- "The plaintiff bears the burden of showing by a preponderance of the evidence that she has a disability but can perform the essential functions of the job with a reasonable accommodation."
- “Essential functions are ‘the fundamental job duties of the employment position.’”
- "In determining what duties are 'fundamental,' the ADA expressly provides that 'consideration shall be given to the employer’s judgment as to what functions of a job are essential.'"
- “[I]f an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.”
- "Also relevant are the “work experience of past incumbents in the job.”
- "The current work experience of incumbents in similar jobs.”
- "Whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential” and “[i]f so, then the question of essentiality comes down to ‘whether removing the function would fundamentally alter that position.’
Tuesday, August 26, 2025
Remote Work and the ADA: Why Employers Should Think Twice Before Mandating Return to Office
Monday, November 18, 2024
Amazon's Exposure to Failure-to-Accommodate Claims Based on New Reasonable Accommodation Policy
Amazon recently updated its Reasonable Accommodation Policy as to employees seeking disability accommodations to work from home.
Here is an explanation of their updated policy based on Bloomberg Reports.
In a nutshell, the policy includes a more rigorous vetting process, multilevel leader review, and month-long return to the office trials.
As a result, Amazon may wind-up defending more failure-to-accommodate claims while enacting this policy update. Specifically, the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations unless doing so would cause an undue hardship. The ADA mandates that employers engage in an interactive process, assessing requests individually in a timely manner. By implementing a more complex approval system, Amazon may be making it harder for employees with disabilities to receive the accommodations that they need, potentially violating the ADA.
First, the new process requires a complex "multilevel leader review," which could lead to significant delays before employees' requests are approved. This extended waiting period could violate the ADA's requirement to address requests for accommodations in a timely manner, which is seen as a constructive denial of the requested accommodation that makes a failure-to-accommodate lawsuit ripe for adjudication.
Additionally, the policy is problematic because it applies to both new requests and extensions of existing accommodations. Employees who have already been granted accommodations may now be required to return to the office for month-long trials to assess whether their needs are being met. This one-size-fits-all approach may not be suitable for all disabilities, and pushing employees back to the office without considering their specific needs could be seen as a failure to provide reasonable accommodation in violation of the ADA.
If employees are unable to obtain the accommodations they require and are forced to work in ways that don’t suit their disabilities, they may feel forced to leave the company. In such cases, this could be considered constructive discharge, where the work environment becomes so intolerable that employees feel they have no choice but to quit.
If Amazon's new policy fails to comply with the ADA or similar state and local laws, it could face serious legal consequences. Affected employees should file complaints with the Equal Employment Opportunity Commission (EEOC), which is a condition precedent to bringing an ADA claim. Remember, dependent on location, such a charge must be filed with EEOC in as early as 180 days (some states extend this to 300 days, but federal sector employees only have 45 days to contact an EEO Counselor to get the ball rolling).
Amazon's actions highlight the need for employers to carefully balance workplace goals with their legal obligations to uphold disability rights under federal, state, and local laws.
Friday, October 11, 2024
Brick-and-Mortar Businesses Without Accessibility Features on Websites Will Continue to Get Sued
A recent Federal Case highlights why businesses with physical locations must make sure that their websites are accessible to people with disabilities (e.g., screen readers).
Jose Mejia, who is legally blind, sued High Brew Coffee after their website prevented him from using his screen-reading software, making it impossible for him to complete his purchase. He claimed this was disability discrimination under Title III of the Americans with Disabilities Act (“ADA” or “Title III”), which prohibits discrimination on the basis of disability in places of public accommodation. (42 U.S.C. § 12182(a)).
Mejia claimed that accessibility issues with High Brew’s website constitute disability discrimination under Title III, as they prevented him from shopping as a sighted customer would. High Brew argued that because its website wasn’t tied to a physical location, it didn’t count. The Court sided with High Brew, ruling that websites without a physical counterpart aren’t subject to Title III in New York.
The opinion is a reminder that businesses with both websites and physical locations are still exposed to a discrimination case. This means that if your company operates a website tied to a physical store, you may face legal repercussions if it does not comply with accessibility standards. It's important to note that, while not available under Title III, emotional distress damages - that’s fancy lawyer talk for potential big bucks - are recoverable under the New York State Human Rights Law, Executive Law § 296(2)(a), and New York City Human Rights Law, New York City, N.Y., Code § 8-107(4) in these cases.
And for anyone like Mejia who has run into accessibility barriers on a website connected to a physical location, it’s worth contacting an attorney. You may have a case under the ADA & New York laws that protect against disability discrimination.
Monday, September 30, 2024
EEOC's Disabled Federal Employee Retention Report - Discrimination Issues Lower Job Retention
The Equal Employment Opportunity Commission (EEOC) released a Retention of Disabled Employee Report with recommendations for federal agencies to improve retention of disabled employees in federal public sector jobs.
The Report is based on 3 years of data & recommends that Fed Agencies should have:
- Disability accommodation procedures that comply with federal law;
- Compliance procedures for processing personal assistance services requests; &
- Systems for processing such requests & publicizing them to employees & applicants on their website.
Friday, September 06, 2024
New NYS Law Impacting Disabled Public Employees
Disability discrimination of public employees got a lot more interesting on September 4, 2024, when NYS Governor Kathy Hochul signed into law Assembly Bill A09935, which requires public employers who deem employees unfit after requiring medical examinations to provide those employees with access to all documents supporting their decisions.
Under the Civil Service Law, employers can seek examinations of employees deemed unfit to perform the duties of their job due to a mental or physical disability, where such disability is also grounds for the employee to receive a reasonable accommodation, under the New York State Human Rights Law and the Federal Americans with Disabilities Act, if such employees can continue to perform the essential functions of their job with the accommodation.
Now, employers must provide, in addition to a notice of the factual basis of its decision, copies of communications between the employer and the medical examiner overseeing the claim, as well as records supporting the determination, to employees who appeal such determinations.
Because employees have only 10 days after the factual notice is served to request a hearing, the law aims to afford employees a complete understanding of the unfitness determination and its basis, allowing them to either make changes to be deemed fit or to be fully informed at a hearing. This can also be essential evidence in a failure-to-accommodation discrimination case.
The new law goes into effect on January 1, 2025.
Contact an attorney
Wednesday, March 13, 2024
Proposed Rule Aims to Enhance Air Travel Safety for Passengers with Disabilities
Key Objectives of the Proposed Rule:
- Addressing Mishandled Mobility Devices: Passengers with disabilities often experience damage or loss of their mobility devices during air travel, leading to significant distress and inconvenience. The proposed rule seeks to establish stringent guidelines to mitigate such incidents and hold airlines accountable for the proper handling of mobility devices.
- Ensuring Proper Transfers: Passengers with disabilities often face challenges in navigating these transitions, leading to potential safety risks and infringements on their dignity. The proposed rule aims to implement measures to ensure that passengers receive the necessary support and assistance throughout the travel process.
Thursday, November 30, 2023
Lieb at Law Represents Class Action Hearing Impair Tenants in Landmark NYC Disability Discrimination Case
Background of the Case
Elewood Torres, the plaintiff, filed a class-action lawsuit in 2022, challenging the failure of his Lower Manhattan apartment building's owners to provide necessary services for tenants with hearing disabilities. Despite the building at 174-184 Forsyth St. being funded to provide accessible housing, critical safety improvements have been lacking.
Key Issues at Stake
The lawsuit points to the absence of essential features such as video cameras in elevators, smoke alarms with strobe lights and bed shakers, and security staff proficient in American Sign Language. These deficiencies not only violate the Americans With Disabilities Act, and the NYS / NYC Human Rights Laws, but also pose a significant risk to the safety and well-being of the residents.
The City's Position and Plaintiff's Response
The city contends that it no longer owns the property and that the ADA does not apply to private residential complexes. However, Torres disputes this claim, highlighting that the ownership of the building reverted to the city due to breaches in the sale agreements. This aspect is crucial in determining the applicability of the ADA and the city's responsibilities.
Lieb at Law's Stance
Representing Torres, Lieb at Law's Associate Attorney, Richard Hermer-Fried, emphasized the gravity of the situation: "To this day, defendants have not provided bed rockers to wake tenants in case of a fire. It's utterly egregious that nothing's been done to protect these individuals." The firm's commitment to advocating for the rights of individuals with disabilities is evident in its vigorous pursuit of this case.
What's Next in the Case
With a preliminary injunction requested by Torres to compel the defendants to install the necessary improvements, and the court ordering documentation of such improvements, the case is poised for critical developments. Lieb at Law remains steadfast in its pursuit of justice for Elewood Torres and other similarly situated tenants.
Wednesday, October 18, 2023
Understanding the EEOC's Rising Focus on Disability Discrimination: A Call to Action
Recent trends have seen the Equal Employment Opportunity Commission (EEOC) significantly bolster its scrutiny on workplace discrimination, particularly on the front of disability discrimination. As advocates for those who face injustice, Lieb at Law, P.C. delves into these trends and urges those affected to seek their rightful legal recourse.
The EEOC’s Stand
The EEOC's resolve to combat disability discrimination has been noticeably robust. In its recently concluded fiscal year, the EEOC filed a staggering 144 lawsuits, a 55% increase from the previous year. Of these, 48 lawsuits were laser-focused on disability discrimination. That's a 77% rise from the 27 filed in the fiscal year of 2022. To be clear, this is in addition to the countless number of private lawsuits in federal and state courts throughout the country plus all of the administrative claims resolved at places like state / county / city divisions of human rights.
Other Discrimination Categories
While disability discrimination took center stage, the EEOC has also been active in pursuing cases involving retaliation, race, and religion discrimination. This underscores the broader drive to ensure fair treatment for all, regardless of one's personal attributes or beliefs.
Notable Cases
A recent case that highlights this mounting concern involved Alliance Ground International, a cargo logistics company based in Chicago. The EEOC alleges the company discriminated against a deaf individual, refusing him employment. In another case, the EEOC sued Union Pacific Railroad for terminating employees they considered "color vision deficient." These are but a few examples among many, revealing a troubling pattern of discrimination.
Mental Health: An Emerging Concern
Adding to the spectrum of disability discrimination, the EEOC has started to spotlight employers who fail to accommodate mental impairments. Recent cases have encompassed issues related to autism spectrum disorder, ADHD, depression, anxiety, and PTSD.
Complexities of the ADA
The Americans with Disabilities Act (ADA) is a lifeline for many. However, its complexity can often be a double-edged sword. On one side, it offers protection to the disabled, but on the other, its intricacies can lead employers astray, sometimes unintentionally.
A Growing Regulatory Landscape
With the EEOC's budget set to grow by $26 million in the upcoming fiscal year, their vigilance is only expected to intensify. Topics like racial justice, diversity, equity, inclusion, and systemic discrimination are likely to gain even more prominence.
Your Right to Fair Treatment
No one should suffer discrimination in silence. The numbers and the cases are clear indicators that disability discrimination is an alarming concern that needs addressing. If you or someone you know has faced discrimination of any form, it's crucial to understand your rights and take action.
Lieb at Law, P.C.: Advocates Against Discrimination
At Lieb at Law, we stand steadfast in our mission to support and represent those who've been discriminated against. Armed with expertise, experience, and a deep understanding of the complexities surrounding the ADA, we're here to guide you every step of the way.
Have you faced discrimination? Don't suffer in silence. Reach out to Lieb at Law, P.C. today, and let us champion your cause.
Wednesday, February 09, 2022
New York Establishes Office of the Advocate for People with Disabilities
New law establishes Office of the Advocate for People with Disabilities. The Office assures that disabled people are afforded the opportunity to exercise all of the rights and responsibilities accorded to citizens of New York.
Operating under the Department of State, the Office shall advise and assist state agencies in developing policies designed to help meet the needs of the disabled by:
- Coordinating the implementation of the Americans with Disabilities Act;
- Ensuring that state programs do not discriminate against disabled people;
- Ensuring that programs provide appropriate services for disabled individuals; and
- Working with state agencies to develop legislation and potential regulatory changes.
Landlords should be actively removing barriers to access so that this new Advocate doesn't bring suit against them for violations of the Americans with Disabilities Act (ADA).
Monday, January 10, 2022
New Workers' Compensation Law Allows for Attorneys' Fees
A new law seeks to reduce bias against injured workers in low-income brackets who cannot afford attorneys' fees.
New York's Workers’ Compensation law has been amended to include awarding attorneys’ fees for the following services:
- 1/3rd of one week’s compensation for awards made directing the continuation of weekly compensation benefits for temporary total or partial disability;
- 15% of the increased compensation when an award is made that increases the amount of compensation awarded or paid for a previous period(s) of temporary total or partial disability;
- 15% of the compensation due in excess of the employers/carrier’s previous payments when an award is made for loss of use or permanent facial disfigurement;
- 15% of the compensation due in excess of the employer or carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for permanent total disability or permanent partial disability;
- 15% of the compensation due in excess of the employer/carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for death benefits; and
- 15% of any benefits to be paid by the employers/carrier when an award is made under a waiver agreement.
Thursday, December 16, 2021
Americans with Disabilities Act Update: COVID-19 Considered a Disability for Purposes of Employment Discrimination
Thousands of Americans who have contracted COVID-19 may now qualify for disability under the Americans with Disabilities Act (ADA).
The
Equal Employment Opportunity Commission (EEOC) passed new ADA guidelines to cover individuals with COVID-19 disabilities.
There
are three ways a person can be deemed to have a COVID-19 disability under
the ADA.
- A person with COVID-19 has an Actual Disability if the person’s medical condition or any of its symptoms is a "physical or mental" impairment that "substantially limits one or more major life activities." An individualized assessment is [required] to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination.
- A person who has or had COVID-19 can be an individual with a Record of a Disability if the person has "a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities, based on an individualized assessment.”
- A person is Regarded as an Individual with a Disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has [COVID-19].”
In some cases, regardless of whether an individual’s
initial case of COVID-19, itself, constitutes an actual disability because the case-by-case evaluation does not result in such a determination, that individual’s COVID-19 may end up causing impairments that are themselves
disabilities under the ADA.
If you meet either the “actual" or “record of”
definition of disability you may be eligible for a reasonable accommodation at the workplace.
It is unlawful for employers to discriminate against
employees or applicants based on a COVID-19 disability. Further, it is unlawful
for employers to refuse to provide reasonable accommodation for those with COVID-19
disabilities if it does not place an undue hardship on the employer.
If you believe you’ve been the target of COVID-19 Disability Discrimination by an employer then you should seek the counsel of an attorney to determine the extent of your injuries. Your attorney can assist you filing a legal complaint with EEOC. If the employer is found to have acted unlawful according to the ADA, then your attorney can leverage your position so you are awarded compensatory damages, penal damages, penalties, and attorney fees.
Also, don't forget that state and local anti-discrimination laws have lower standards to qualify for protection so even if you don't qualify under the ADA, check your state, county, city, or town / village.
Tuesday, August 25, 2020
Discrimination: Disabled's Right to Reasonable Accommodation to Eliminate Possible Exposure to COVID in the Workplace
In plain English, if you have an employee with a pre-existing disability that either "puts her at greater risk during this pandemic" or, if such disability will be "exacerbated by the pandemic," and such employee requests a reasonable accommodation, then, you better either grant that request or engage in the "interactive process" to avoid getting sued.
Thursday, August 13, 2020
HIV Patients Have Right to Cosmetic Surgery
The Federal Courts, in the Southern District of New York, awarded $125,000 to each individual who was denied cosmetic surgery due to their HIV-Positive status in interesting discrimination case.
The case was brought under Title III of the Americans with Disabilities Act of 1990 (ADA) and the New York City Human Rights Law.
The penalty was based upon the HIV-Positive individuals' traumatic experiences, resulting in significant feelings of humiliation, shock, and worthlessness, as well as anxiety, stress, sleeplessness, and feelings of stigma and humiliation.
Again, $125,000 was awarded to each victim of discrimination who experienced emotional distress.
What do you think the award should have been?
- Nothing
- $20,000
- $125,000
- $1,000,000
Thursday, July 02, 2020
5 Step Process For Employers/Landlords to Protect Against Disability Discrimination Lawsuits for Failure to Accommodate
To mitigate exposure to disability discrimination lawsuits (for failure to accommodate), employers/landlords should follow these steps:
1) Disseminate Policy: Employers/landlords should inform employees/tenants, in writing, that reasonable accommodations are provided to qualified individuals and of the process to request a reasonable accommodation. Employers should include its reasonable accommodation policy in its employee handbook and landlords should include its reasonable accommodation policy in its application and/or make the policy available onsite.
2) Provide Reasonable Accommodation Request Form: Employers/landlords should prepare a form for individuals requesting an accommodation to complete. Questions on the request form should include:
- General information of employee/tenant (i.e. name, contact information)
- Nature of the disability
- Requested/suggested accommodation(s)
- Review accommodation request
- Request supporting medical documentation if necessary from employee/tenant to properly evaluate request
- Discuss effectiveness/feasibility/reasonableness of potential accommodation(s) with employee/tenant
- Cost of the accommodation
- Resources of the employer/landlord
- Impact on operation of workplace/facility
- A summary of the interactive process
- The accommodation provided
- If an accommodation is denied, provide a detailed explanation (e.g. absence of an accommodation that would permit employee to perform essential functions of position, undue hardship)
- If accommodation request is granted, a date to follow up on effectiveness of accommodation
Tuesday, May 19, 2020
FedEx Ground Agrees to Pay $3.3 Million to Settle Disability Discrimination Lawsuit
The consent decree entitles the 229 aggrieved individuals to a share of the $3.3 million settlement. In addition, the settlement requires FedEx Ground to provide accommodations to deaf and hard-of-hearing package handlers including access to live and video remote sign language interpreting, closed captioning on videos and provision of non-audible cues (i.e. vibration) on scanning equipment. Finally, the consent decree requires that FedEx Ground institute safety measures to protect hearing compromised package handlers including ensuring that motorized equipment include visual warning lights and providing personal notification devices that will notify hearing compromised handlers of an emergency.
This settlement should serve as a reminder to employers to ensure that procedures are in place for employees to request a reasonable accommodation and that accomodation requests are granted to the extent that they are reasonable and can assist employees in performing the essential functions of their positions.