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Organ Transplant Discrimination: Disability Will No Longer Dismiss You From the List

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An intellectual or developmental disability shouldn’t have any effect on your access to necessary medical care, but patients with Down syndrome and other conditions routinely face organ transplant discrimination. Now states and the federal government are taking on the rights of disabled Americans, to make sure they have equal access to the organ transplant list.

Transplant Centers Pass Over Patients with Other Disabilities

It might seem like medical professionals would be the last people to discriminate against someone because they had a disability. You might assume that doctors, medical facilities, and researchers would understand comorbidity and the need for people with disabilities to have access to necessary, life-saving treatment like organ transplants.

It is common for people born with Down syndrome to also have heart conditions. The National Down Syndrome Society says about half of all infants born with the syndrome have a heart defect. Many of these children and their families face a long journey of surgeries and other medical treatments. However, when those surgeries aren’t enough many find themselves in need of an organ transplant.

Unfortunately, in many parts of the country, those disabled individuals may not get access to the life-saving treatment they need. They may be passed over or screened out of eligibility for organ donation based on unfounded assumptions about their quality of life and ability to follow post-operative care instructions.

Disability advocates have known about the problem for a while. In 2008, researchers at Stanford University surveyed 88 transplant centers across the country. It found that 85% of pediatric transplant centers consider intellectual or developmental disability as one of their eligibility criteria. In heart transplant programs, 71% said they “always” or “usually” considered intellectual and developmental disability diagnosis before adding a patient’s name to the organ transplant list.

More recently, in 2019, the National Council on Disability issued submitted a five-report series called Organ Transplants and Discrimination Against People With Disabilities to then-President Donald Trump. That report “focuse[d] on how the historical and continued devaluation of the lives of people with disabilities by the medical community, legislators, researchers, and even health economists, perpetuates unequal access to medical care, including life-saving care.”

States Fight Back Against Organ Transplant Disability Discrimination

The Americans with Disabilities Act and Section 504 of the Rehabilitation Act make it illegal to discriminate against someone because they have a disability. However, many medical professionals and organ transplant centers continue to do it, apparently unaware that the anti-discrimination laws apply to the organ transplant process.

The National Down Syndrome Society has been working to increase visibility of the issue, and improve state-level protections against organ transplant disability discrimination. They have advocated for additional anti-discrimination laws in 15 states, including California, New Jersey, Maryland, Massachusetts, Oregon, Delaware, Kansas, Ohio, Pennsylvania, Washington, Louisiana, Indiana, Missouri, Iowa, and Virginia.

One NDSS advocate, Charlotte Woodward is an organ transplant recipient herself. Woodward, who has Down syndrome, received a heart transplant to correct an atrioventricular heart defect that left a hole in the wall between her heart’s chambers, and flaws in its valves. After multiple surgeries, Woodward was told she would need a transplant. Unlike many in her condition, Woodward’s doctors advocated for her to be put on the transplant list. She had the heart transplant operation 11 days later.

Now Woodward is an advocate against organ transplant discrimination. Woodward told Forbes:

“Many people with Down syndrome in society aren’t considered to be candidates for an organ transplant, and that begs the question, whose lives are valuable?”

She told her story in front of the Virginia health committee in 2020, which played a key role in the state passing organ transplant legislation later that year.

Congress Takes Up Organ Transplant Legislation

Now Ms. Woodward is being asked to take her advocacy to the national level. Representative Jamie Herrera Beutler, a Republican from Washington State’s 3rd district, is working to propose anti-discrimination organ transplant legislation to the U.S. House of Representatives. She and her co-sponsor, Katie Porter, a Democrat from California’s 45th district are working to increase protections for Americans with disabilities’ access to medical care.

“Only a handful of states have laws barring [organ transplant] discrimination; it’s time to give all Americans with disabilities access to the gift of organ donation,” Rep. Herrera Beutler said.

The federal bill is called the Charlotte Woodward Organ Transplant Discrimination Prevention Act. If it becomes law, it would prevent doctors, hospitals, transplant centers, and other healthcare providers from denying someone an organ transplant based on a disability diagnosis. Instead, medical providers would be required to consider the likelihood of transplant success and to provide aftercare support to those with disabilities. The bill also includes streamlined procedures for challenging organ transplant disability discrimination, so that the legal process does not interfere with a person receiving appropriate medical care.

The Charlotte Woodward Organ Transplant Discrimination Prevention Act was introduced on December 16, 2020. It will likely be reintroduced in the new legislative session. It will then be referred to the House Energy and Commerce committee for consideration, and possibly additional testimony from Charlotte Woodward herself.

Americans with disabilities don’t have to wait for the new legislation to become law. If you are facing disability discrimination by a doctor, transplant center, or your employer, the ADA and the Rehabilitation Act already give you options. At Eisenberg & Baum, LLP, our New York-based discrimination attorneys represent individuals who face systems designed to work against them. We can help you file an ADA complaint and get you access to the medical care you deserve. Contact us today to schedule a consultation.

COVID Vaccine May Potentially Cause Discrimination Issues for Employers

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The COVID-19 vaccines have begun to roll out across the country. That means that some employees are able to return to the workplace, even while others never left. Can your employer require you to take the COVID vaccine or is that disability discrimination? Here are some considerations for employers and employees alike as businesses struggle to get back to work.

COVID-19 and the Americans With Disabilities Act

For the past year, food-service workers, medical professionals, and other essential workers have been negotiating an ever-changing sea of COVID-19 workplace restrictions and requirements. Social distancing, cleaning protocols, mask requirements, and other changes have sought to keep employees and customers safe while still keeping the company’s doors open and the lights on.

COVID-19 has affected more than 24 million Americans (as of this writing). While over 400,000 have died, many more have been sick, recovered, and now seek to return to the workforce. Employers may want to take preventative measures to avoid the spread of the disease. However, the ADA and other laws against disability discrimination still apply.

The Americans with Disabilities Act, the Rehabilitation Act, and other federal anti-discrimination laws limit what employers’ access to employees’ health information, and in many cases prevent hiring and firing decisions based on an employee’s illness or disability. The result is a tightrope of health, safety, and privacy that can easily tip into disability discrimination that hurts everyone — employees and employers alike.

Can My Employer Screen for COVID Symptoms or Make Me Take a Test?

The Centers for Disease Control (CDC) recommends employers screen their employees for COVID symptoms and immediately send home anyone experiencing:

  • Fever
  • Chills
  • Cough
  • Shortness of breath
  • Sore throat

Other health professionals add:

  • Loss of smell or taste
  • Gastrointestinal problems
  • Nausea
  • Diarrhea
  • Vomiting

However, the ADA restricts what medical information an employer may obtain employees. All health-related questions or medical exams must relate to the job and be “consistent with business necessity.”

The Equal Employment Opportunity Commission (EEOC) says that COVID symptom screening questions and mandatory testing are medical exams covered by the ADA. However, they are also necessary to do business in the face of the pandemic. The EEOC says that employers can ask employees if they are experiencing COVID 19 symptoms, take their temperature, or tell them to get a COVID-19 test. However, the results of these medical exams must be protected and can’t be publicly disclosed.

Will I be Forced to Take a COVID-19 Vaccine to Keep My Job?

As the Coronavirus vaccines become more readily available, many employers are considering requiring their employees to receive them as a condition of employment. However, many employees have concerns about the vaccine’s safety, effectiveness, or need. According to the EEOC, mandating a COVID vaccination for employees does not violate the Americans with Disabilities Act because it is not a medical exam or inquiry.

What if I Have a Disability or a Religious Objection?

General concerns about health and safety don’t automatically outweigh employees’ rights, though. Some people are medically unable to receive vaccinations (perhaps due to an allergy). Others may have sincerely held religious beliefs that prevent them from taking the medicine. The EEOC has said that these concerns must be addressed on a case-by-case basis. As with other forms of religious and disability accommodations, the inability to get a vaccine is not automatically grounds to terminate an employee. However, it may be a reason to prevent you from coming into the workplace. Your employer will need to determine whether “reasonable accommodations” can be made, such as:

  • Telework
  • Continued social distancing and cleaning protocols
  • Mandatory masking or face shielding

Unless these accommodations would create an “undue hardship” on the business, your employer must take reasonable steps to allow you to continue to work even without the COVID vaccine.

Best Practices for Employers Considering Mandatory COVID Vaccines for Workers Returning to the Office

Employers are now facing a challenge, balancing disability discrimination laws and the need to protect employees from the coronavirus. Here are some considerations in finding the right balance.

Decide Between Mandatory and Voluntary COVID-19 Vaccination

One way to avoid the case-by-case evaluation of each employee’s vaccination objections is to make them voluntary. Employers who have been operating remotely could, for example, allow employees to return to the office only after receiving the vaccine, but continue to allow telework for anyone who opts out.

Work with Employee Unions to Implement Health Management Rules

If your employers are unionized, vaccination policies will likely require mandatory collective bargaining under a management rights clause. By starting these negotiations well in advance of any mandatory vaccination policy, employers can give their employee unions time to address anxiety around the vaccines and educate employees about their safety and effectiveness. This can increase employee buy-in and help ensure a safe workplace while protecting employees’ rights.

Use a Third Party Vendor for Screening, Testing, and Vaccination to Protect Employee Medical Information

If you decide that mandatory screening, COVID testing, or vaccination is a business necessity, don’t have your own employees perform the medical exams. The screening questions leading up to testing or treatment can create potential disability discrimination violations, even when the actual exam is needed for employees’ safety. By hiring an outside vendor to perform the exams, you shield your employees’ medical information and make sure they don’t face discrimination due to COVID-19.

COVID-19 has created new questions for everyone about health and safety at work. Finding the right balance of employee safety, health, and privacy requires careful attention to the ADA and other disability discrimination laws. Whether you are an employee facing mandatory testing or vaccination, or an employer looking for best practices in a changing legal environment, we can help.

At Eisenberg & Baum, our employment discrimination attorneys, help workers protect their religious rights under Title VII, as well as their health and privacy under the Americans with Disabilities Act, and state civil rights laws. We can help navigate the discrimination issues created by COVID-19 and the rush to get the vaccine into the arms of key employees. If you believe your employer has violated the ADA or are an employer yourself trying to create a policy, contact us. We’ll meet with you and help create a strategy that protects the rights and the health of your employees and coworkers.

ABA Study Finds Attorneys with Disabilities or in the LGBTQ+ Community Face Prevalent Discrimination

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Discrimination can take many forms, and target many different kinds of minorities. Until now, most studies of discrimination within the legal community have focused on traits you can see: race, gender, age, etc. Now a recent study has looked into the “invisible” traits of disabilities, sexual orientation and gender identity. The study found that attorneys with disabilities or in the LGBTQ+ community face prevalent discrimination as well.

ABA Survey Studies Diversity and Inclusion Among Lawyers

In Spring 2020, researchers from the Burton Blatt Institute at Syracuse University partnered with the American Bar Association to investigate issues of diversity and inclusion within the American legal profession. Their report, published in the University of the District of Columbia’s Law Journal, holds itself out as “among the first and largest undertaking of its kind to focus on attorneys with disabilities or that have health impairments and conditions, and lawyers who identify as LGBTQ+.”

Previous studies had focused on “visible” minorities, such as race and gender. But lawyers across the spectrum of disabilities, gender expressions, and sexual orientations are “among the groups most stigmatized by society and in the workplace.” This report, the first in a longitudinal study, intended to document LGBTQ+ and disability discrimination within the industry, and suggest ways to mitigate the effects of that stigma.

The Demographics of the Study

To do this, the ABA sent out nearly 200,000 emails to lawyers associated with disability organizations and the LGBTQ+ community. Of the 3,590 responses received:

  • 6% identified as lesbian, gay, or bisexual (LGB)
  • 1% identified as transgender, non-binary, non-binary-non-gender-conforming, gender fluid, gender nonconforming, androgynous, or agender
  • 4% identified as other sexual orientations including demi-sexual or pan-sexual
  • 25% reported a health impairment, condition, or disability

The report acknowledged that the study was trying to oversample lawyers with multiple marginalized identities (representing intersectionality). However, very few lawyers fit into that group. Among those who reported health and disability issues, only 18.7% identified as LGB and 1.4% reported other gender identities. However, 42.1% were in later stages of their career, which suggested their disabilities may have been age-related.

Study Identifies Gender Discrimination and Sexual Orientation Discrimination Within the Legal Industry

This study reinforced prior work showing that the LGBTQ+ community faces negative attitudes and stereotypes in the workplace. This often causes them to be passed over for advancement, or be paid less based on conscious and unconscious biases about their performance.

During the past 10 years, the number of openly LGBTQ+ lawyers has more than doubled, but they are still not widespread in the industry. They are most often found in public interest organizations and are geographically focused in four major cities: New York, Washington D.C., San Francisco, and Los Angeles.

Even when they are able to advance, professionally, gay and Trans* workers often experience organizational barriers from verbal and nonverbal microaggressions to intentional bias. Across the study, about 40.2% of respondents said they had experienced some form of bias and descrimination. This included:

  • 9% experiencing bullying
  • 0% experiencing discrimination
  • 7% experiencing subtle and intentional biases
  • 5% experiencing subtle but unintentional biases

Among the LGB respondents, more than 47% said they had experienced implicit bias within the legal industry.

Disability Discrimination Takes More Overt Forms, Including Refusing Accommodations, Study Says

One quarter of all respondents reported having some health impairment, condition, or disability. Out of the 830 lawyers who answered the question, almost one third (30.8%) reported a mental condition, including:

  • Depression
  • Anxiety
  • Learning disabilities
  • ADHD
  • Autism
  • Sleep disorders

The study found that these attorneys with disabilities “reported experiencing proportionally more overt forms of discrimination, such as bullying and harassment, as compared to people who do not have such conditions.”

Workplace accommodations is one way disability discrimination varies from other forms of bias. Under the Americans with Disabilities Act, disabled workers may request reasonable accommodations from their employer to make it easier for them to perform their assigned tasks. In the study, more than one-quarter of total respondents (28.4%) had requested workplace accommodations. Among those who identified as a person with a disability, that number increased to 65.0%. These accommodations included:

  • 3% asked for changes to a work schedule (including flex time, shift changes, or part-time work)
  • 3% asked for modifications to their personal work environment (such as orthopedic chairs or lowered desks)
  • 8% asked to work from home or telecommute

When workers did request accommodations, their requests were granted 76% of the time, and another 15% had some accommodations made. However, in more than 10% of cases, their requests for accommodations were denied.

What Can Be Done to Mitigate Discrimination Against “Invisible” Traits

Mitigating discrimination in the legal industry, and other workplaces, requires employers to break down unintentional biases and take active steps against more overt discriminatory practices. The study asked respondents to gauge the effect mitigation efforts in their organization. Nearly half (46%) of respondents said mitigation efforts had been effective in lessening bias against discrimination. This can serve as a guide for employers looking to improve the diversity and inclusion in their workplace:

  • 5% said mentoring within the organization helped
  • 4% said external mentoring was effective
  • 1% said membership in specialized law networks or support groups also helped

Ultimately, the study’s authors encouraged the legal industry to change the way they think about diversity and inclusion to focus on 3 core areas:

  • Diversity of talent (appreciation and meaningful representation of valued benefits)
  • Inclusion of talent (understanding, accepting, and engaging with those with different perspectives)
  • Accommodation of talent (providing meaningful support to enable people to contribute to the maximum extent possible)

The study concluded:

“These diversity, inclusion, and accommodation strategies, both individually and in combination, contribute to an organization’s mission and success. They also contribute to individual commitment to and satisfaction with the organization.”

By narrowing “the divergence between the person’s particular profile of job-related strength and needs, and their work environment” the authors say employers can mitigate social biases and help everyone in their workplace feel accepted and work to their greatest potential.

At Eisenberg & Baum, we understand how to work with state and federal law to fight back against sexual orientation, gender identity, and disability discrimination at work. Our employment discrimination attorneys, help LGBTQ+ and disabled workers protect their rights under Title VII, the Americans with Disabilities Act, and state civil rights laws. If you have been the victim of disability, transgender or sexual orientation discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.

​Can Your Employer Deny You a Chair as a Disability Accommodation?

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Disabilities come in all shapes, sizes, and severity. Sometimes accommodating for an employee’s disability requires special equipment or a flexible schedule. Other times, all that is needed is a chair. But employers sometimes refuse even the simplest requests, leading some workers to wonder if your employer can deny you a chair as a disability accommodation.

In this blog post, I will review a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) against Grand Hyatt for disability discrimination. I will discuss what reasonable disability accommodation may include, and how a court may answer the question “can your employer deny you a chair?”

New York Hyatt Hotel Denies Employee Disability Accommodation

Grand Hyatt New York, Inc. operates a large hotel at Grand Central Terminal in New York City. It is part of a network of Hyatt hotels across the U.S. and internationally. So when a front desk agent filed a disability accommodation request, it was reasonable for him to expect the request to be taken seriously.

The agent, who is not named in the recent press release by the Equal Employment Opportunity Commission (EEOC), suffered from chronic back pain. To relieve his pain he made a simple request: he asked for a chair as a disability accommodation. At first, Grand Hyatt granted the request, allowing him to sit while working the front desk for two weeks. But then, the employer took his chair away and denied his request for disability accommodation.

Americans with Disabilities Act Requires Employers to Make Reasonable Disability Accommodations

The front desk agent’s request was based on the Americans with Disabilities Act, a federal civil rights law that prevents discrimination against employees based on their medical history or disabilities. The law prohibits employers from making employment decisions (hiring, firing, promotion, etc.) based on a person’s disability. It also requires employers to provide reasonable accommodations to employees or applicants to enable them to do their jobs.

The disability accommodation requirement is not unlimited. An employer is allowed to deny requests that are unduly burdensome, or would cause significant difficulty or expense to the employer. Determining what is a reasonable disability accommodation can depend on:

  • The effect of the request on the employer’s ability to do business
  • Whether there are other employees available to cover activities the disabled individual cannot perform
  • The cost of providing the disability accommodation
  • The employer’s size and access to resources
  • The employer’s history of providing similar accommodations to other employees

Can Your Employer Deny You a Chair as a Disability Accommodation?

When the front desk agent’s request for a chair was denied, he filed a complaint with the EEOC under the Americans with Disabilities Act. But Grand Hyatt still would not agree to the disability accommodation, so the EEOC has filed a lawsuit on his behalf. The question for the U.S. District Court for the Southern District of New York in EEOC v Grand Hyatt New York, Inc., (Civil Action No. 1:18-CV-07374) is whether your employer can deny you a chair as a disability accommodation. Said another way, can a request for a chair be unduly burdensome or cause significant difficulty or expense to the employer? The EEOC doesn’t believe so.

“Federal law on disability accommodations is very clear and fair – employers must provide a reasonable accommodation as long as it causes no undue burden,” said Kevin Berry, the EEOC’s New York District director. “A request for a chair is hardly likely to create such a burden.”

When a request for disability accommodation is simple, like asking for a chair to sit in, a shift change, or a change in lighting, it is up to the employer to show why the accommodation was denied and that granting it would have been unreasonable. EEOC Trial Attorney Kirsten Peters added,

“A refusal to provide a simple, low-cost accommodation to an individual with a disability is a clear violation of the law. This lawsuit could have easily been avoided if Grand Hyatt New York had done the right thing.”

Options for Disabled Employees Seeking Accommodation

The ADA may require employers to make reasonable disability accommodations, but that doesn’t mean your boss is going to make it easy for you. The employment discrimination attorneys at Eisenberg & Baum, LLP, know how to talk to employers big and small. From our main office in New York City, we can help employees across the country negotiate for accommodations to address their medical needs, sometimes without having to file a formal complaint. When negotiations fail, we can work with the EEOC and the federal courts to get you the accommodations, and damages, you deserve.

Disabled employees have the right to work with dignity. Your job shouldn’t cause you pain and suffering. If your employer is denying you accommodations for your documented medical needs, contact us today to schedule a consultation.

Can a Separation Agreement Block an Employee​’s Discrimination Complaint?

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When employment discrimination comes to a head, it may be best for everyone if employer and employee part ways. But do you need to give up your legal civil rights claims to escape a hostile work environment? Can a separation agreement block an employee’s discrimination complaint?

In this blog post, I will review a settlement between The Coleman Company, Inc. and the EEOC in connection with the company’s separation agreements with former employees. I will review how Title VII and the Americans with Disabilities Act (ADA) address waivers of claim, and whether a separation agreement can be used to cut employees off from filing discrimination complaints after they have been fired.

Federal Laws Protect Against Employment Discrimination

There are a variety of state and federal laws that protect workers against employment discrimination on the job. Title VII applies to workplace discrimination based on race, religion, gender, and other protected traits. The Americans with Disabilities Act ensures that employees are not punished for their physical and mental disabilities.

These employment discrimination laws make it illegal to fire an employee, or force them to quit or retire, because of a protected trait. It is also illegal to retaliate by firing a person after he or she files an employment discrimination complaint with the Equal Employment Opportunity Commission (EEOC) or federal court. Less severe forms of discrimination are also covered by the statutes including shift assignments, compensation, and promotion decisions.

Severance Agreements and Waivers of Claim

Severance agreements are a regular part of modern employment law and human resource policies. These contracts are signed by the employee and a representative of the employer at the time of separation and control everything from intellectual property ownership to civil lawsuits. Many severance agreements include “release of claim” or “waiver of liability” provisions. They say that in exchange for financial payouts (sometimes described as so many “months of severance”) the former employee agrees to forgive any wrongdoing by the employer. But can these releases cut an employee off from filing employment discrimination claims to protect their civil rights?

EEOC Says Separation Agreement Violated Americans with Disabilities Act

The EEOC says no. In a recent press release, EEOC Phoenix Regional Attorney Mary Jo O’Neill said:

“Increasingly, we are seeing employers, whether intentionally or not, including overbroad language in their separation agreements that interferes with signatories’ rights to participate in EEOC processes or that impedes the EEOC’s ability to enforce federal anti-discrimination laws as it deems necessary.”

The agency and federal courts have generally said that contract provisions that cut off employees’ access to civil rights protections are illegal and void because they are against public policy. In other words, the courts won’t let companies get around following civil rights laws just by paying former employees not to file legitimate complaints. This means, even if the language of an employee’s severance agreement suggests she gave up civil rights claims against the company, she will still be allowed to file a discrimination complaint.

EEOC & Coleman Company Settlement Corrects Severance Agreement Overreach

When an employee filed a complaint against The Coleman Company, Inc., with the EEOC, this issue of severance agreements became the center of the case. The basis for the complaint was a violation of the Americans with Disabilities Act and Title VII. However, the voluntary conciliation agreement announced in February 2018 centered on the employee’s severance agreement and the employee’s right to file charges and cooperate with an EEOC investigation of those charges.

The EEOC said the severance agreement itself violated the civil rights laws by blocking an employee’s access to civil rights remedies. It interfered with their ability to file charges with the EEOC or accept relief obtained by the agency. Even if no other actual employment discrimination happened, the EEOC says the contract violated Title VII and the ADA by making employees believe they don’t have the right to file claims after they sign it.

After informal negotiations, Coleman agreed to hire an outside equal employment opportunity consultant to review its separation agreements, and to revise its current and past employees’ contracts to protect their ability to file EEOC charges. The company will also notify anyone who signed a separation agreement with the company between 2013 and 2015 that they may file employment discrimination charges and the company would not raise time-based defenses to the claims. O’Neill said:

“We applaud the Coleman Company for proactively tackling this issue once it was brought to its attention. . . . We hope other employers learn from Coleman’s model behavior and pay closer attention to their separation agreements. No matter what the intent, whether intentionally misleading or inadvertent, employers cannot insist on agreement provisions that are void against public policy.”

A severance agreement is not legally allowed to block employees’ employment discrimination claims. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to defend your civil rights claims, even in the face of an overly broad severance agreement. Contact us today to schedule a free consultation.