Successfully defending your business against employment discrimination claims: a LOPRESTI, PLLC case study

Employment discrimination claims, even frivolous ones, can cripple your business and cost millions in time, money, resources and bad publicity.

Last fall, attorneys Anthony A. LoPresti (of LOPRESTI, PLLC) and Cornelius J. O’Reilly successfully defended a commercial client in  federal court against claims of discrimination and retaliation under the Americans with Disabilities Act (ADA) and the New York City Human Rights Law (NYCHRL). After a six-day trial, and only two hours of deliberation, a unanimous 12 member jury held that the plaintiff had failed to prove his case, and the matter was dismissed.

The plaintiff had alleged that he had an anxiety disorder which constituted a protected disability under the ADA and NYCHRL. He contended that instead of being accommodated for his disability, he was terminated from his position as a restaurant server because of his condition, and that the defendants (a highly successful restaurant group) thus discriminated against him illegally. The case highlights a lot of key issues in discrimination law, and what businesses in general can do to fight these claims.

What qualifies as a disability?

A critical issue in this case was the question of whether the plaintiff’s anxiety qualified as a disability under the ADA and NYCHRL. Obviously, a certain amount of anxiety is normal, and even common, especially when working in a high-pressure restaurant. Yet it is oftentimes unclear when anxiety rises to the level of a disability that employers must accommodate. The ADA standard for a disability is that the relevant impairment “substantially limits one or more major life activities,” which is admittedly vague. To establish that he had a disability, the plaintiff needed to: “(1) show that he suffer[ed] from a physical or mental impairment; (2) identify an activity claimed to be impaired and establish that it constitute[d] a major life activity; and (3) show that his impairment substantially limit[ed] the major life activity.” (Sternkopf v. White Plains Hosp. No. 14-CV-4076 (CS) (S.D.N.Y. Sep. 25, 2015), citing Colwell vSuffolk CntyPolice Dep’t, 158 F.3d 635, 641 (2d Cir. 1998)).

The NYCHRL standard for a disability is even lower, however. While NYCHRL disability claims are analyzed on the same analytical framework as ADA disability claims, the NYCHRL definition of a disability is extremely broad. Under the NYCHRL, a disability is “any physical, medical, mental or psychological impairment, or a history or record of such impairment”. (Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 253 (E.D.N.Y. 2015)). Here, the plaintiff advanced little evidence to this effect, and did not even meet that standard. The defense attorneys argued that plaintiff’s claim that he had extreme anxiety was unsubstantiated by any medical evidence and undercut by the plaintiff’s own medical witness.

However, the ADA also protects individuals who are “regarded as having such an impairment” as that described above. And under the NYCHRL, there is no requirement that the impairment be demonstrable by medical evidence. Hence, an employers’ perception of an employee as having a disability, whether or not the employee in fact has such a disability, is sufficient basis for a discrimination claim. So, it is important how witness testimony and social media records might reflect on how the employer and other employees perceive the plaintiff. In this case, it was clear that neither management nor the plaintiff’s co-workers believed he had a substantially limiting impairment.

What constitutes failure to accommodate?

To make a claim of employment discrimination premised on the failure to accommodate a disability in New York, a plaintiff must also make a request for a reasonable accommodation. A reasonable accommodation was defined by the Court in Vangas v. Montefiore Med. Ctr., No. 15-1514-CV, 2016 WL 2909354 (2d Cir. May 19, 2016), as an accommodation “which permits an employee with a disability to perform in a reasonable manner the activities involved in the job and does not impose an undue hardship on the employer’s business.” However, according to the New York Code of Rules and Regulations §466.11, an employee has an obligation to “cooperate with the employer in the consideration and implementation of the requested reasonable accommodation.”

Moreover, an employee must be able to show that a reasonable accommodation was available: “[a] plaintiff alleging that he was denied a reasonable accommodation bears the burdens of both production and persuasion as to the existence of some accommodation that would allow him to meet the essential eligibility requirements of the service, program, or activity at issue.” McElwee v. Cnty. of Orange, 700 F.3d 635, 642 (2d Cir. 2012). That is, if there is no reasonable accommodation that would allow an employee to perform their job without imposing undue hardship on the employer, then that employee cannot prevail on a claim of failure to accommodate. And, it has been recognized that “having someone else do part of a job may sometimes mean eliminating the essential functions of the job” Hernandez v. International Shoppes, LLC, 100 F. Supp. 3d 232 (E.D.N.Y. 2015), citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 140 (2d Cir.1995)).

 “After a six-day trial, and only two hours of deliberation, a unanimous 12 member jury held that the plaintiff had failed to prove his case, and the matter was dismissed.”

Regardless of the doubtful nature of the plaintiff’s anxiety in this case, he did not make a formal request for a reasonable accommodation. Without a request for accommodation and absent evidence that the defendants believed he had a disability, the plaintiff could not demonstrate that defendants failed to accommodate his alleged disability. The defendants were unaware that he even had a disability—nevertheless, they allowed him the breaks he requested when experiencing apparent symptoms of anxiety. But during one incident when the plaintiff abandoned his job post altogether, it was necessary for the defendants to assign other employees to do his work. Even if plaintiff had made a request for accommodation, it would not have been reasonable to expect defendants to eliminate the essential functions of his job by assigning his duties to other employees.

To avoid disputes over whether an employer failed to accommodate a disability, businesses should regularly inform their employees of their rights to secure accommodation for any disabilities they might have. Businesses would also do well to implement clear and fair procedures whereby employees can request accommodations, as well as policies for engaging in a cooperative interactive process to determine reasonable accommodations for those who need them. Having this process set out in an employee handbook is an essential step.

Causal Connection

Notably, under the ADA, the plaintiff needed to show that he was perceived as having a disability, and that this was at least a part of why he was terminated. (“A ‘causal showing for a prima facie case’ of disability discrimination is ‘requisite.’” Balgley v. N.Y. City Health & Hosps. Corp., No. 14-CV-9041 (KBF), 2017 WL 95114 (S.D.N.Y. Jan. 10, 2017), citing Pearson v. Unification Theological Seminary, 785 F. Supp. 2d 141, 163 (S.D.N.Y. 2011)). A causal connection in retaliation claims may be shown either “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Jones v. Target Corp. 15-CV-4672 (MKB), at *18 (E.D.N.Y. Jan. 4, 2016). Under the NYCHRL, as well, a plaintiff may prevail by proving “that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision (Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 253 (E.D.N.Y. 2015)).

In this case, the plaintiff offered only circumstantial evidence that his anxiety influenced the decision to terminate him. But the defense attorneys showed the jury that the plaintiff was in fact fired for a number of reasons, none of which came anywhere close to illegal discrimination. The defense made its case that the plaintiff had a problem with following the rules that any employee in a restaurant is expected to follow, and that the plaintiff used anxiety as an ad hoc excuse for his misconduct. The plaintiff’s misconduct was documented, and witness testimony from management established that the reasons for firing him had nothing to do with his alleged anxiety.

What Can Businesses Do?

Businesses can protect themselves from claims like this by documenting terminations and other adverse employment actions, making timely note of who is making decisions and why. All communications with the employee should take place in the presence of a witness or be recorded in some way, to ensure that there is evidence of the legitimate cause of an adverse employment action. Keeping record of employees’ violations of company policy is also key to building a case of why an employee is subjected to adverse actions.

The defense attorneys won the case by first establishing that the employees of the restaurant did not believe the plaintiff had a disorder that amounted to a disability and that, in any case, the plaintiff never made an adequate request for accommodation of such a disability. The defense also verified the legitimate reasons the plaintiff was terminated: namely, that he used his cellphone during work, left his work-station and abandoned his duties during his shift, was late, and missed shifts without notifying management. The plaintiff’s relatively poor sales performance and habit of showing up to work hungover were also put forward as reasons he was terminated. The defense’s case was so convincing that the plaintiff was subsequently denied a motion for a new trial, and he was taxed costs.

Hence, the evidence brought it home to the jury that the plaintiff in this case made false claims of disability discrimination. And it is the smart handling of evidence in any legal transaction that propels a party to victory. The best lawyers know how to put evidence to work, and the best way to get legal help is through their services.

To learn more about how LOPRESTI, PLLC ( can address the legal concerns of your business, prepare for and prevent workplace lawsuits, and increase the chances of successfully defending discrimination cases, please contact us.

Article by Ashley Bogdan


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