical condition, Resorts granted Mr. Melton an intermittent leave under the Family & Medical Leave Act (FMLA), and did not require him to work the graveyard shift as a reasonable accommodation for his disability.

Hotel Doorman Disability DiscriminationIn August 2010, Mr. Melton injured his shoulder, necessitating surgery.  When he returned to work a few months later the hotel assigned him to a light duty job as a valet cashier.

The Americans with Disabilities Act (ADA) is a federal law that prohibits employers from discriminating against employees because they are disabled.  It defines a “disability” as a physical or psychological impairment that substantially limits a major life activity.  As a result, not every impairment is a disability.  In contrast, the New Jersey Law Against Discrimination (LAD), the New York Human Rights Law (NYHRL) and the New York City Human Rights Law (NYCHRL) all have significantly broader definitions of the term “disability” including relatively minor mental and physical impairments.

in officeLate last month, the Second Circuit Court of Appeals recognized that an impairment that prohibits an employee for sitting for too long can be a disability even under the ADA.  The employee, Carmen Parada, worked for Banco Industrial de Venezuela, C.A.  Approximately six months after she started working for the bank, Ms. Parada fell and hurt her back.  As a result, she no longer is able to sit for a prolonged period.  According to one of her medical reports, she is able to sit for only 15 minutes before she has to stand.

Ms. Parada asked the bank for an ergonomic chair which she believed would have allowed her to perform her job.  The bank did not respond to her requests so she asked again, this time offering to pay for the chair herself.  When she still did not receive any response she told the bank she could not continue to perform her job without a new chair.  When the bank’s Operations Manager finally told Ms. Parada he would discuss her request when he returned from a business trip she complained to the Compliance Officer and requested a leave of absence.  Ultimately, the bank fired Ms. Parada, claiming she failed to provide sufficient documentation to prove she was disabled and needed a medical leave, and declaring it considered her to have abandoned her job. 

Earlier this month, a federal judge in New Jersey ruled that Bryan Maher can proceed with numerous employment law claims against his former employer, Abbott Laboratories.

Mr. Maher began working for Abbott in June 2008 as a Senior Distribution Specialist. In 2009, his sales numbers declined. By June the company began requiring him to participate in weekly one-on-one telephone coaching sessions. It also received several complaints from Mr. Maher’s customers. By late August 2009, the company placed Mr. Maher on an informal coaching plan and warned him he could be fired if his sales did not improve.

Disability discrimination -heart issue.jpgIn October 2009, Mr. Maher was diagnosed with atrial fibrillation (an irregular heartbeat) which was exacerbated by workplace stress. The company granted his request to take four days off from work for testing.

Is Obesity a Disabilty in NJ or NY.jpgLast month the American Medical Association (AMA) voted to designate obesity as a disease. More specifically, it adopted a resolution which states that obesity is a disease that leads to other conditions such as Type 2 diabetes and cardiovascular disease. As a result of the AMA’s decision, it is likely that more employees who are fired, demoted, harassed, or otherwise treated worse at their jobs because they are overweight will be legally protected by both New Jersey and New York law.

Both the New Jersey Law Against Discrimination (LAD) and the New York Human Rights Law (NYHRL) prohibit employers from discriminating against employees on the basis that they are disabled. The two laws define the term “disability” broadly to include both physical and mental disabilities. Neither statute limits its definition to severe or permanent medical conditions. In particular, the LAD defines disability to include any “physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy and other seizure disorders.” Similarly, the NYHRL’s definition to mean a physical or medical impairment “resulting from anatomical, physiological or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques.”

Over a decade ago, in Viscik v. Fowler Equipment Co., the New Jersey Supreme Court concluded that an employee’s obesity can be a disability under the LAD, but only if it is “morbid.” Obesity is considered “morbid” if it prevents you from engaging in normal activities. In Viscik, the Court found the employee who filed the lawsuit was disabled because her obesity caused her other medical conditions including arthritis, a heart condition, obstructive lung disease and knee problems that limited her ability to walk. The court concluded this met the LAD’s definition of a disability.

Likewise, in Delta Air Lines v. New York State Division of Human Rights, a 1997 case, the New York Court of Appeals ruled that simply being overweight is not a disability under the NYHRL. However, it distinguished another case in which the company’s doctor concluded the employee was unable to perform her job because she was “grossly obese,” a diagnosed medical condition that impaired her ability to work. Thus, like the New Jersey Supreme Court, in the past New York’s highest court required an individual’s obesity to cause an illness, impairment or limitation before it can be considered a disability under the NYHRL.

But at least arguably, today the analysis could be much simpler. Since the AMA has deemed obesity itself to be a disease, it seems to fit within the LAD’s definition of disability as long as being overweight can be considered a form of malformation or disfigurement. Likewise, it seems to fall within the NYHRL’s definition since it is a physical or medical condition resulting from an anatomical condition that can be demonstrated by medically accepted clinical techniques.

Of course, how much this change actually will impact disability discrimination law is an issue that eventually will be decided by the courts. The bottom line is that the AMA’s new resolution could help extend protection against disability discrimination to additional employees who previously were not legally protected.

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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.

Employee whispering secret to businessman.jpgThe 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.

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bigstock-Answer-sheet-8013079.jpgThe 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.

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