Can You Be Forced to Take Leave for a Disability?

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Disabilities come in all severities, forms, and durations. But can a one-size-fits-all disability policy interfere with your ability to work or keep your job? Can a car accident or chronic health situation put your job at risk? Can you be forced to take leave for a disability?

In this article I will discuss a settlement by the Equal Employment Opportunity Commission in response to a complaint that an employee was forced to take leave for a disability rather than be granted reasonable accommodations. I will review what the Americans with Disabilities Act requires employers to do when faced with an employee disability. I will also explain what employees’ options are if they have been forced to take leave for a disability.

What is a Disability?

Your doctor tells you to take it easy and not lift too much for a while so your back can heal. Maybe you were in an accident and need to wear a cast or boot for a few weeks. You may have a vitamin deficiency that makes you tire easily or a repetitive movement injury that could be aggravated by your work.

Disabilities can take many forms. Not every illness or impairment is a disability, legally speaking. However, the Americans with Disabilities Act applies any time a person:

  • Has a physical or mental condition that substantially limits a major life activity like walking, standing, sitting, talking, hearing, seeing, or learning
  • Has a history of disability (like a disease in remission)
  • Is believed to have a permanent physical or mental impairment (even if it is not true)

Seeking Reasonable Accommodations for Your Disability

Having this kind of disability doesn’t automatically make you unable to work. Many people with disabilities maintain full- or part-time employment. In fact, that is one primary purpose behind the Americans with Disabilities Act. It requires employers to make reasonable accommodations for people with mental and physical disabilities.

This can include any change to the way things are normally done at work (or within the work environment) to help you meet your employers’ expectations or enjoy the benefits and privileges of your work. Some examples of common accommodations include:

  • Stools for those who would otherwise work standing
  • Wheelchair accessibility to work spaces, conference areas, break rooms, and bathrooms
  • Large-font manuals and reports for those with vision problems
  • Text-to-speech programs for the deaf and hearing impaired
  • Flexible work schedules for those who need breaks or have frequent doctors’ appointments

The ADA says your employer must provide these reasonable accommodations to you as an employee or job seeker unless doing so would cause significant expense or difficulty.

Can You Be Forced to Take Leave for a Disability?

But what happens if you inform your employer about your disability and they simply tell you to pack up your things and go? Can you be forced to take leave or be fired because you have a disability?

This was the basis behind the lawsuit EEOC v Wilmington Trust Corporation, Civil Action No. 17-cv-05077, filed in the U.S. District Court for the Southern District of New York. Starting as early as 2002, Hudson City Savings Bank (HCSB) had a “no-restrictions” disability policy. Anyone who came to work with an impairment or disability was placed on involuntary leave until they received clearance from their doctor to return to work with no restrictions. HCSB became part of Wilmington Trust Corporation in 2015, but the policy apparently continued.

Then a bank teller came to work in the Harrison, New York branch wearing a cam walker boot to treat Achilles tendonitis and bone spurs. The boot had no effect on her ability to do her job. Still, under the bank policy she was placed on involuntary leave and eventually fired.

The Equal Employment Opportunity Commission (EEOC) took up her case. In a statement, Kevin Berry, the EEOC’s New York District Director said:

“[T]he ADA requires employers to engage in an interactive process and does not allow for such ‘no restriction’ policies.”

By continuing HCSB’s policy, the EEOC said Wilmington Trust discriminated against people with disabilities, and failed to even allow them to request reasonable workplace accommodations. On December 19, 2018, the judge in the case entered a consent decree awarding the teller $700,000 in lost wages and other damages, and creating a two-year injunction where Wilmington agreed to:

  • Stop the no-restrictions policy
  • Notify HCSB legacy employees of their right to request disability accommodations
  • Conduct trainings on the company’s disability discrimination policy

Corporate Structures and Successors’ Obligations Under the ADA

The no-restrictions policy in this case pre-dated Wilmington Trust’s involvement in the company. But that didn’t excuse the successor company from correcting its predecessor’s illegal disability discrimination under the ADA. Berry said:

“The consent decree also demonstrates how a successor entity can take action to make sure a predecessor’s discriminatory practices do not infect its workplace.”

These kinds of legacy practices and inflexible leave policies promise to be a focus of the EEOC going forward. They have been identified as priorities in the EEOC’s Strategic Enforcement Plan.

When outdated policies follow employees through corporate restructuring, it can cause disabled workers to feel like there is no way to work around their restrictions. But the ADA and the experienced employment discrimination attorneys at Eisenberg & Baum, LLP, say otherwise. From our main office in New York City, we can help employees across the country negotiate for accommodations to address their medical needs, and represent disabled employees at the EEOC and in federal court. If you have been forced to take leave for a disability, contact us today to schedule a consultation.

International Employees’ #MeToo Push May Find Strength in New York State Human Rights Act

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Not every country’s laws or government take sexual harassment as seriously as in the U.S. But for international employees making a #MeToo push against their employers, a business trip to New York could give them a chance to find strength in the New York State Human Rights Act.

In this article I will discuss how employees of international companies may be able to use New York State’s Human Rights Act to protect themselves and push for change in their companies. I will talk about the limits of the New York State Human Rights Act, and how recent expansions could cover international employees who travel to the state for work.

#MeToo Movement Gains Momentum in China

The #MeToo movement is usually thought of as a Western idea. The hashtag was coined in 2006 by Tanara Burke, an African American activist seeking to empower black women and girls to speak up about sexual assault and violence. Then a decade later, it became a movement after celebrities like Alyssa Milano used the hashtag to expose sexual harassment in the entertainment industry.

However, what started in Hollywood has now spread worldwide. #MeToo movements have arisen in Europe, Saudi Arabia, South Korea, Indonesia, Russia, and even China. In Beijing, over a dozen Chinese women came forward in July 2018. They signed open letters posted on the Chinese social media site Weibo, alleging that they were the victims of sexual harassment and assault by Chinese journalists, intellectuals, and charity leaders.

Among them was Zhou Xiaoxuan, a 25-year-old screenwriter. She wrote an essay talking about her experience in the dressing room of famous Chinese anchorman Zhu Jun. She alleged that she was serving as an intern at China Central Television in the summer of 2014 when she was asked to take fruit to Mr. Zhu’s dressing room. When the other intern with her left the room, Ms. Zhou says Mr. Zhu grabbed her hand, forcibly kissed her, and groped her. She was able to escape when someone came to the door. Mr. Zhu has denied the allegations and each side has sued the other in Chinese court.

International Laws Don’t Always Protect Sexual Harassment Victims

Ms. Zhou went to the police right away with her complaints. But she says the officers told her to drop her complaint because “Mr. Zhu was a force for good in society.” They even threatened Ms. Zhou’s public-sector jobs. Zhou says this experience is not uncommon. Sometimes women wait in line at police stations for days without being able to press charges. Women in China also face laws that do not clearly define rape or harassment and cultural assumptions that blame women for sexual abuse. All of this can make it difficult for international employees to get relief from sexual harassment.

New York State Human Rights Act Provides Hope to International Employees

While international employees may have trouble finding relief at home, a recent change to the New York State Human Rights Act could give them a chance to defend themselves if their work brings them to the state. As of April 12, 2018, the New York State Human Rights Act was expanded to cover anyone who provides services in a workplace. This can include contractors, vendors, consultants, and independent contractors.

Read More: Sexual Harassment of Independent Contractors in the Workplace

The New York State Human Rights Act also applies to every employer in New York State, no matter how many employees are located there. Together, these two provisions may provide hope to international employees sent to New York on business. While their home jurisdiction may not make it easy to prevent sexual harassment, the New York Division of Human Rights may be able to help if the international employee is:

  • On temporary assignment to the New York office of an international business
  • Sent as a consultant or contractor to work with a domestic business partner
  • Attending a New-York based business conference or event

Whether the law will apply will still depend on what happened, where it happened, and the international employer’s relationship to the state. However, with a broader definition of protected employees, the New York State Human Rights Act could be used to embrace international workers who can’t find help at home.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys know that New York companies do work on a global scale. We know how to use the New York State Human Rights Act to protect international employees and traveling professionals. Contact us to schedule a consultation at our office in New York City, or over the phone.

Union Claims Attendance Policy Causes Gender Discrimination Against Flight Attendants

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Can an attendance policy be illegal gender discrimination? The Association of Professional Flight Attendants thinks so. It has filed a complaint with the EEOC, claiming American Airlines’ new attendance policy causes gender discrimination against flight attendants across the country.

In this blog post I will review reports that the Association of Professional Flight Attendants plans to file gender discrimination claims against American Airlines. I will discuss what gender discrimination against flight attendants looks like and how the company’s attendance policy may cause discrimination based on sex or gender. I will also explain what flight attendants and other airline workers can do if they face gender discrimination at work.

New Attendance Policy Creates “Cruel” Punishments for American Airlines Flight Attendants, Union Says

On October 1, 2018, American Airlines rolled out a new attendance policy for its more than 27,000 flight attendants nationwide. The new policy assigns flight attendants one or more points for any attendance infractions, including:

  • Coming to work late
  • Failing to show up for scheduled trips
  • Taking more than 2 personal days
  • Being sick during “critical periods” including July 1-7, the Thanksgiving week, and December 22 to January 3

Once a flight attendant receives 4 to 6 points during a rolling 12-month period, she or he will be required to undergo a performance review. At 8 points, the flight attendant will receive a final warning. Ten points will result in termination.

The attendance policy was announced in August 2018. Within hours, flight attendants across the country were objecting to its terms. One unnamed flight attendant wrote immediately to American Vice President of Flight Service Jill Surdek to say:

“This attendance policy, as written, is punitive, offers no human factor, and is being received by flight attendants as cruel and unusual . . . if a pipe bursts in our house, a tire goes flat or some other Act of God occurs, it’s not easy to jump on a plane for three days and forget that you are going to come home to a catastrophe.”

Can an Attendance Policy Cause Gender Discrimination?

The Association of Professional Flight Attendants, the union representing the affected American Airlines workers promised to resist the new attendance policy right away. After several months of investigation, the union filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), claiming the attendance policy causes gender discrimination against flight attendants.

The argument is based on the gender disparity between flight attendants and other American Airlines crew. The new attendance policy does not apply to American Airlines pilots, a majority of whom are men. By comparison, 75% of flight attendants are women. Since the primarily male pilots have a more relaxed standard, the union says the new attendance policy causes gender discrimination against the female flight attendants.

The airline has denied the allegation that its attendance policy causes gender discrimination and is opposing the EEOC claim.

Responding to Unintentional Discrimination

American Airlines may not have meant to cause gender discrimination against flight attendants, but that doesn’t mean the company won’t face an EEOC complaint or even a federal lawsuit for violating Title VII anti-discrimination laws. “Disparate impact” or “adverse impact” claims can help employees respond to unintentional discrimination that happens when a new policy affects one group of employees more negatively than others based on a protected characteristic like sex or gender. In these cases, it is up to the employees (the plaintiffs) to establish that the policy affects the protected group so much more (or worse) that the court can infer discrimination from those effects.

Showing the disparate impact of unintentional gender discrimination usually means the female employees filing the complaint will need to rely on statistics to show they were treated worse than their male counterparts. However, even where the numbers fall in an employee’s favor, the employer can still defend against a gender discrimination claim by showing that the company has a legitimate business reason for the policy. For example, American Airlines responded to the flight attendants’ complaint by issuing a statement saying:

“[O]ur policy ensures we’re staffed to provide our customers with the great service they expect and deserve when flying American.”

It will be up to the EEOC and the courts to decide whether in this case, applying different attendance policies to pilots and flight attendants creates a disparate impact severe enough to count as gender discrimination under Title VII. But the union’s complaint helps to show employees across the country that even when gender discrimination is part of company policy there are options to fight back and protect their rights.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys can help. If you believe a company policy is causing gender discrimination at work, we will review your situation and help you plan a strategy to change the policy and pursue options in or out of court. Contact Eisenberg & Baum, LLP, to talk to an employment discrimination attorney today.