Articles Posted in Disabled individuals

Lev Craig

This Monday, November 13, 2017, the U.S. District Court for the Northern District of Illinois granted the defendant’s motion for summary judgment in Richardson v. Chicago Transit Authority, in which plaintiff Mark Richardson alleged that his former employer, the Chicago Transit Authority (CTA), had violated the Americans with Disabilities Act (ADA) by terminating his employment because he was obese. The court held that, if not caused by an underlying physiological disorder or health condition, obesity in and of itself does not qualify as a disability under the ADA. As a result, Richardson was unable to show that he was disabled within the meaning of the ADA, and his ADA claim was dismissed.

Richardson began working for the CTA as a bus driver in 1999. In 2010, after Richardson took an extended medical leave, the CTA required him to undergo a medical exam and safety assessment before returning to work. At the time of the medical evaluation, Richardson weighed 594 pounds and, according to standardized height and weight medical guidelines, had a BMI of 82.8, meaning that he was medically considered to be “suffering from ‘extreme obesity.’” During the safety assessment, the CTA found that Richardson’s weight prevented him from complying with various CTA safety regulations; for example, Richardson could not perform hand-over-hand turning or stop “cross-pedaling”—having part of his foot on the gas and brake pedals at the same time—because of his size. The CTA later terminated Richardson’s employment, stating in a memo, “Based on the Bus Instructors [sic] observations and findings, the limited space in the driver’s area and the manufacturer [maximum allowable weight] requirements, it would unsafe for Bus Operator Richardson to operate any CTA bus at this time.”

By Edgar M. Rivera, Esq.

For those who follow The Harman Firm Blog, you may recall our article “Second Circuit Addresses Alcoholism Perceived Disability Claims Under NYCHRL,” in which we reported that the Second Circuit in Makinen v. City of New York certified the question of whether §§ 8-102(16)(c) and 8-107(1)(a) of the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism. Section 8-107(1)(a) prohibits discrimination based an actual or perceived disability. But in the case of alcoholism, § 8-102(16)(c) limits the applicability of the term “disability” to cover only employees who are recovering or have recovered from alcohol use disorder and are currently free from abuse. On October 17, 2017, the Court of Appeals of New York answered the certified question in the affirmative.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years and, during that time, were falsely accused of abusing alcohol by their respective former partners. Ms. Nardini’s former partner—also the father of her daughter—accused Ms. Nardini of abusing alcohol in the midst of a tumultuous breakup and ongoing custody battle, which led the NYPD to refer Ms. Nardini to its Counseling Services Unit, where she was diagnosed as suffering from alcohol abuse. She accepted treatment only under threat of suspension. Ms. Makinen was similarly referred to the NYPD’s Counseling Services Unit while embroiled in a custody dispute with her former husband. On multiple occasions, Ms. Makinen’s former husband and his family members alleged that Ms. Makinen drank excessively, drove while drunk, and abused her children. The Counseling Services Unit diagnosed Ms. Makinen—like Ms. Nardini—with alcohol dependence, and Ms. Makinen reluctantly agreed to attend a four-week inpatient rehabilitative treatment program to avoid disciplinary actions.  It is undisputed, however, that neither plaintiff was actually an alcoholic.

Owen H. Laird, Esq.

We recently wrote about two labor and employment law cases that will be heard by the United States Supreme Court in its current session: Janus v. American Federation of State, County and Municipal Employees and Encino Motorcars, LLC, v. Hector Navarro, et al. These cases, however, were not the only labor and employment law cases submitted to the Court for certiorari. The Supreme Court only takes a small fraction of the cases that are submitted to it each year, and, this year, the Court elected not to weigh in on several significant employment law cases. Because the Court decided not to hear the appeals, the decisions of the circuit courts in those cases will stand.  Two cases in particular, Stevens v. Rite-Aid Corp. and Bartels v. 402 East Broughton Street Inc., could have a significant impact on employees.

In Stevens v. Rite-Aid Corp., the Second Circuit addressed the question of what constitutes an essential job function for the purposes of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination in employment against a “qualified individual” on the basis of their disability. A “qualified individual” is defined as someone who, with or without reasonable accommodations, can perform the “essential functions” of their job. In short, employers may not discriminate against employees with disabilities that do not prevent job performance, but when an employee cannot perform the essential functions of the job, even with an accommodation, the employer can terminate the employee.

Lev Craig

The U.S. District Court for the Eastern District of Pennsylvania recently refused to dismiss Kate Lynn Blatt’s gender and disability discrimination claims in Blatt v. Cabela’s Retail, Inc. Blatt, a transgender woman, brought suit against her former employer under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), alleging that Cabela’s had discriminated against her based on her gender identity and her diagnosis of gender dysphoria.

Being transgender does not necessarily involve a diagnosis of gender dysphoria. Whereas a transgender person is someone whose gender identity differs from the sex that they were assigned at birth, gender dysphoria is a condition recognized by the American Psychological Association (APA), characterized by a “marked difference between [an individual’s] expressed/experienced gender and the gender others would assign [them],” which is present for at least six months and “causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”

By Harrison Paige

In Green v. Dallas County Schools, the Texas Supreme Court recently held that a Texas appeals court erred in its decision to overrule a trial court’s jury finding of disability discrimination. The state supreme court thus reversed and remanded the case back to the appellate court for additional deliberation.

Plaintiff Paul Green suffers from a congestive heart defect, which he treats with a diuretic medication whose side effects include urinary incontinence. Green was employed by the Dallas County School District (“DCS”) as a school bus aide and monitor, helping to transport children with special needs to and from school every day. At the start of his employment, he reported his heart condition, as well as his medication-related urinary incontinence, to his supervisor. Initially, Green had no problems, working easily with a bus driver who accommodated Green’s medical needs by stopping the bus at public places along the route to allow him to use the restroom as needed.

Lev Craig and Edgar M. Rivera, Esq.

Determining a school’s liability in a student suicide case is a fraught and complex issue: While plaintiffs argue that schools should make more significant efforts to prevent a student’s suicide—especially since many student suicides are caused by repeated incidents on school campuses, like severe peer bullying—courts have generally been reluctant to impose new or heightened duties on school counselors.

In 1991, the Maryland Court of Appeals in Eisel v. Board of Education of Montgomery County was the first court to hold that school officials may have a legal duty to try to prevent a student’s suicide. In Eisel, a wrongful death and survival action, a 13-year-old girl committed suicide after telling school counselors that she intended to kill herself.  Citing the in loco parentis doctrine—which requires a person or organization, such as a school, to take on some of the functions and responsibilities of a parent—the court concluded that “school counselors have a duty to use reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student’s suicidal intent.”

Lev Craig and Edgar M. Rivera, Esq.

When Philip Sullivan decided to apply for a warehouse job at Grisham Farm Products, Inc. (Grisham), he learned that Grisham required all applicants to complete a 3-page “Health History” as part of their employment application. This form asked applicants to respond to 43 questions concerning their medical histories, including whether they had consulted with a healthcare provider in the past 24 months or suffered from specific medical issues, such as heart conditions, depression, and sexually transmitted infections, among others.

As Mr. Sullivan has disabilities, he was worried that his answers would reveal them and thus negatively impact his chances in the hiring process; therefore, he decided not to apply for the job and instead contacted the Equal Employment Opportunity Commission (EEOC). The EEOC sued Grisham on his behalf, alleging violations of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The ADA prohibits employers from inquiring into a person’s medical history before making a conditional offer of employment, and GINA prohibits employers from requesting genetic information from job applicants.

Jennifer Melendez and Edgar M. Rivera, Esq.

Former Lowe’s employee, William Powell, sued Lowe’s Home Centers LLC, alleging that Lowe’s violated the Americans with Disabilities Act (ADA) by refusing to provide him an accommodation for his urinary incontinence.  Lowe’s terminated Powell’s employment after another employee caught him urinating near the store’s entrance. The ADA prohibits employers from terminating a qualified employee because of a disability, as well as refusing to make a reasonable accommodation to a known disability if the accommodation would not impose an undue hardship on the operation of the employer’s business.

Powell began working at Lowe’s on February 6, 2008 as a stocker. The record reflected that in fall 2010, Powell underwent prostate surgery, was taking medication for urinary incontinence, and had urinated in a colorant bottle in the paint department during his shift—for which Lowe’s placed him on probation for six months. The record also showed that in March 2010, Powell reported to Lowe’s that his doctor changed his medication and that he was “cured” of his incontinence, he never provided Lowe’s with a doctor’s note indicating that he needed extra bathroom breaks because of incontinence, and, notably, there was no evidence that Powell suffered from incontinence between the the time he urinated into the colorant bottle and when he was caught urinating near the store’s entrance.

Yarelyn Mena and Owen H. Laird, Esq.

Many employees might be surprised to learn that a determination by the Social Security Administration (“SSA”) can affect their right to benefits from a private pension plan. The Second Circuit has allowed pension plan administrators, depending on the language of the plan, to do just that.

In July 2005 Francy Ocampo applied for disability benefits under the Social Security Act after herniated disks prevented her from working. Ms. Ocampo worked as an office cleaner for more than 20 years, and was a member of the Services Employees International Union (“SEIU”), Local 32BJ. In December 2006, an SSA administrative law judge determined that Ms. Ocampo was disabled by the definition in the Social Security Act, defined as “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months,” and thus was eligible to receive disability benefits. In March 2007, the SSA notified Ms. Ocampo that she would receive disability benefits for five months.

Ciera Ambrose and Edgar M. Rivera, Esq.

Epilepsy is one of the most common and serious neurological disorders, affecting approximately 65 million people globally. Adult onset epilepsy is particularly devastating because developing a life-limiting disability at an advanced age is an incredibly stressful challenge—every day life activities require more time and effort, and there are new expenses to bear. The last thing that anyone needs during this time of vulnerability is an employer threatening to terminate employment. The Americans with Disabilities Act (“ADA”) prohibits discrimination in all forms against disabled employees, including qualified individuals living with epilepsy. The ADA provides comprehensive civil rights protections to individuals whose medical conditions interfere with life activities; however, employers often put their own benefits and conveniences ahead of those of their employees, resulting in violations of the ADA.

In Ward v. Grayson County, Texas, Marshall Ward, a Texas Sanitarian worker, alleged that Grayson County terminated his employment for symptomatology of adult onset epilepsy. Mr. Ward worked for Grayson County for over twenty years, when, in 2012, he experienced his first seizure. He alleges that in response, Grayson County placed him in the position of Eligibility Clerk, resulting in a substantial reduction in pay. In October 2013, Grayson County started to investigate Mr. Ward for “violating policies.” Shortly thereafter, he was terminated for allegedly staring at female coworkers’ breasts. Mr. Ward denied the allegation and had never been accused of inappropriate behavior of any kind during his twenty-year tenure. Mr. Ward claims that the accusation was pretext to terminate his employment because of his epilepsy. The case is pending in the Eastern District Court of Texas.