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NY Expands Disability Accommodation to Include Indefinite Leave, and other Weekly News

In one of last week’s biggest cases, the New York Court of
Appeals unanimously voted that under the NYC Human Rights Law indefinite leave
for a disabled employee is not a per se unreasonable accommodation and that the
employer instead must prove hardship.
This holding, although foreseeable based on the statute’s expansive
intent, contradicts similar state and federal holdings that did not permit indefinite
.  The Court noted that the NYC law does
not include a definition of “reasonable accommodation” or require the ability
to perform an employment function, but instead requires an employer to prove
undue hardship.  Basically, the city law
has a different pleading requirement that is much more favorable to employees
than its state and federal equivalents.

Continuing the EEOC’s theme of protecting the “most
vulnerable workers,” the agency recently settled with a Colorado moving company
for $450,000 after the agency had alleged discrimination on the basis of
national origin
.  The EEOC had alleged
that the company subjected Hispanic employees to abusive language and poor
working conditions, and that after some employees complained the company
retaliated by firing workers and reducing hours.  The company had also employed what the EEOC
termed a “restrictive language policy.”
Overall, the EEOC’s latest settlement continues to demonstrate the
agency’s commitment to aggressively pursuing national origin discrimination

Finally, a recent 5th Circuit decision in another
EEOC litigation upheld the possibility that gender stereotyping insults could
constitute a viable sexual harassment claim
In the case, EEOC v. Boh Brothers
, an ironworker was harassed by his supervisor, who used
profane language and slurs.  The en banc
5th Circuit had to decide whether gender stereotyping evidence was
sufficient to support a same-sex harassment claim.  The majority noted that other circuits have
allowed the use of such evidence, and decided that the harasser’s subjective
perception of the worker’s conduct as reflecting feminine characteristics was
enough to consider the testimony as sexual stereotyping.  The ramifications of the litigation are
unclear, though more sex discrimination claims are assuredly on the way
.  The Court was concerned by the company’s
failure to appropriately investigate the supervisor’s behavior- perhaps a more
thorough investigation could have insulated it better from liability.  Overall though, as the dissent noted, the
case may open the door to sexual harassment claims that do not resemble those
traditionally contemplated by the courts and litigants.

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