California Supreme Court Decision Could Expand Standing For Website Accessibility Claims

Q.  Does a consumer need to actually try to buy a product or service at a store to have standing to sue under the ADA for failure to maintain an accessible website?

A.  Evolving case law regarding website accessibility under the Americans with Disabilities Act (ADA) and comparable state laws continues to impact companies across the country. In the past, courts have required plaintiffs to show that the allegedly discriminatory website prevented their full use and enjoyment of a connected brick-and-mortar location. More recently, however, courts have looked favorably on claims even absent such an alleged deprivation. A recent opinion from the Supreme Court of California not directly addressing ADA website compliance appears nevertheless to further cement this shift, allowing standing for discrimination claims regarding a website under California’s Unruh Civil Rights Act based on an individual’s intent to use the website’s services in and of themselves. This shift further emphasizes the need for commercial website owners to ensure that their online content is accessible to the visually impaired in compliance with the widely adopted Web Content Accessibility Guidelines (WCAG) 2.0.

For further information, click here.

Jeffrey M. Goldman, Tracey E. Diamond and Victoria D. Summerfield

New York State Expands Equal Pay Protections

Q: What do New York employers need to know about the recent amendment to the state’s pay equity law?

A: In November 2015, New York became one of the first jurisdictions to pass a pay equity law that was more extensive than the federal equal pay laws.  On July 10, 2019, Governor Cuomo signed an amendment to New York Labor Law Section 194, further expanding its scope.

Under the current law, employers are prohibited from paying an employee a lower rate than someone of the opposite sex for “equal work” that is performed under similar working conditions. The amended law makes it illegal for an employer to pay an employee less based on numerous characteristics in addition to sex.  These additional protected characteristics include age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.

The amended law not only expands the current prohibition against gender-based pay inequity, but it also requires equal pay for “substantially similar work,” as opposed to the previous requirement of “equal” work. Specifically, it requires only a showing that employees are engaged in “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”

Employers should be aware that a violation of this law could result in an award to an employee of attorney’s fees and triple damages.

Importantly, the new pay equity legislation will still maintain four exceptions protecting employers from liability where employees do not receive equal pay for substantially similar work. These are where pay is based on a:  (1) seniority system; (2) merit system; (3) system which measures earnings by quantity or quality of production; and (4) bona fide factor unrelated to protected class status (such as education, training or experience) that is job-related and consistent with business necessity.

This new legislation will take effect on October 8, 2019.

Next Steps for Employers

These developments follow the trend of the equal pay movement taking place in cities and states across the country. It is recommended that employers review their payroll to ensure that salaries, hourly rates, benefits and all forms of compensation are equal among employees performing substantially similar work.  As a reminder, when evaluating what is “substantially similar work,” the focus should be on the job duties being performed and not simply on job titles.

For assistance in ensuring that your policies and practices comply with this amendment, we recommend consulting with labor and employment counsel.

Leigh McMonigle

New York Enacts Broad Changes to New York Human Rights Law

Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?

A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment.  Governor Cuomo has not yet signed the bill, but is expected to shortly.

As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.

Definition of Harassment

The NYHRL currently prohibits harassment based on gender, race, religion, sexual orientation, gender identity or expression, or national origin. The amendments expand these protected categories to include age, creed, color, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because an individual has opposed any practices prohibited by the NYHRL or participated in any proceeding under the NYHRL.

The amendments also significantly expand the definition of harassment. Currently, to prove harassment under the NYHRL, a plaintiff must demonstrate that the harassment was “severe and pervasive.”  Under the amendments, a plaintiff need only show that the harassment “subjects an individual to inferior terms, conditions, or privileges of employment.”  Employers will no longer be permitted to rely on the affirmative defense that the employer had an effective complaint procedure, the individual did not take advantage of it, and there was no adverse employment action.  Rather, the employer’s only affirmative defense is if the harassing conduct “does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”  Lowering the standard from “severe or pervasive” harassment to harassment that rises above “petty slights or trial inconveniences” greatly expands the universe of potential harassment claims and aligns the New York state law with the standards set forth in the New York City Human Rights Law.

The new definitions will be effective 60 days after the bill become law.

Definition of Employer

The amendments remove the NYHRL’s current carve-out for employers with fewer than four employees. Beginning 180 days after the bill become law, the NYHRL will apply to all employers regardless of size

Inclusion of Non-Disclosure Clauses in Settlement Agreements

New York employers may recall that, in 2018, the state passed a new law prohibiting non-disclosure provisions in any settlement agreement of a sexual harassment claim unless the complainant prefers to include the provision, has 21 days to consider it, and has a seven-day revocation period. The amendments expand these prohibitions to settlement agreements of any discrimination claim, rather than just claims of sexual harassment.  In addition, non-disclosure provisions are void to the extent that they prohibit or restrict the complainant from participating in an investigation by a government agency or disclosing any facts necessary to receive unemployment insurance or other public benefits.

These changes will be effective 60 days after the bill becomes law.

Sexual Harassment Training

The amendments expand upon last year’s new law requiring employers to give annual sexual harassment training. Employers will be required to train employees and distribute policies in the employees’ primary language.  The New York Commissioner of Labor will create versions of the template sexual harassment training and policy in other languages.  If there is not a template available from the Commissioner in an employee’s primary language, the employer can provide the policy and training in English.

Statute of Limitations

Effective one year after the bill becomes law, the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights will be increased to three years, as compared to the current one year statute of limitations.

Steps for Compliance

To prepare for the amendments, employers should review and update all relevant policies and training materials. While anti-harassment should always be an area of focus for employers, employers should be especially aware of any potentially harassing situation given the forthcoming lower standard for harassment under New York State law.

Jessica Rothenberg

Second Circuit Court of Appeals Recognizes Hostile Work Environment Claim Under the ADA

Q.  An employee at one of my company’s facilities in New York recently complained to his supervisor that his coworkers made fun of his disability. Can an employee with a disability file a “hostile work environment” claim under the Americans With Disabilities Act?

A.  On March 6, 2019, the Second Circuit Court of Appeals ruled for the first time that hostile work environment claims are available to plaintiffs under the Americans with Disabilities Act (ADA). With its decision in Fox v. Costco Wholesale Corporation, the Second Circuit joins the Fourth, Fifth, Eighth and Tenth Circuits, which likewise have found that hostile work environment claims are cognizable under the ADA.

In Fox v. Costco, the plaintiff suffered from Tourette’s syndrome and obsessive-compulsive disorder, conditions which manifested in verbal tics and other behavioral issues.  He alleged that, following a change in management, he was subjected to a hostile work environment by a new manager, who reprimanded the plaintiff for his work on certain tasks that non-disabled individuals performed in the same way but were not reprimanded for.  Later, the employer disciplined the plaintiff following complaints from customers regarding his behavior, which included an incident where he told a customer that she was “the love of his life.”  After investigating these incidents, the employer suspended the plaintiff for several days and transferred him to another job with the same pay and benefits.

Even after the transfer, however, the plaintiff alleged that his new supervisor made harassing comments to him. In addition, his coworkers began mimicking his behavioral tics, allegedly taunting him with comments such as “hut-hut-hike,” a mocking reference to a behavioral tic in which plaintiff sometimes crouched like a football player to touch the floor before moving forward.  The plaintiff alleged that the employer’s managers witnessed these comments over a period of “months and months,” but failed to act.  After plaintiff had a panic attack at work one day, he went out on indefinite medical leave and did not return to work.

The district court granted summary judgment to the employer on the plaintiff’s claims for hostile work environment, disparate treatment, failure to accommodate, and retaliation under the ADA and New York State Human Rights Law. Regarding the hostile work environment claim, the district court found that the plaintiff failed to prove that the alleged conduct was sufficiently “severe and pervasive” because he offered no details regarding the persistence of the “hut-hut-hike” comments, such as how many times the comments were made per shift, week and/or month.  The district court also ruled that the conduct and comments at issue were not objectively hostile and abusive.

On appeal, the Second Circuit affirmed the district court’s grant of summary judgment with respect to the plaintiff’s claims for disparate treatment, retaliation, and failure to accommodate. However, the Second Circuit also found that the plaintiff offered enough evidence to present the claim to a jury to decide “whether the frequency and severity of the mockery rose to the level of an objectively hostile work environment.”  Specifically, the plaintiff’s testimony that his coworkers mocked his disability for months—in the presence of managers who did nothing to prevent the comments—was sufficient to defeat summary judgment.

The court based its decision on the plain language of the ADA, which prohibits employers from discriminating “against a qualified individual on the basis of disability in regard to . . . terms, conditions, and privileges of employment.” As the court explained, this language was borrowed from Title VII, and since the ADA “echoes and expressly refers to Title VII” and Title VII allows for a hostile work environment claim, the same standard should be applied to a hostile work environment claim under the ADA.

Having found that the ADA can serve as a basis for a hostile work environment claim, the court proceeded to analyze whether the plaintiff presented evidence that the alleged harassment was sufficiently severe or pervasive to meet the standard. The appeals court rejected the district court’s finding that the plaintiff was required to present specific evidence “regarding the number of times the comments were made per shift, week and/or month” in order to show that the harassment was pervasive.  In this respect, the Second Circuit explained, “[t]he district court demanded too much of [plaintiff].”  Instead, the plaintiff was required to demonstrate only that the conduct he complained about was “objectively abusive.”

In light of this decision, now may be a good time to emphasize to managers and supervisors that they must take action if they become aware of employees making inappropriate remarks in the workplace based on an individual’s protected status, including disability.

Rogers Stevens

New Jersey Employers May Be Required to Accommodate an Employee’s Use of Medical Marijuana Outside the Workplace

Q.  Now that medical marijuana is legal in New Jersey, does the Law Against Discrimination require employers to provide an accommodation for medical marijuana use?

A.  While New Jersey employers are not required to accommodate the use of medical marijuana in the workplace, they may be required to accommodate an employee’s off-duty use of medical marijuana outside of the workplace, according to a recent decision. On March 27, 2019, the New Jersey Appellate Division reversed a lower court’s ruling that state law does not provide employment protections for medical marijuana users. Although the court affirmed that employers are not required to accommodate an employee’s use of medical marijuana in the workplace, the court found that failure to accommodate off-duty use of medical marijuana outside the workplace could give rise to liability under the New Jersey Law Against Discrimination (NJLAD).

In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, a funeral director, alleged that he was discriminated against when the employer fired him for using medical marijuana, despite the fact that he had a prescription to use it to treat pain caused by cancer.  In 2016, the plaintiff was injured in a car accident while on the job, resulting in a trip to the emergency room.  At the hospital, he informed the treating staff that he had a license to use medical marijuana.  However, the physician in charge did not request a drug test based on an assessment that the plaintiff was not impaired at the time of the accident.

Despite the doctor’s assessment, the employer later requested that the plaintiff take a drug test, to which the plaintiff reluctantly agreed. After he failed the test, the plaintiff was terminated.  The employer first told the plaintiff that he was being terminated because the test revealed that he had drugs in his system.  However, the employer later sent a letter stating that the plaintiff was terminated not because of his use of medical marijuana, but rather because he failed to disclose his use of a medication which might affect his ability to safely perform his job duties, as required by the employer’s policy.

The plaintiff then filed suit, alleging that the employer violated the NJLAD by terminating his employment based on a positive drug test, given that he was prescribed medical marijuana by his doctor, as permitted by the New Jersey Compassionate Use of Medical Marijuana Act (CUMMA). In granting the employer’s motion to dismiss, the trial judge determined that CUMMA carries no employment-related protections for licensed users of medical marijuana.  The lower court explained that the termination was justified based on a positive drug test and a violation of the employer’s drug use policy.

Reversing the lower court’s decision, the Appellate Division first rejected the plaintiff’s argument that the disability discrimination protections under CUMMA and the NJLAD were in conflict, pointing to the language in CUMMA providing that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” As the court explained, “[t]hese words are unambiguous; they require no interpretation and permit no deviation.”  The court emphasized that CUMMA “neither created new employment rights nor destroyed existing employment rights” that may be available to employees under other statutes like the NJLAD.

Next, the Court noted that the plaintiff did not claim that the employer failed to accommodate his use of medical marijuana in the workplace, but rather, that the employer failed to accommodate his off-duty use of medical marijuana.  As the court explained, even if CUMMA does not obligate employers to provide a reasonable accommodation for medical marijuana use in the workplace, such an obligation may arise under the NJLAD.  Given that the plaintiff did not request an accommodation to use medical marijuana in the workplace, the Appellate Division concluded that his NJLAD claim should not have been dismissed.  The Appellate Division reversed and remanded the case for further proceedings on the question of whether an employee’s off-duty use of medical marijuana should have been accommodated under the facts presented.

The Appellate Division’s decision in Wild v. Carriage Funeral Holdings, Inc. indicates that, while CUMMA does not require employers to accommodate medical marijuana use in the workplace, the failure to accommodate a medical marijuana user, at least when the use is outside of the workplace and during non-work hours, could lead to liability under  the NJLAD.

At the very least, employers should exercise caution when taking an adverse employment action against an employee who has a prescription for medical marijuana following a positive test. Because drug tests can detect marijuana in a person’s body for some period of time after it is used, a positive test may reveal an employee’s use of marijuana during non-working hours.  This raises the possibility that, like in Wild, an employee who is not impaired at the time of a workplace accident could nevertheless test positive for marijuana use afterwards, based on use that occurred outside the workplace.  Given that the NJLAD may require an accommodation for an employee’s off-duty use of medical marijuana, employers should consult with legal counsel prior to disciplining or terminating an employee who tests positive for marijuana.

Rogers Stevens