Pregnant Women in NYC Get Accommodations Starting Today!

We've written before about the Pregnant Workers Fairness Act, which requires employers with 4+ employees to provide pregnant workers with reasonable accommodations for their pregnancy, child-birth, or pregnancy/child-birth related medical conditions (like, say, gestational diabetes). Such accommodations might include more frequent breaks, not having to lift heavy things for a few months, or taking some time to recover from child birth. The Act goes into effect today. It may be surprising to realize that federal law doesn't require employers to provide pregnant women with any accommodations for pregnancy or child birthUnless a pregnant worker has some other disability, under federal law employers are free to require them to stand all day without bathroom breaks and to come back to work the day after the baby is born.

This is due to a gaping hole between the Pregnancy Discrimination Act and the Americans with Disabilities Act. The Pregnancy Discrimination Act defined discrimination against women to include discrimination against pregnant women. That is, discrimination against someone for being pregnant is the same as discriminating against women.

This makes a certain amount of sense -- only women become pregnant, many of the reasons that people discriminate against women has to do with the possibility of them becoming pregnant, and many of the reasons people discriminate against pregnant workers has to do with people's stereotypes about women (i.e., that they'll become mothers and then give up on work).

The problem is that pregnant women need certain accommodations that other women don't -- like frequent rest breaks, or restrictions on how much they can carry. The only federal law that might require an employer to offer these kinds of accommodations is the Americans with Disabilities Act. But in order to get accommodations under the ADA, you have to be disabled. The law doesn't define pregnancy or childbirth as disabilities, meaning accommodations someone needs related only to pregnancy or childbirth aren't covered by the ADA.

New York City, joining in with many other localities, like the state of California, is filling in the gaps and providing its pregnant residents with better protections. Under the New York City law, employers with 4+ employees must provide reasonable accommodations for pregnancy, child birth, or related medical conditions. "Reasonable accommodation" is a bit of a term of art, but it essentially means that the employer has to provide accommodations to help the employee do their job so long as the accommodation does not constitute an "undue hardship" on the employer. If you are pregnant and your employer is refusing to accommodate your pregnancy, child birth or related medical condition, contact a lawyer.

Exciting Developments for Women’s Rights in New York

With civil rights legislation generally stalled in Congress, there is a very real chance for the expansion of women’s rights in New York State. Governor Cuomo recently introduced the Women's Equality Act, his ten-point program to provide women greater protection in and outside the workplaces. Five of the Women's Equality Act’s ten points relate directly to women’s equality on the job. Those five points are:

• Amending the New York State Equal Pay Act to narrow the defenses that employers can raise for paying women lower wages than men who do similar work; to increase liquidated damages (a kind of punitive damages) to three times the actual wage loss; and to protect employees against retaliation for sharing wage information with coworkers.

• Amending the State Human Rights Law to protect victims of sex harassment in establishments with fewer than four employees. Right now, an employer must have at least four employees for the State anti-discrimination and anti-harassment laws to apply.

• Attorney's fees will be available under the State Human Rights Law in sex discrimination cases. This part of the law actually does not go far enough, and through the New York chapter of the National Employment Lawyers Assn., Beranbaum Menken LLP is working to get that part of the bill changed, so that all victims of discrimination who prevail in litigation, not just women, are entitled to attorney’s fees. Without the right to attorney’s fees, lawyers will be reluctant to take cases on behalf of low and middle income workers.

• Amending the State Human Rights Law to cover discrimination based on familial status – meaning an employer would not be able to discriminate against employees because they are single, married, have or do not have children.

• Amending the State Human Rights Law to require that employers offer reasonable accommodation for pregnancy related conditions.

The Women's Equality Act is very significant legislation that promises to fill some important gaps in New York State’s employment laws as they apply to women. The current Legislative session ends on the 17th of June. If you want to help get this legislation passed, the best thing you can do is to call Senator Dean Skelos (Rep. leader) 518-455-3171 and Senator Jeff Klein (Dem. Leader) 518-455-3595. You will either get the voice mail or phone answerer. All you need to say is that you are a New Yorker; you support the Women's Equality Act and all you ask of the Senator is that he allows the bill to go to the floor for a democratic vote. It is a matter of process. Also, you should call or email your own Assembly person and senator, tell her/him that you are a constituent and urge their support of the bill.




On March 31, 2013, in a 74-page opinion, the U.S. District Court for the Eastern District entered a decision denying the motion for summary judgment brought by JetBlue Airways to dismiss the claims brought by the plaintiff Emilie Morse that she was fired because of her disability. See Morse v. JetBlue Airways Corp., 2013 WL 1294629 (Mar. 31, 2013). Beranbaum Menken LLP represents Ms. Morse. Morse worked for JetBlue as a supervisor of flight attendants (an “Inflight Supervisor”), and everyone agree that she did a superb job. Morse developed severe back pains, making it difficult to do her job. In July 2006, JetBlue put Morse on disability leave. Morse had back surgery and by May 2007 was able to return to work. She asked her supervisors to be returned to her Inflight Supervisor job with a reasonable accommodation allowing her not to fly. Morse knew that her requested accommodation would not pose a problem to JetBlue because for the 6 months before she went out on disability leave, she worked as an Inflight Supervisor without once having to fly. Alternatively, she asked for any other kind of job – a lateral transfer, even a lower position, just as long as she could get back to work.

When a disabled employee (like Morse, here) requests a reasonable accommodation at work, the Americans with Disabilities Act requires the employer to engage in a meaningful exchange of ideas about the feasibility of the requested accommodation. JetBlue did not do so with Morse. Instead, JetBlue invoked a policy providing that any employee out on disability leave for 52 weeks who is not able to perform the essential functions of his or her former job will be automatically fired. And this is what JetBlue did. After her surgery, Morse was able to do sedentary work, but she could not fly, and JetBlue claimed that flying was an essential function of the Inflight Supervisor position (even though Morse held the job for 6 months without ever flying). JetBlue then automatically terminated Morse without even considering whether she could return to JetBlue in a modified Inflight Supervisor position or in some other position.

Beranbaum Menken LLP filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission on behalf of Morse and all the other JetBlue employees who had been fired as a result of the airline’s discriminatory 52-Week Termination Policy. The EEOC, after an extensive investigation, upheld Morse’s charges. The agency found that JetBlue fired Morse pursuant to an “inflexible 52-week maximum leave policy.” The EEOC also found that by inflexibly applying its 52-week maximum leave policy to individuals with disabilities, JetBlue maintained a “pattern or practice of denying reasonable accommodation to, and discriminating against a nationwide class of individuals with disabilities in violation of the ADA.”

In response to the EEOC’s determination, JetBlue agreed to change its maximum leave policy so that the airline can no longer automatically fire a disabled employee out for 52 weeks on disability leave. JetBlue, instead, agreed to consider, in each case, whether a disabled employee on medical leave can return to his or her job with a reasonable accommodation or transfer to another available job. Only if no such accommodation is feasible, can the airline fire the disabled employee.

While agreeing to scrap its discriminatory 52-Week Termination Policy, JetBlue refused to compensate Morse for the damages she suffered as a victim of that policy. As a result, Morse filed a lawsuit in U. S. District Court for the Eastern District of New York.

After a great deal of discovery, and JetBlue’s filing of a Motion for Summary Judgment to have to the case dismissed, United States District Judge denied JetBlue’s motion and allowing the case to go to trial. The Opinion was an across-the-board victory for Morse. The Court held:

1) The fact that Morse received Social Security Disability benefits after her termination from JetBlue did not prevent her from claiming that had JetBlue given her a reasonable accommodation, she could have performed the essential functions of her job or another job.

2) Although, according to the Court, flying was an essential function of Morse’s original job, there was sufficient evidence that she could have performed the essential functions of two other available, non-flying jobs for which she was qualified.

3) The fact that for 6 months Morse satisfactorily carried out the duties of an Inflight Supervisor without flying is evidence that her request for a non-flying supervisory job would not have been unduly burdensome to JetBlue, and the airline offered no detailed evidence that Morse’s requested accommodation would present an undue hardship.

4) JetBlue failed to engage in an interactive process to determine an appropriate reasonable accommodation for Morse, as the ADA requires.

5) JetBlue unlawfully terminated Morse. As the district court wrote, “[t]erminating a disabled employee ... who can perform the essential functions of the job but cannot return to work because the employer has denied [her] request for reasonable accommodation, is disability discrimination under the ADA.”

You can call John Beranbaum if you have questions about the case or find yourself in a similar situation.

Tax Consequences of Settlement Awards

A recent column in the New York Times argues that some settlements – including billion dollar mortgage fraud settlements – can actually benefit the banks because they may be tax deductible as a business expense. This applies to employment law settlements as well – if a company settles a multi-million dollar race discrimination suit, that settlement can be deducted. Sadly, the reverse is true for the victimized employee. Any settlement money received in a wage or discrimination case must be declared on the employee’s taxes as “income.” This is true for all settlement money that is intended to compensate the employee for wages or compensation, pain and suffering (emotional distress or anguish). This is true even for punitive damages – despite the fact that the whole point of punitive damages is that it is not intended to compensate the victim so much as to punish the company. The only exception to the taxability of settlements is where the employee has suffered emotional distress as a result of physical injuries or sickness caused by the employer, as the Supreme Court decided here and here.

There is one bright spot for employees who succeed in wresting money from their former employers for their unlawful activity. The Tax Code (62(a)(20)) allows individuals to deduct the attorneys’ fees paid for claims relating to unlawful discrimination, the enforcement of civil rights, unlawful retaliation, whistleblowing; and compensation.

It is a topsy turvy world where an employer gets a tax benefits for the money paid to an employee in settlements or judgments for its unlawful conduct, but the employee must pay a good share of his or her recovery to the government.