Beranbaum Menken LLP has filed a disability discrimination lawsuit in federal court on behalf of Grant Fox, a disabled veteran suffering from post-traumatic stress disorder (“PTSD”) stemming from his lengthy military service. Fox alleges that his rights were violated when his employer failed to provide him with a reasonable accommodate to his disability as required by federal, state and local law, when his boss would not allow him to receive treatment during work hours for his PTSD and also would not adopt certain supervisory techniques to avoid triggering his PTSD. Fox was eventually fired and alleges that his termination was discriminatory. The case is Fox v. Adaptive Management, Inc. et al, 19-cv-7204 (JPO) and is being handled by Scott Simpson.
Pregnant women working in New York City have a right to receive a workplace accommodation, such as more frequent bathroom breaks, rest breaks for workers who stand, help with manual labor, or a period of recovery from childbirth. But pregnant women in the rest of the state – and most of the country – aren’t so lucky. Hopefully, that’s changing. The U.S. Equal Employment Opportunity Commission (“EEOC”) just issued a Guidance that’s a step in the right direction. While the guidance isn’t new law, it is significant and has persuasive power in court.
Why is this issue so complicated? Why aren’t pregnant women protected under current federal law? Because there’s some confusion in the courts as to whether pregnancy is always a “disability” under the ADA, and if not, whether the Pregnancy Discrimination Act requires employers to make actual accommodations to pregnant women, rather than just refrain from firing them.
In Young v. UPS, the Fourth Circuit Court of Appeals considered UPS’s policy of allowing people with disabilities to receive “light duty” accommodations. But UPS did not give the same accommodations to pregnant women who were temporarily unable to lift heavy items. The court decided that this policy was entirely legal. It didn’t discriminate against women who were pregnant – in fact, it treated all non-disabled people the same, pregnant or not pregnant, and that this is all the Pregnancy Discrimination Act requires.
The case has been appealed to the Supreme Court, which will decide it in the next term. The question is: is it discriminatory to treat pregnancy differently from other conditions that have the same requirements (like, heavy lifting restrictions).
The EEOC issued its Guidance two weeks after the Supreme Court agreed to hear the case. The timing is interesting – is the EEOC trying to influence the Court? Who can blame them? The EEOC is, after all, the federal agency charged with enforcing and interpreting the Pregnancy Discrimination Act, and if there was ever a time to make clear what the agency thinks, that time is now.
In its Guidance, the EEOC left no doubt that it reads the PDA to mean that an employer must accommodate a pregnant employee in the same way it accommodates non-pregnant employees with the same work limitations. That means, according to the EEOC, Young should be reversed because the PDA requires UPS to give Peggy Young the same kind of light duty works that it gives non-pregnant employees injured on the job or considered disabled.
The EEOC Guidance also clarified that many pregnancy-related conditions are considered “disabilities” under the ADA, especially after Congress amended the ADA in 2008 to expand the definition of “disability.” The EEOC Guidance lists any number of pregnancy-related conditions that might require some form of accommodation or modified work arrangement, including sciatica, cardiovascular issues, post-cesarean complications, swollen legs that limit walking ability, post-partum depression, and even morning sickness.
The EEOC Guidance is a great sign for pregnant women. The spate of recent anti-worker rulings coming from the Court means we shouldn’t expect much help from them. Despite the literal words of the statute saying pregnant women must be treated like everyone else, the Court is likely to rubber stamp company policies that treat pregnant women differently from other workers with similar work restrictions. But the EEOC gives us a path forward anyway – we can still push for accommodations for pregnant women under the ADA.
And that’s important. Because without accommodations – without some recognition that being pregnant affects women’s bodies in profound ways that may affect their ability to work in the exact same manner as non-pregnant people – women will continue to be pushed out of the workforce, or to simply never even try to make it in careers that won’t accommodate slight modifications for an aching back or morning sickness.
The Second Circuit recently reaffirmed the requirements of the Americans with Disabilities Act ("ADA"). As a general rule, individuals with disabilities are entitled to "reasonable accommodations" so long as they can perform the "essential functions" of their job. For example, if someone who is blind is a great computer programmer -- and can do all the things computer programmers can do, so long as he has a minor accommodation (like a text-to-voice software) -- then he is protected by the ADA. Employers often like to claim that virtually everything an employee does is an "essential function" of their job. However, courts are not so quick to take the employer's version of events. In determining whether something truly is an "essential function," the courts look to job descriptions as well as the actual circumstances of the person's employment. Simply saying that something is "essential" after being sued isn't sufficient to get an employer off the hook in a disability discrimination lawsuit. As the Second Circuit quoted, "A court must avoid deciding cases based on unthinking reliance on intuition about the methods by which jobs are to be performed."
In the case McMillan v. City of New York, the employee worked for the City of New York for 25 years, despite suffering from schizophrenia. His condition was manageable so long as he took medication. However, the medication made him drowsy in the mornings and thus made it difficult for him to arrive to work on time. The question was then -- is arriving to work on time an essential function of McMillan's job? If he's allowed to come in at 11:00 sometimes (i.e., if he receives this reasonable accommodation), then is he still performing the essential duties of his job?
The lower court held that, because McMillan's disability prevented him from coming to work on time, he was not able to perform the essential functions of his job. However, the Second Circuit reversed, telling the lower court that it had to look at the facts more closely. In this situation, the City had a "flex time" system, whereby workers could come in somewhere between 9:00 and 10:00, and aren't considered "late" unless they arrive after 10:15. So, if workers have a one-hour window of discretion in deciding when to get to work, is being on time really an "essential function" of their job? Moreover, McMillan's "lateness" extended only to about 11:00, making him only 45 minutes later than the official cut off time. Also, he would make up the work later in the day, to ensure that he was putting in as much time as he was required.
Of course, the case is not over. The lower court was ordered to reconsider the question of "essential functions" in light of the circumstances of the case. However, the Second Circuit did reaffirm that courts can't just take an employer's word about what job duties are "essential." While it might be nice to have all workers show up at 10:15 every day, if it's not necessary for the job to be performed properly, it shouldn't prevent otherwise qualified individuals from getting a job just because they have a disability.
In 2008, Congress amended the Americans with Disabilities Act (“ADA”) to overturn a series of U.S. Supreme Court cases that set an exceedingly high bar for people with physical and mental impairments to prove that they had a “disability” protected from discrimination. By amending the ADA, Congress directed the courts to focus less on whether an individual with a medical impairment met the technical definition of “disability,” and more on fulfilling the ADA’s purpose to eradicate discrimination against people with disabilities. And, as recognized by Congress, one of the ADA’s most powerful tools to eliminate disability discrimination is the duty of an employer to reasonably accommodate an employee’s physical or mental impairment. A reasonable accommodation is a modification to the workplace enabling a disabled employee to perform the essential functions of his or her job. An accommodation might be something as simple as raising the height of a desk to allow an employee’s wheelchair to fit underneath or more complicated modifications, such as eliminating non-essential job duties; a part-time or modified work schedule; reassignment to a vacant position; and providing readers and interpreters. The only restrictions upon an employer’s duty to accommodate its workers’ disabilities are that the modification must not impose an “undue hardship” upon the employers (in terms of expenses or organizational change), and the employer need not eliminate the essential functions of the job in question.
The obligation to provide reasonable accommodations applies equally to employees with psychiatric disabilities as it does to employees with physical disabilities. The types of accommodations that an individual with a mental disability needs, however, might not be as obvious.
Boston University’s Center for Psychiatric Rehabilitation has identified some of the difficulties that individuals with psychiatric disabilities face in doing their jobs. These difficulties include:
• Screening out environmental stimuli; • Sustaining concentration; • Maintaining stamina and pace; • Tolerating stress; • Handling time pressures and multiple tasks; • Interacting with others; • Responding to negative feedback; and • Responding to change.
The Center for Psychiatric Rehabilitation, as well as other researchers, have found that the following accommodations are effective in helping people with psychiatric disabilities overcome these limitations and perform their jobs: • Reassigning non-essential job duties that require a great deal of interacting with people (e.g. reassigning a typist’s reception duties); • adjusting work schedules to allow time off for therapy appointments or a later starting time because of drowsiness from medications; • Flexible and extended leave; • Specialized equipment and assistive devices, such as the use of emails to give the employee his or her daily instructions; • Modifying the physical work site, such as by building interior partitions around a workstation to minimize distractions; • job coaches and mentors. The Job Accommodation Network (“JAN”), funded by the federal government, has a great deal of experience in assisting both employers and employees in developing reasonable accommodations for employees with all kinds of disabilities, including psychiatric disabilities. JAN can be reached at (800) 526-7234 or http://askjan.org/. The next question, to be addressed in another blog posting, is how well are the courts enforcing the right to reasonable accommodation for people with psychiatric disabilities.