| April Monroe JSEC Program |
Monroe JSEC Presents:
Investigating Sexual Harassment & Other Employment Claims
When: Wednesday, April 28, 2010
Registration and refreshments from 7:30-8:00 am
Presentation from 8:00 -10:00 am
Where: St. John Fisher College
Ward-Haffey Hall (Building 13) – Wilson Formal Lounge
Park in the A/B Lots
Registration Fee: $20.00 Deadline: Friday, April 23, 2010
Please request a registration form by contacting Fernan Cepero at fernanc@rochesterymca.org or (585) 263-3907.
Presentation to include:
• Recent Supreme Court decisions
• Claims – What the NYSDHR & EEOC are looking for
• Avoiding discrimination claims
• Conducting an investigation
Presented by: Sharon Stiller, Esq, of Boylan, Brown, Code, Vigdor and Wilson, LLP
Sharon is the chair of the Employment Law Group at Boylan, Brown, Code, Vigdor and Wilson, LLP and the author of Employment Law in New York, the definitive guide to employment law in New York State. She and partner, James E. Metzler have published a national treatise, “Expert Witnesses: Employment Cases.” Formerly a Special Assistant District Attorney in Monroe County, Sharon represents employers before the State and Federal Courts and various administrative agencies. Her work routinely includes discrimination, defamation, contract and labor law cases. She has taught employment law for the Cornell University School of Industrial and Labor Relations and the Rochester Business Alliance. Sharon also conducts training programs for local and national employers about sexual harassment and other areas of employment law. Sharon is a fellow of the prestigious American College of Labor and Employment Lawyers and has been appointed to the employment arbitration and mediation panels of the American Arbitration Association.
THIS PROGRAM HAS BEENAPPROVED FOR 2.0 RECERTIFICATION HOURS TOWARD SPHR &PHR RE-CERTIFICATION THROUGH THE HUMAN RESOURCE CERTIFICATION INSTITUTE (HRCI). ATTENDEES WILL RECEIVE THE CERTIFICATE OF ATTENDANCE AT THE CONCLUSION OF THE SESSION. FOR MORE INFORMATION ABOUT CERTIFICATION OR RE-CERTIFICATION, PLEASE VISIT THE HRCI HOMEPAGE AT: WWW.HRCI.ORG. |
| ADA Reasonable Accomodation Analysis |
Second Circuit Rules Reasonable Accommodation Must Be Provided, Even if Not Requested by Employee
Under the Americans with Disabilities Act of 1990, employers are required to provide disabled employees with a reasonable accommodation when necessary to allow that employee to perform the essential duties of their position. Generally, it is the responsibility of an employee with a disability to advise the employer of the existence of the disability and the need for a reasonable accommodation. After such a request, the employer and the requesting employee should engage in the interactive process—a discussion between the employer and the employee to identify a suitable accommodation.
An important exception to this general rule has developed, due to a decision of the United States Court of Appeals for the Second Circuit issued on July 2, 2008. In Brady v. Wal-Mart Stores, Inc., the Second Circuit considered whether an employee with an “obvious disability” must first request a reasonable accommodation before the employer is obligated to engage in the interactive process with the employee. Plaintiff Patrick Brady has cerebral palsy, which manifested itself in several known and visible manners. Indeed, the trial testimony revealed that Brady’s disability was clear and obvious to anyone who observed him. Despite his obvious disability, Brady did not believe that he needed any accommodation to perform the essential duties of his job and, therefore, never requested that his employer provide him with a reasonable accommodation.
Considering Brady’s claim that Wal-Mart failed to accommodate his disability, the Second Circuit first re-confirmed the general rule that a disabled employee must advise the employer that they have a disability and request a reasonable accommodation. However, the Court concluded that an exception to this general rule exists—“an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled.” The Second Circuit held that, when an employee’s disability is obvious, the employer has the obligation to initiate the interactive process and determine whether a reasonable accommodation exists that will permit the employee to perform all of the essential duties of their position.
The Court reasoned that the notice requirement of the general rule (requiring a request from the employee) is “rooted in common sense” and, therefore, an employer need not receive a notice from the employee where the disability is obvious or otherwise known to the employer. Clearly, an employer cannot discriminate on the basis of disability if it does not know of the disabling condition; similarly, the notice requirement prevents an employee from keeping their disability a secret but nevertheless filing a claim for failure to accommodate their disability. The Court found that both of these concerns are obviated and irrelevant when the disabling condition is obvious or otherwise known to the employer.
Due to this new exception to the general rule requiring that an employee request that the employer provide a reasonable accommodation, employers must be extra vigilant in working with disabled employees. If you have an employee with an obvious disability, it is now incumbent on the employer to approach the employee and commence the interactive process—the employer must initiate the conversation about whether the employee requires a reasonable accommodation. Similarly, the same obligation would seem to exist if the employer otherwise knows of the employee’s disabling condition—for example, where the employer knows of the condition because the employee took a Family and Medical Leave Act leave due to their own serious health condition, or the employee has submitted a workers’ compensation claim concerning their own disabling condition. In these circumstances, it would seem prudent for an employer to initiate the interactive process with the employee, determine whether a reasonable accommodation is appropriate and identify that accommodation.
If you have questions concerning your compliance with the Americans with Disabilities Act, or this new requirement of that statute, contact Chapter Legislative Representative Paul F. Keneally, Esq. at 585-258-2882 or at keneally@underbergkessleer.com. |
|
