Thursday, April 26, 2012

Disability and national origin discrimination claims fail

Although Congress a few years ago amended the Americans with Disabilities Act to broaden the definition of "disability," that law is not retroactive, and cases governed by the old ADA are still percolating through the system. Those cases often fail because the plaintiff does not have a "disability" under the old law. This is one of those cases.

The case is Joseph v. North Shore University Hospital, a summary order decided on April 3. Under the old ADA, walking was a major life activity. If Joseph was substantially limited in her ability to walk, she would be protected under the statute. Her case fails. The Court of Appeals (Livingston, Lynch and Droney) says:

On de novo review of the record, we identify evidence that Joseph suffered from a bunion and pain on her toenail following surgery which prevented her from wearing stockings with closed shoes. While these symptoms caused Joseph some difficulty with walking, see 29 C.F.R. § 1630.2(i) (1991), Joseph did not adduce sufficient evidence to support a finding that she was “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i) (1991), superseded by 29 C.F.R. § 1630.2(j) (2011). Indeed, Joseph testified that she was not limited in performing her work duties by her foot condition.
 Joseph, who is Haitian, also brought a national origin discrimination claim. Her evidence for this was a disciplinary notice reprimanding her for speaking in her native French in violation of the hospital's policy to speak English in the office unless the employee is speaking with a patient who spoke another language. The Court rejects this case: "Joseph adduced no evidence to support her claim that other employees were permitted to speak Spanish in the workplace without being disciplined and thus no evidence that she was treated differently by the Hospital because of her Haitian origin."

You may ask whether it violates the civil rights laws to require employees to speak English in the workplace. It does not. The Second Circuit cites a 29 year-old case that says so, Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983) (observing that a policy having a preference for English over all other languages is not evidence of discriminatory intent).

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