Since mid-May, a number of bloggers (here, there, over there, and way yonder) have commented about a federal complaint filed by the Equal Employment Opportunity Commission (“EEOC”) on behalf of a person with dwarfism against Starbucks, Inc. According to the complaint, Elsa Sallard is a person with dwarfism who was training to become a barista at Starbucks. Ms. Sallard requested “a stool or small stepladder” in order to be able to perform her job as barista. Starbucks allegedly refused to provide the requested stool or stepladder and subsequently fired Ms. Sallard.

The EEOC and Ms. Sallard allege that Starbucks violated the Americans with Disabilities Act by not providing the stool or stepladder and demand injunctive relief, money damages, and punitive damages.

The EEOC issued a press release, stating that “Employers cannot blithely ignore a request for a reasonable accommodation by a qualified individual with a disability.”

Assume that the alleged facts occurred. The legal question remains: “Is dwarfism a disability?”

Under the Americans with Disabilities Act, a disability is a “physical or mental impairment that substantially limits a major life activity.” Here, the definition of disability has three parts: (1) physical or mental impairment, (2) substantially limits, (3) major life activity. The concepts “substantially limits” and “major life activity” were recently broadened in a recent amendment to the Americans with Disabilities Act, which took effect on January 1, 2009. The EEOC implemented revised regulations which took effect on May 24, 2011. A non-exhaustive list of “physical impairment,” “mental impairment,” and “major life activity” are provided in the EEOC regulations.

A “physical impairment” could include, but is not limited to: “Any physiological disorder or condition, cosmetic  disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,  reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”

A “major life activity” could include, but is not limited to: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

The concept “substantially limits” is broad and open to legal interpretation. The regulations provide that an impairment that “substantially” limits a “major life activity” may mean that the person’s disability “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

To address the question whether dwarfism is a “disability,” the court needs to know and understand each of the three parts of the definition of “disability” under the Americans with Disabilities Act (“ADA”), as amended. Then, the court is going to have to make a determination whether dwarfism meets the legal definition of “disability” under the ADA.

If this case is not settled, the court will likely review caselaw to see how other courts have addressed anachondroplasia dwarfism in the context of disability discrimination cases, including Dexler v. Tisch, Telesca v. Long Island Housing Partnership, and Roloff v. SAP America.

Assuming, for the sake of the argument, that the court rules that dwarfism is a disability as defined under the Americans with Disabilities Act, Starbucks’ argument that a stool or stepladder is dangerous and may impair productivity would not be far fetched: In a case that predates the Americans with Disabilities Act, a court accepted the employer’s argument that providing a stool or stepladder to a person with anachondroplasia dwarfism may pose safety risks and impair productivity.

Gary Arnold pointed out that Starbucks has had two years to settle this case prior to the filing of the complaint. My guess is that Starbucks feels very strongly that providing the stool or stepladder as an accommodation may pose safety risks not only to Ms. Sallard, but to the other baristas who will be working alongside with her.

I have been to Starbucks several times and have observed that the space where baristas work is often narrow and cramped. Starbucks might feel that it is necessary to invest a significant sum of money to expand the area where the baristas work to address any potential safety risks to Ms. Sallard and her co-workers. Construction to expand the space where the baristas work may require that Starbucks close the location for a period of time. Moreover, such construction may cause the size of the sitting area for customers to shrink, which could mean less profits for Starbucks.

An interesting case indeed!

(Note: My understanding is that “dwarves” prefer to be called “little people,” “LP,” or “person of short stature.” I mean no offense by using the word “dwarfism”–by using that term, I am referring to those who have anachondroplasia dwarfism, which affects 85% of those who are short in stature. The federal complaint that the EEOC filed repeatedly uses the word “dwarfism.”)

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Is Dwarfism a Disability? originally appeared on Matthew Stoloff's Blog on June 3, 2011.

Fellow blogger Ann Kiernan, an employment attorney in New Jersey, recently blogged that the Equal Employment Opportunity Commission has issued its final rule interpreting the employment provisions of the Genetic Information Non-Discrimination Act (GINA), a law that provides protection against genetic discrimination. The regulations will take effect on January 10, 2011.

GINA is an important federal law that took more than 12 years to come to fruition. Signed into law by former President George W. Bush in May 2008, Senator Ted Kennedy described GINA the “first major new civil rights bill of the new century.” One purpose of GINA is to prohibit employers from making employment decisions on the basis of the adverse genetic information. Thus, under GINA, an employer cannot make hiring, firing, job placement, or promotion decisions on the basis of an employee or potential employee’s genetic information. Moreover, under GINA, employers are prohibited from retaliating against employees who allege genetic discrimination. (Note: the term ‘employees’ include ‘applicants’ and ‘former employees.’)

According to the GINA statute, “genetic information” includes:

• Genetic tests of an individual and their family (including fetuses);
• Individual or family medical history; and
• Requests for, or receipt of, genetic tests or genetic services.

Genetic tests include tests “for a genetic variant for Huntington’s Disease and carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring.”

Thus, an employer who requests or requires certain genetic information as a condition of employment has violated the GINA law. Likewise, an employer requiring that an employee undergo genetic testing in order to be eligible for health insurance benefits has likely violated the GINA law.

An individual who believes that her rights has been violated under the GINA law may file a claim against the employer. At this time, the procedural rules under GINA appears similar, if not identical, to the procedural rules under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, color, religion, and national origin. Interestingly enough, the EEOC points out that the remedies under GINA is identical to the remedies under Title VII, which includes: reinstatement, back pay, injunctive relief, as well as compensatory and punitive damages.

Over the past few months, employment attorneys, including Adria B. Martinelli, have written some interesting articles about GINA, including “Do Bald Employees Finally Have a Cause of Action Under GINA?” and “Does GINA Provide a Cause of Action for Overweight (or Overly Attractive) Employees?” In the coming months and years there will be no doubt very interesting cases that will test the scope of the GINA statute. In the meanwhile, employees and employers alike are encouraged to familiarize themselves with the GINA law. A good starting point is the GINA Q&A.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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EEOC Issues GINA Regulations originally appeared on Matthew Stoloff's Blog on November 22, 2010.

The bill, known as the New Jersey Compassionate Use Medical Marijuana Act, will take effect in July 2010. New Jersey will become the 14th state to legalize marijuana. This bill is a victory for many interest groups in New Jersey: those who believe that the criminal justice system needs to be reformed; those who believe that marijuana should be decriminalized; and those who believe that marijuana has beneficial health effects for patients with terminal illnesses. For more information about the benefits of marijuana and why marijuana should be legalized, the Marijuana Policy Project and Americans for Safe Access websites contain a wealth of information.

It is apparently well documented that the medical use of marijuana has beneficial health effects for those who suffer from serious and terminal illnesses. To that end, the stated purpose of New Jersey’s Medical Marijuana Act is to

protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.

Since former Governor Jon Corzine signed the bill, a number of New Jersey employer-side attorneys, including Ann Kiernan, have blogged about how employers can legally respond when they learn that an employee or potential employee has been prescribed marijuana. This is a very complex issue because there are federal and state laws against discrimination on the basis of disability. These laws include the Americans with Disabilities Act and the New Jersey Law Against Discrimination. On the other hand, employers have the right to maintain a safe environment for everyone in the workplace.

Various courts in California, Washington, Oregon, and Utah have held that employees who consume marijuana to treat their illnesses cannot sue their employer for disability discrimination. Now, every one of these cases are fact specific and state specific. For example, in California, an employee who was prescribed marijuana for medical purposes failed a pre-employment drug test could not sue for disability discrimination (Ross v. RagingWire Telecommunications). Similar facts arose in Washington state, and in that case, the court held that the employee had no right to sue her employer (Roe v. Teletech Customer Care Management).

Although out-of-state cases are not binding on the New Jersey courts, they are nonetheless persuasive. Still, it remains to be seen how the New Jersey courts will decide when presented similar facts. We simply will not know until, perhaps, the end of this year. (I have no doubt that there will be a medical marijuana case in an employment setting sometime this year.)

In any event, there are other facts involving medical marijuana in employment settings that have yet to be litigated. For example, it remains to be seen whether a New Jersey employee who has worked for a company for ten years without incident suddenly acquires a terminal illness, is prescribed marijuana, and is subsequently discharged as a result. Will the New Jersey courts favor the employee who was discharged for disability discrimination, or will the courts rule in favor of the employer?

We don’t know the answers to any of these questions until this is litigated.

In the meanwhile, employers and employees alike should familiarize themselves with New Jersey Compassionate Use Medical Marijuana Act. Employers and employees may find this interview helpful as well as these two articles: “The unintended impact of New Jersey’s new medical marijuana law on the workplace” and “When Medical Marijuana Laws Conflict with Company Policies.”

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Medical Marijuana and Disability Discrimination in the Workplace originally appeared on Matthew Stoloff's Blog on February 22, 2010.