The Law Against Disability Discrimination Is Revolutionary
Its potential remains largely untapped.
HIs workplace problems were two-fold. His schizophrenia was controlled by medications, but the medications had serious side effects, one of which was the disruption of his natural sleep cycle. It could take my client hours to wake up in the morning and get to work. As a result, he was frequently late, arriving anywhere from 15 minutes to 3 hours past his start time. My client had the worst punctuality record that I have ever seen, bar none.
The second problem was that my client’s work required him to use a computer to prepare reports on a daily basis. The problems caused by the fact that he had the use of only one arm are self evident. This affected his productivity, which subjected him to criticism and poor performance evaluations. In order to improve his productivity, my client requested that his computer be equipped with voice activated software. This technology was available at a modest cost. The software had been installed, but it was never properly configured and my client had never been instructed on how to use it.
When he came to me, my client was being subjected to discipline because of his punctuality issues. My client had a solution to the punctuality problem: he could work through lunch and work late to make up lost time. In addition, on some days he would be able to put in extra hours, and he wanted to be able to “bank” those hours for when he was unable to get to work on time. These solutions posed no logistical problems, but there were bureaucratic obstacles. Under the workplace rules, working through lunch and banking time required written approval in advance, and employees were not permitted to work late unless there was a supervisor on duty. The reality of the latter objection was called into question by the fact that my client’s time records showed that he often stayed late to get his done, but that he was never credited for that time because it was unauthorized. The employer allowed my client to do what he was requesting as an accommodation, but it did not officially recognize that fact.
I started a lawsuit in Federal Court based on the employer’s failure to provide reasonable accommodations to my client. When I learned what judge we had drawn, I knew we were in for a rocky ride. The judge was regarded as equally brilliant and idiosyncratic. His procedures for case management are nightmarish, and it can be difficult to get adequate discovery. He can be caustic and demeaning to attorneys. My own feelings about this judge are a mixture of admiration and detestation. None of that really mattered. What mattered was that I was 90 percent sure that the case would eventually be dismissed by this judge.
Basically, we were laughed out of court. I appealed.
Appeals from the Federal Courts in New York go to the Second Circuit Court of Appeals. The Second Circuit is an illustrious Court, surpassed only by the Supreme Court in terms of influence and reputation. As an institution, the Second Circuit is not afraid to break new ground, and I had a feeling that my client would get a fair shake on appeal. Yes, it is true that attendance is untouchable. On the other hand, my client was the poster boy for the law against discrimination. He had battled against significant odds and made something of himself. Self sufficiency and participation in society is the aim of the law against discrimination, and my client was a success story, not a workplace deadbeat.
To make a long story short, my client won his case on appeal. The case was sent back to the District Court with instructions to the original Judge on how to handle my client’s case. Shortly after that, we obtained a settlement that made my client happy.
What are you looking for in an employment discrimination lawyer to handle your disability discrimination claim? You want someone with experience. Someone who understands your needs. Someone who will work to reach a prompt resolution of your claim. Someone who will take your case on a contingency basis and not burden you with legal fees.
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The Federal Court System
The strength of the Federal System is also its weakness. Because they cannot be fired, each Federal Judge is a kingdom to him or herself. There are tremendous differences in how cases are handled from one judge to the next. There are differences in judicial philosophy, temperament, and the application of the rules. In terms of the latter, a judge’s approach to discovery and case management can have an impact on outcomes. The downside to the Federal System is that so much depends on the luck of the draw: judges are assigned randomly.
Should you file your case in state or federal court? Only an experienced employment discrimination lawyer can tell you.
Attendance has long been the sacred cow of employment law. Whatever an employer’s obligations to a worker, getting to work, and getting to work on time, was the employee’s problem. The courts show no mercy to employees with attendance or punctuality problems, and employers were given complete discretion in terms of time and attendance requirements. .
If You Have A Disability, Any Type of Disability, Large or Small, You Should Not Be Disadvantaged At Work
Some Representative Cases:
-- A woman with the use of only one arm denied job as toll booth operator. Favorable Settlement Obtained.-- 62 year old man fired after telling employer he needed to take a few weeks off to have a surgery. At trial, jury awarded a high six figure verdict, including 8 years salary.
-- Developmentally disabled teenager berated and terminated from part time job at chain drug store. Favorable Settlement Obtained.
-- Legally blind woman sued fast food restaurants for not providing braille menus or effective assistance: landmark court decision. Final result confidential.