New York Employment Attorney Blog

The ADA Amendments Act of 2008 ("ADAAA") amended the Americans with Disabilities Act to expand the definition of "disability," which had been limited over the years by court decisions. In enacting the ADAAA, Congress specifically rejected United States Supreme Court interpretations of the meaning of the term "disability." The result of the ADAAA was to make it easier for individuals with impairments to demonstrate that they satisfy the definition of "disability."

On May 15, 2013, the Equal Employment Opportunity Commission ("EEOC") revised its guidance as it relates to several types of impairments, namely, cancer, disability, epilepsy, and intellectual disabilities. As stated by the EEOC Chair, Jacqueline A. Berrien, "Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability. Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."

Continue reading "EEOC Issues Revised Guidance on Specific Disabilities" »

The U.S. Equal Employment Opportunity Commission (EEOC) has scheduled a meeting for May 8, 2013 at its main headquarters in Washington, D.C., to address whether employer wellness programs may implicate, among other things, the confidentiality and permissible inquiry provisions of the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GENDA), and other statutes enforced by the EEOC.

Last week, on March 4, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), reaffirmed the importance for an employer to conduct a fact-specific analysis in considering requests for reasonable accommodation under the Americans with Disabilities Act (ADA).

In McMillan v. City of New York, it was undisputed that McMillan's disability necessitated treatment that prevented him from arriving to work at a consistent time each day. The Second Circuit noted that although in most contexts, timely arrival at work is considered an essential function of the job, which could render futile any attempts to reasonably accommodate the situation, it was not at all entirely clear whether timely arrival at work was an essential function of McMillan's job. Under McMillan's circumstances, he could offset the time missed with additional work hours in order to complete the essential functions of his job.

Ultimately, McMillan sued the City under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law, alleging among other things that because the office remained open until 10:00pm, and he often worked past 7:00pm, he would still be able to arrive late and work the requisite number of full time hours per week.

Continue reading "Second Circuit Holds that Timely Arrival to Work Is not Always an Essential Function of the Job Under Disability Discrimination Laws" »

On December 17, 2012, the United States Equal Employment Opportunity Commission ("EEOC") approved its Strategic Enforcement Plan for Fiscal Years 2013-2016 ("SEP"). The SEP establishes priorities and integrates all components of the EEOC's enforcement. In so doing, the SEP adopted the following national priorities:

1- Eliminating Barriers in Recruitment and Hiring. The EEOC intends to target class-based recruitment and hiring practices that discriminate on the basis of race, ethnicity or national origin, religion, age, gender (women), and disability.

2- Protecting Immigrant, Migrant and Other Vulnerable Workers. Among other things, the EEOC intends to target disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting those workers who may not be aware of their rights to equal employment opportunity, or are otherwise reluctant to exercise them.

3- Addressing Emerging and Developing Issues.

4- Enforcing Equal Pay Laws. The EEOC will continue to target compensation disparities and practices in the area of gender or sex discrimination.

5- Preserving Access to the Legal System. The EEOC will scrutinize policies and practices that have the effect of discouraging employees from seeking relief under the applicable employment discrimination statutes.

6- Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

Continue reading "EEOC Approves Strategic Enforcement Plan for 2013-2016" »

The Americans with Disabilities Act ("ADA") requires that employers consider possible reasonable accommodations that would permit disabled employees to perform the essential functions of their jobs. According to to the ADA, a reasonable accommodation could include a reassignment to a vacant position. In Equal Employment Opportunity Commission v. United Airlines, Inc. (No. 11-1774), the United States Court of Appeals for the Seventh Circuit considered United Airlines' guidelines for transferring employees in light of the ADA's requirements. United Airlines' guidelines specified that its employee transfer process was competitive, so that an employee in need of accommodation would not be automatically assigned to a vacant position, but would be given preference over similarly situated applicants. The Equal Employment Opportunity Commission ("EEOC") challenged the policy under the ADA. Although the district court ruled in United Airlines' favor, the Seventh Circuit reversed and held that the ADA does, in fact, mandate that an employer reassign employees with disabilities to vacant positions for which they are qualified, provided that the such accommodations would be ordinarily reasonable and not present an undue hardship to that employer.

On August 26, 2011, the United States Equal Employment Opportunity Commission ("EEOC") filed a civil action against Ford Motor Company on behalf of a former employee, alleging that the company failed to provide a reasonable accommodation to the employee and ultimately fired her because of her disability.

The company maintained a telecommuting program for its employees. When the employee, Jane Harris, attempted to avail herself of the program as a result of her gastro-intestinal condition, the company refused her request. Thereafter, the company began criticizing her performance, placed her on a performance plan, and fired her after she complained that the company had failed to accommodate her medical condition.

Continue reading "EEOC Sues Ford Motor Company For Disability Discrimination" »

Today, Governor David Patterson signed into law, the New York Domestic Workers Bill of Rights, which reflects the first sweeping domestic workers' rights legislation in the nation.

Among other things, the New York law provides for overtime pay to domestic workers, and protection against workplace discrimination and harassment based upon race, gender, sexual orientation, national origin, disability, marital status and domestic victim status. The legislation specifically addresses sexual harassment, which is cited as a major problem for domestic workers in New York.

On January 6, 2010, the Equal Employment Opportunity Commission ("EEOC") released data concerning charges of discrimination filed with the agency in FY2009. The EEOC resolved a record number of charges alleging harassment and violations of Title VII of the Civil Rights Act. FY2009 saw the second highest number of charge filings nationwide, 93,277 --just about 2,000 filings less than the record high set for FY2008.

Continue reading "EEOC Releases 2009 Charge Statistics" »

On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 ("ADAAA") into law. As stated in prior blog entries, the amendment makes substantial changes to the Supreme Court's restrictive readings of disability discrimination protections.

Continue reading "Americans with Disabilities Act Amendments Act of 2008 Becomes Law" »

On September 17th, the United States House of Representatives passed the Senate version of the Americans with Disabilities Amendments Act ("ADAA"). The bill has now been sent to President Bush, who states that he will sign it. The amendments reflect the broadest changes to the Americans with Disabilities Act ("ADA") since its enactment in 1990.

Continue reading "House Passes Senate Version of ADA Amendments Act" »

In June 2008, the House of Representatives passed the ADA Amendment Act of 2008. (See Proposed Amendments to ADA Restore Disability Discrimination Protections, June 28, 2008.) Yesterday, the Senate unanimously passed its own version of the ADA Amendment Act. A conformed version will be submitted to the President for signature within the next several weeks.

Continue reading "Senate Passes ADA Amendment Act of 2008" »

Under the American Disabilities Act (ADA), it is a violation of an employee’s federally protected rights for an employer not to make reasonable accommodations for known physical or mental limitations of an employee, or job applicant, who is otherwise a qualified individual. 29 C.F.R. § 1630.9(a). The ADA requires that an employer engage in an interactive process with an employee to determine the extent of a reasonable accommodation that will permit an employee to perform the essential functions of a job. The United States Court of Appeals for the Second Circuit recently ruled in Brady v. Wal-Mart Stores, Inc. that an employer’s duty to make a reasonable accommodation is triggered when it knows or has reason to know that an employee suffers from a disability, and not just when an employee provides notice of a disability or requests an accommodation. The Second Circuit covers New York, Vermont and Connecticut.

Continue reading "Employer has a Duty to Accommodate an Employee with an Obvious Disability Even Where the Employee Does not Expressly Ask for Such Accommodation " »

Introduced and passed, 402 to 17, in the House of Representatives, the ADA Amendment Act of 2008 is geared to the restoration of the intent and protections of the American with Disabilities Act of 1990 (ADA). Operating from the position that “physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society,” Congress passed the ADA with the intent to broadly eliminate “prejudice, antiquated attitudes, [and] the failure to remove societal and institutional barriers” that have frequently precluded persons with disabilities from fully engaging in society. Plainly put, the ADA Amendment Act will restore protections against disability discrimination to a broader range of individuals.

Continue reading "Proposed Amendments to ADA Restore Disability Discrimination Protections" »