Can I Bring a Hostile Work Environment Claim on the Basis of Disability in New York? 

By Brendan Klein

Employees with disabilities are protected under the federal Americans with Disabilities Act (“ADA”). Additionally in New York State,  employees also have protections under the New York State Human Rights Law (“NYSHRL”) and New York City employers are duly responsible to abide by New York City Human Rights Law (“NYCHRL”).  All three laws prohibit discrimination against employees with disabilities in the terms, as conditions, or privileges of their employment. However, the key question in many employment discrimination cases is what, exactly, fits within a legal definition of discrimination.

You may have heard the phrase “hostile work environment” used in connection with allegations of discrimination and harassment in employment. In Meritor v. Vinson (1986), the Supreme Court recognized that an employee could be harassed so severely or persistently on the basis of Title VII protected characteristic (race, color, religion, sex, national origin) that it would alter the terms, conditions, or privileges of her employment, creating the basis for a discrimination claim. Unfortunately, the Supreme Court has never recognized such a claim on the basis of disability under the ADA.

Fortunately, the Second Circuit Court of Appeals – which includes districts within New York, Connecticut and Vermont – did recognize such a claim for the first time in Fox v. Costco Wholesale (2019). The Court had previously assumed that such claims were valid, but in that case it joined the handful of other circuits which have explicitly held that hostile work environment claims can be brought under the ADA. Like the other Circuits, the Court acknowledged that Title VII and the ADA have substantial similarities in language and purpose, and so found that, like employees protected by Title VII, employees with disabilities should be able to assert hostile work environment claims under the ADA.

Small, sporadic incidents of harassment on the basis of disability do not establish a hostile work environment. As in Title VII cases, a plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment. In Fox, the Court took pains to note that “teasing in the workplace is not uncommon”, and is usually not actionable. Mimicking a stutter, calling overweight people names, or laughing about someone’s acne, baldness, or height may be cruel, but do not themselves create a hostile work environment. For example, in Hawkins-El v. New York City Transit Authority (2021), an employee with hearing loss brought a hostile work environment claim after his supervisor “yelled and cursed at him” about his hearing difficulties. The court found that this isolated incident was not severe enough to constitute a hostile work environment. In Murphy v. BeavEx, Inc. (2008), an employee with multiple sclerosis complained that his coworkers had created a hostile work environment by stealing his cane and drawing offensive cartoons of him, among other things. The court found that these incidents were insufficiently “severe and pervasive” to amount to a change in the terms and conditions of Murphy’s employment. 

Unlike the ADA, the NYSHRL explicitly protects employees from harassment on the basis of disability when such harassment subjects an individual to inferior terms, conditions, or privileges of employment. However, the Second Circuit analyzes hostile work environment claims under state and federal law using identical standards, so it is not easier for a plaintiff to prevail on such a claim on the basis of disability under the NYSHRL than the ADA.

On the other hand, a hostile work environment claim under the NYCHRL is assessed separately and independently from claims under the ADA and NYSHRL. The Second Circuit construes such claims “broadly in favor of discrimination plaintiffs” and does not require that the alleged conduct be “severe or pervasive”. The plaintiff only needs to show that she was treated “less well” than others because of his or her disability. Thus, with a single set of facts, a plaintiff could lose a hostile work environment claim under the ADA or NYSHRL, but succeed under NYCHRL. For example, in Kugel v. Queens Nassau Nursing Home Inc. (2021) a plaintiff alleged that she had been subjected to a hostile work environment on the basis of her disability, because the defendants had been obstinate and insensitive to her repeated requests for accommodation. Her communications with the defendants were “sporadic” (not sufficiently pervasive), and her claim was dismissed under the NYSHRL. However, the defendant’s emails contained indifference and disdain for the plaintiff’s health concerns. The Court found that the plaintiff was indeed treated less well than other employees due to her disability, and so refused to dismiss her claim under the NYCHRL.

In conclusion, these broad protections against disability discrimination are firmly established under federal and New York state law. If you perceive differential treatment or suspect discrimination on the basis of your disability, it’s important to consult with a New York-registered employment law attorney. 

Residents with disabilities sue New York City over Open Streets program

By Linda Schmidt

Published April 27, 2023 7:38AM

BROOKLYN – Mill Jonakait, 77, is suing New York City. 

“The Open Streets is very troublesome,” Jonakait said. “I think they haven’t thought through what it means to people like me.”

Jonakait lives in Fort Greene, Brooklyn and walks with a limp. She was born without a femur in her right leg, making it 10 inches shorter than her left leg.  

Mill Jonakait was born without a femur in her right leg, making it 10 inches shorter than her left leg.

Expand

Jonakait and 11 other city residents with disabilities are suing the city, hoping to modify the Open Streets program.

What is the Open Streets program?

About 300 city blocks across the five boroughs are closed off to traffic so pedestrians and cyclists can use the open space. The program started during the pandemic, but it limits the amount of available parking. Jonakait is able to drive, but parking is an obstacle. 

“I usually walk with a walker around here because it’s difficult, and when I have to walk blocks, three, four, five blocks from my parked car to here. It’s a challenge to me,” Jonakait said.

About 300 city blocks across the five boroughs are closed off to traffic so pedestrians and cyclists can use the open space.

The federal lawsuit filed against the city says the Open Streets program violates the Americans With Disabilities Act.  

“It’s a real challenge and tragedy for people who are more disabled than I who can’t get their Access-A-Ride,” Jonakait said. “They can’t catch an Uber where they want to.”

“They have a right to participate in their daily life with dignity and independence.”— Attorney Matthew Berman

Attorney Matthew Berman represents the 12 plaintiffs in the case.

“They have a right to participate in their daily life with dignity and independence and not be converted into shut-ins by the fact that this program has locked down huge swaths of the city,” Berman said.

The New York City Department of Transportation oversees the program.

Spokesperson Scott Gastel issued a statement, saying, “Open Streets enhances safety, accessibility, and equity for a large number of New Yorkers using the roads including seniors and people with disabilities. The City will review the case.”

Read the full article and see the video segment on Fox 5 News New York.

‘Open’ or shut case: NYC hit with federal ADA lawsuit seeking to end Open Streets

By Ben Brachfeld

Photo By Christina Santucci/Queens Post

A dozen New Yorkers with disabilities have filed a federal lawsuit against the city, claiming that its Open Streets program violates the Americans With Disabilities Act, with the hope of scuttling the program.

The lawsuit, filed in Brooklyn Federal Court Monday, says everything about Open Streets is a ruse down to its name, deeming it “Orwellian Newspeak” and arguing it would more appropriately be called “Closed Streets.” The plaintiffs argue that by occasionally closing off some streets to car traffic, seniors and people with disabilities who can only travel by motor vehicle — particularly those living on Open Streets — are facing illegal discrimination.

“The program results in the de facto closure of New York City’s public avenues and streets to individuals with disabilities — whose only or primary access to the streets and to the buildings, businesses and services on the streets — is through the use of motor vehicles,” the 12 plaintiffs, who live in Manhattan, Brooklyn, and Queens, allege in the suit, which names the city and various organizations managing Open Street locations as defendants.

Open Streets began at the height of the COVID-19 pandemic, intended to provide open space on local streets for locked-down city residents. The program proved one of the more popular pandemic-era policies, and has returned each summer, with this year’s program set to encompass more than 300 city blocks across all five boroughs.

Volunteers with local civic groups manage the open streets, which are typically in operation for a set number of hours per day, mostly in summer months. The volunteers set up the barricades to block off car traffic, leaving the streets for the exclusive use of pedestrians and cyclists. 

Some Open Streets are entirely closed off to motor vehicles except for emergency services, while others allow access to locals seeking to park or drivers making deliveries. They often are the site of outdoor dining, public art displays, and community programming and performances. The city has declared it intends to redesign some popular Open Streets, like Vanderbilt Avenue in Brooklyn and 34th Avenue in Queens, to more permanently reflect a pedestrian focus, with the hope that barriers might not be needed.

Read more on AMNY.

Employment Discrimination-Know Your Rights

Discrimination in the workplace may be difficult to define but when it occurs, you should be aware and ready to take action. Under no circumstance is employment discrimination okay. It is important to know what qualifies as unfair and what factors you should consider before filing a lawsuit against an employer. Understanding employment discrimination in the workplace is vital when it comes to knowing what you must do if it ever happens to you.
So What Exactly is Employment Discrimination?
Employment discrimination occurs when a job seeker or an employee is treated unfavorably or unfairly because of his/her race, skin color, national origin, sex, age, disability, religion, genetic information etc. Workplace discrimination also extends beyond hiring and firing, for example, suggesting preferred candidates in a job ad, denying certain employees benefits or compensation, and discrimination while issuing promotions and lay-offs. There are many more different forms of employment discrimination and laws to protect employees. Listed below are some of the most common cases:
Racial Discrimination – Racial Discrimination takes place when a potential employee, employee or a group of employees are treated differently or unfairly based on their race or because of characteristics associated with race including facial features, hair, or color of their skin. Title VII of the Civil Rights Act of 1964, prohibits discrimination based on race as well as color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.
Age Discrimination – Age Discrimination comes about when an employee is treated in an unfair manner because of their age, for example, being treated poorly because you are ‘too old’. The Age Discrimination Employment Act (ADEA) protects employees who are 40 years old and older. In addition, under the NYHRL, Section 3-a, it states that it is unlawful for any employer to refuse employment or compensation to any person 18 years old and older because of their age.
Gender, Sexual Orientation, and Hostile Workplace Discrimination

  • Equal Pay-Gender discrimination includes sexual discrimination and/or sex-based discrimination. This occurs when any employer treats an employee in an unfair way or inequitable manner based merely on gender. This includes equal pay for men and women which is federally protected under the Equal Pay Act of 1963.
  • Sexual Orientation-Sexual Orientation discrimination also falls under this category when being homosexual, heterosexual, bisexual or trans gendered impacts the way you are treated in the workplace or during the recruiting process. This kind of discrimination is protected under the Civil Rights Act and would be further be protected in a bill that is still awaiting passage by congress called the Employment Non-Discrimination Act (ENDA).
  • Sex/Hostile Work Environment– Also protected under the Civil Rights Act, Sex/Hostile Work Environment is discrimination based in a sexual hostile environment. The “hostile environment” law also applies to harassment on the bases of race, color, national origin, religion, age, and disability.

National Origin & Religion Discrimination – Our country is widely mixed with people from different parts around the globe. National Origin discrimination occurs when an employee is ignored and/or treated poorly because of his or her accent, nationality, or ethnicity. Companies are required to fairly accommodate an employee’s religious and cultural beliefs as long as they don’t negatively interfere with the workplace environment. This act of discrimination is protected under Title VII of the Civil Rights Act.
Disability Discrimination- The Disability Discrimination Act focuses on the specific needs of the blind, partially blind, physically or mentally handicapped or people with disabilities. Disability is defined by the Americans with Disabilities Act of 1990 (ADA) as a physical or mental impairment that considerably limits a major life activity. Discrimination includes denying employment opportunities to people who are disabled but qualify for the position or not accommodating the known physical/mental limitations of disabled employees
Pregnancy Discrimination-There are laws that protect pregnant women and people with disabilities under the Civil Rights Act and the Pregnancy Discrimination Act. Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions. Additional rights are available to women and others under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor.
If you feel you may be a victim of employment discrimination, let us help you protect your rights. Call the Law Offices of Valli Kane & Vagnini today for a free consultation.

Your Cheat Sheet to Understanding the ADA Amendment Act of 2008

The Americans with Disabilities Act was enacted to protect workers across the U.S. from discrimination against disability.  Congress has recently amended the definition of disability within the ADA by instating the Americans with Disabilities Act Amendment Act of 2008.  The March 25, 2011 ruling made significant changes to the ADA, making it easier for individuals to prove they are disabled under the ADAAA’s guidelines.
The changes appear minimal, but will have a sizable impact on the number of citizens classified as disabled. The Amendment is one of the most significant changes in the fight for equality among disabled citizens. It finally provides the disabled an opportunity for protection against unjust discrimination, and implements the necessary change for equality.
We have compiled the most important things you should know about the new ADA Amendment Act.  The ADAAA does the following things:

  1. Provides an interpretation of the word “disability” that is applicable to many impairments that were previously unprotected. The definition of disability remains the same, “a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”  However, the ADAAA encourages that the terms in the definition should be interpreted broadly.
  2. Supplies guidelines for determining if the disability is “substantially limiting”. A substantially limiting disability is one that makes a person ”significantly restricted as to the condition, manner, or duration under which a major life activity can be performed, in comparison to the average person or to most people.”  The ADAAA also encourages this term to be interpreted broadly, but further develops the law to include guidelines for future court cases.
    1. Broad construction- The narrow interpretation of the words “impairment” and “substantially limiting” was changed to provide a broader spectrum of the definitions.
    2. Comparison to general population– The disability can be substantially limiting if the person cannot perform a major life activity in comparison to the general population.
    3. Primary issue is compliance, not substantial limitation– Court cases should focus on if the employer was in compliance with the law, rather than focusing on if the disability was, in fact, substantially limiting.
    4. Individualized assessment– all impairments that are alleged to be substantially limiting must be determined on an individual basis.
    5. No requirement for scientific analysis- when the performance of a major life activity by the disabled person is compared to the general population, no scientific, medical or statistical analysis is needed.
    6. No consideration of mitigating measures– when determining if a disability is substantially limiting, mitigating measures (other than ordinary eye glasses or contact lenses) may not be considered.
    7. Episodic impairments or conditions in remission– episodic impairments are still regarded as disabilities when in remission as long as the disability would limit a major life activity when active.
    8. One substantial limitation is sufficient– one determination of a limitation of a major life function is enough to classify an impairment as a protected disability.

 
If you feel that you have been discriminated against because of your disability, contact an attorney to discuss your options.

Job Applications: What are your rights and how to handle a discriminatory question.

Preparing for a new job and the application process is often nerve-wracking and stressful.  Do you ever wonder what the employer will ask you, or what qualifications you should emphasize,  to show that you are capable of performing the tasks of the job?  Preparing to answer questions such as “What can you do for our team?” or “What’s your greatest weakness?” is crucial.  But imagine your potential employer asking you “How old are you?” or, “Are you planning on having kids soon?” The interview process has changed quickly from innocent to illegal.  Before going to your next job interview, brush up on your rights as an applicant.
There are many things an employer cannot ask you on your application.  These are certain questions that violate your civil rights, such as:

  • Age/Date of birth. The Age Discrimination in Employment Act protects applicants from disclosing their age during the hiring process to prevent age discrimination.  If the applicant is less than 18 years of age, asking for the date of birth is permissible because of children’s labor laws.  After being hired, the company may ask for birth certificates or licenses to verify date of birth for pension purposes, but they may not ask for these before hiring you.
  • Race, Religion, National Origin. Title VII of the Civil Rights Act requires that covered employers consider people of all nationalities and color.  Each application should state that the company is an Equal Opportunity Employer, and at no point should you answer a question like “Where were you born”, “What is your ancestry”, or “What religious beliefs do you follow?”  There are I-9 forms that can be used to determine the status of citizenship of an applicant.  These questions do not belong on an application.
  • Physical traits, disabilities. Unless height and weight are directly related to job performance, these questions should not be on the application. The Americans with Disabilities Act prohibits general inquiries about disabilities, health problems, and medical conditions. The employer may ask if you are capable of fulfilling the requirements of the job, but they may not ask you if you have disabilities or health problems.

There are many other restrictions on the application and interview process, which should be explored by everyone looking for employment.  While most employers do not have discriminatory intentions and are attempting to find the right “fit for the job,” you may find yourself in a situation where you are asked a question that is unlawful.

What should you do when this problem arises?  First, consider the intent of the question and how it was phrased.  It is important that you understand the employer’s reason for asking the question and their method of assessment, rather than assuming they have discriminatory intentions.
There are many ways to creatively answer questions without disclosing unlawful information.  For example, if you are asked “How old are you?” the best answer is to refer the question back to the job you are applying for.  “I am of legal working age” is a fit answer.  If you are asked “What religion are you?” it is okay to answer with “My religious practices will not hinder my potential to successfully perform the tasks of this position.”  Keep in mind that your application becomes a permanent part of your file.  If you choose to be untruthful on your application, that only provides the employer a potentially valid reason to terminate you down the road.
There are times, however, that witty answers may not be enough for the prying interviewer.  If this is the case, you may follow these steps:

  1. Inform the employer that the question is illegal.  While most people wouldn’t dare correct an interviewer, it can be tactfully stated in a non-accusing way.
  2. Answer the question.  Now that you have informed them of the question being illegal, the employer would be in violation of your civil rights if the information is used against you.
  3. If you are offended, you can file a claim with the Equal Employment Opportunity Office.

Be aware that taking this stance for your civil rights is courageous and may cost you the opportunity for employment.  However, if an employer is left in the dark ages and has no qualms about violating your rights, it might be best to seek employment elsewhere.