reasonable accommodation

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.

NYC Passes Law Protecting Pregnant Employees From Discrimination

New York City has recently enacted an anti-discrimination law that will go a long way in prohibiting discrimination against pregnant workers. The Pregnant Workers Fairness Act amends the NYC Human Rights Law to require NYC employers with four or more employees to provide reasonable accommodations necessary because of pregnancy, childbirth or a related medical condition. The kind of accommodations that the new law requires NYC employers to give pregnant workers include frequent bathroom breaks, breaks to facilitate increased water intake, periodic rest for those workers who stand for long periods of time, assistance with manual labor and a period of recovery from childbirth. If an employer does not provide a pregnant worker a needed accommodation, the worker may sue the employer for damages. In that situation, to escape liability, the employer will have to prove that the requested accommodation would pose an undue hardship (e.g. it would cost too much money or disrupt workplace operations), or that the pregnant worker, even with the requested accommodation, could not perform the essential function of the job. The kind of workplace modifications that pregnant workers need are usually fairly minor and inexpensive, so it is doubtful that employers will succeed in proving that the accommodation would pose an undue hardship. The NYC law is very important because currently federal and NY State anti-discrimination laws do not require employers to make reasonable accommodations for pregnant women. As a result, pregnant workers, deprived of job modifications that would allow them to continue to work through their pregnancy, have lost their jobs. Others have endangered their health by working while pregnant without some accommodation to their schedule or job duties. This is especially true for low-income employees, like cashiers, who have to stand on their feet for long periods or employees who have to lift objects as part of their job. The Pregnant Workers Fairness Act assures that pregnant workers do not have to choose between their health and jobs. In addition to New York City’s Pregnant Workers Fairness Act, seven states have laws that require employers to provide reasonable accommodations to pregnant women. The federal anti-discrimination law, Title VII, as amended by the Pregnancy Discrimination Act, prohibits discrimination because of pregnancy or a related medical condition, but it does not require employers to provide reasonable accommodations to pregnant workers, like the NYC law does. The U.S. Congress has left dead in the water a federal Pregnant Workers Fairness Act which would obligate employers to accommodate pregnant employees. The last time the bill was introduced neither the House nor the Senate even held a hearing to consider its merits. When Congress fails to do its duty to protect workers from discrimination, municipal and state governments, like in NYC, have to step in.

People With Psychiatric Disabilities Are Entitled to Reasonable Workplace Accommodations

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.

FEDERAL COURT RULES THAT JETBLUE EMPLOYEE FIRED BECAUSE OF DISABILITY MAY BRING CASE TO TRIAL

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.

We Support the Pregnant Workers Fairness Act

The Senate today introduced the Pregnant Workers Fairness Act, which would allow pregnant women “reasonable accommodations” while at work. Currently, unless a pregnancy involves unusual complications, pregnant women are not entitled to protections under the ADA. This means that women can be fired for needing even small pregnancy-related accommodations, like needing to drink water on the job. This law would change that, and recognize that women shouldn’t have to choose between having a healthy pregnancy and keeping her job. Write your Senator, and ask him or her to support the bill.