NYC Sued for Inaccessible Sidewalks For Visually and Physically Disabled

Earlier this week Disability Rights Advocates filed a class action suit against New York City regarding the inaccessibility of NYC streets to the disabled:

"In a complaint received by the United States District Court for the Southern District of New York, the group, Disability Rights Advocates, said the class-action suit aimed to “end decades of civil rights violations” in what is ‘arguably, for non-disabled residents, the most pedestrian-friendly large city in the United States.’
Sidewalks and pedestrian routes, the group said, are often inaccessible for blind New Yorkers and people who use wheelchairs, walkers and other travel aids. Among the dangers, the group described curbs without ramps at pedestrian crossings, midblock barriers like raised concrete, and broken surfaces that can imperil wheelchair and cane users.
The focus of the suit is Lower Manhattan, below 14th Street, where problems are pronounced, according to the complaint.” (link)

The lawsuit, which alleges violation of both federal and city law, seeks to certify a class action of “all persons with mobility and/or vision disabilities who have been and are being denied the benefits and advantages of New York City's pedestrian rights-of-way in Lower Manhattan because of Defendants' continuing failure to design, construct, and maintain pedestrian rights-of-way that are accessible to persons with mobility and/or vision disabilities.”

 The complaint seeks only declaratory and injunctive relief – including that the City:

a. Ensure that pedestrian rights-of-way, when viewed in their entirety, are readily accessible and usable by persons with vision and mobility impairments.

b. Undertake prompt remedial measures to eliminate physical barriers to access to pedestrian rights-of-way to make such facilities accessible to Plaintiffs in accordance with federal accessibility standards.

 c. Maintain any existing accessible features of Defendants' pedestrian rights-of-way so that such features provide full usability for persons with vision and mobility impairments.

 d. Ensure that all future new construction and alterations to sidewalks and streets results in the provision of pedestrian rights-of-way that are fully compliant with federal accessibility standards;

 e. Prepare a complete Self-Evaluation and a complete and publicly available Transition Plan regarding the accessibility of existing pedestrian rights-of-way in compliance with Title II of the ADA and Section 504.

 Some interesting observations from the complaint:

a)  “more than 600,000 New Yorkers with mobility and vision disabilities continue to be excluded from the pedestrian culture that is so critical to community life in New York City because many of the City's sidewalks and pedestrian routes are too dangerous for use by persons with disabilities.”  (emphasis added).
b)    “A recent survey conducted by the Center for Independence of the Disabled ("CIDNY") of 1066 curbs in Lower Manhattan found that more than seventy-five percent of the corners surveyed had barriers presenting safety hazards to persons with mobility and vision impairments, including nearly a quarter of the curbs surveyed having no curb ramps whatsoever.” (emphasis added)

Lastly, the complaint notes that the suit was filed only after the De Blasio administration “refused to provide meaningful access to their sidewalks and pedestrian routes by making improvements to curb ramps and sidewalks over a reasonable period of time” or “participate in structured settlement negotiations to discuss these proposed improvements.”

It will be interesting to see how the professedly liberal De Blasio administration handles this litigation in the long term. 

Notably, shortly before De Blasio took office, and after several years of litigation, the Bloomberg administration finally settled a class action lawsuit concerning the accessibility of NYC taxicabs to the disabled.

The De Blasio administration obviously cannot waive a magic wand and fix every sidewalk curb in a day.  But why not enter into cooperative negotiations to formulate a reasonable plan to address this problem instead of wasting money, time, and resources defending a lawsuit - only to eventually settle anyways years later? Moreover, this suit concerns the disability rights statutes that advance the progressive platform and governance the administration has repeatedly stated it is focused on making a reality in NYC?

There are a lot of potential supporters, and ultimately votes, available from the visually or physically impaired NYC community that would also make these efforts politically worthwhile - that is if these voters can safely get to the voting booth on a NYC street.

 

EEOC Settles ADA Leave Suit for $1.35 Million With Princeton Healthcare

The EEOC has settled another ADA leave as a reasonable accommodation case.

Princeton HealthCare System, which operates the University Medical Center of Princeton at Plainsboro and several other medical facilities, will pay $1.35 million and will undertake significant remedial measures to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission, the agency announced today.
The EEOC’s suit alleged that the hospital’s fixed leave policy failed to consider leave as a reasonable accommodation, in violation of the Americans with Disabilities Act. According to the EEOC, Princeton HealthCare’s leave policy merely tracked the requirements of the federal Family Medical Leave Act and employee leaves were limited to a maximum of 12 weeks. The policy meant that employees who were not eligible for leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks.
The EEOC filed suit in U.S. District Court for the District of New Jersey after attempting to reach a pre-litigation settlement through its conciliation process.
Under the consent decree settling the suit, approved by U.S. Magistrate Judge Douglas E. Arpert, the hospital is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the Americans with Disabilities Act may take.
. . .
Princeton HealthCare also agreed that it will not subject employees to progressive discipline for ADA-related absences, and will provide training on the Americans with Disabilities Act to its workforce. (link)

Can My Employer Discriminate Against Me Based on My Looks?

The combination of federal, state, and city laws provide something close to comprehensive protection from employment discrimination, at least for New York City residents.  Read together, these statutes make it is illegal to discriminate based on a substantial list of protected classifications including, race, gender, age, nationality, disability status, sexual orientation, and religion to name just a few. 

But what about attractiveness? 

When you give it some thought, or at least look at the research, it quickly becomes apparent that a person’s attractiveness has a very significant impact on his or her life prospects:

"The bias in favor of physically attractive people is robust, with attractive people being perceived as more sociable, happier and more successful than unattractive people.  Attractiveness biases have been demonstrated in such different areas as teacher judgments of students, voter preferences for political candidates and jury judgments in simulated trials." (link)

The bias is so strong that one study found that even identical twins evaluate each other more negatively or positively based on small differences in their relative attractiveness: "[t]he more attractive twin assessed the other as less athletic, less emotionally stable, and less socially competent. The less attractive twins agreed, ranking their better-looking siblings ahead [of the other]." (link) 

Strikingly, these disparities appear to have very real economic effects: a study found a $230,000 lifetime earnings advantage for more attractive people compared to their less attractive peers. (link)  The one notable exception to a "beauty bias" is apparently limited to instances where women seek employment in traditionally masculine positions. (link)

But, generally, attractive individuals benefit from an attractiveness premium throughout their lives.  As a result, less attractive, but completely competent applicants and employees are not given the same opportunities, even despite equal or superior work.

That seems, at a basic level, highly unfair - but is it illegal?

Do employers and supervisors have free reign to promote, protect, and advance the employees they perceive to be more attractive, just because they perceive these employees to be more attractive?

The short answer is technically -  yes - there is no direct protection from "attractiveness discrimination" under federal, New York State, and/or New York City laws.

Nonetheless, there are still several ways that New York employees, perceived by employers and/or supervisors as "less attractive," may have a claim for employment discrimination, even under the existing legal framework.

These legal theories are not "attractiveness discrimination" cases per se, but involve instances where attractiveness "requirements" are applied unevenly, have disparate impacts on protected groups, or are used as proxies for race or ethnicity.

1. “Beauty” Used as a Proxy for Race or Ethnicity

Even while "attractiveness discrimination" is not directly prohibited, employers that exclude members of protected classes through the proxy of perceived "beauty" requirements/restrictions that are tied to racial characteristics, may be engaging in discrimination.  For example, excluding all Black or Asian applicants for a position based on a perceived lack of “beauty” -- through the illegitimate proxy of a Euro ethno-centric beauty paradigm. 

So, hiring only blonde applicants, or otherwise hiring only applicants with a racially specific "look," could result in a claim for race discrimination.  This was roughly the cause of action pursued against Abercrombie & Fitch for its previous practice of hiring only those with a "classic American look."  (link) (link)

On the other hand, if an employer hires only attractive employees, but does so while hiring both men and women, as well as applicants from varied racial backgrounds, this practice is less likely to support a claim of discrimination. 

2. Workplace Only Advances Attractive Women

Imposing an attractiveness requirement on women, but not men, with respect to hiring or advancement means the employer is treating men and women differently, which may be grounds for a sex discrimination claim.  This was the type of claim brought against airlines that imposed harsher weight requirements on female flight staff than comparable male flight staff.  (link) (link). 

3. Disparate Impact Discrimination

Another approach is a disparate impact discrimination claim.  Under a disparate impact theory of liability an employee can point to an otherwise neutral policy that they allege is the cause of a (potentially unintentional) disparate impact on a protected classification.  

For example, a female employee could point to the use of pictures in a job application and attempt to establish that this policy resulted in potentially subconscious attractiveness biases affecting which applicants are offered an interview, in a way that disparately impacted women but not men (i.e. excluding less attractive women but not less attractive men and thereby hiring a smaller percentage of female applicants).  If this policy can be isolated as the reason for a gender disparity in hiring that disadvantages women as a group, a female applicant may be able to make out an initial case of disparate impact discrimination.  The employer would then be forced to establish that the challenged policy was job-related and/or supported by business necessity. 

A Possible Solution: Pass a Law?

The state of Michigan and at least a few other localities have passed statutes forbidding discrimination based on weight, height, and/or appearance.  For example:

"The cities of Binghamton, San Francisco and Santa Cruz prohibit discrimination against weight and height as well.  Madison, Wisconsin and Urbana, Illinois have ordinances banning discrimination based on a person’s “physical appearance” and “personal appearance” respectively, while Washington D.C. prohibits all forms of personal appearance discrimination."  (link)

Although attractiveness and weight are obviously not the same thing - they are often perceived as highly correlated.  Perhaps weight discrimination would be a good starting place to start to tackle appearance discrimination.  Importantly,  obese women are often treated poorly compared to obese men:

"One recent study revealed that higher body mass is associated with reductions in women's hourly wages, family income, and probability of marriage, with obese women experiencing a 17.51 percent reduction in wages from their standard weight counterparts. In striking contrast, the only significant negative effect of obesity for men is that they are less likely to marry."  (link)

Bona Fide Occupational Qualifications

Employers can attempt to show that "attractiveness requirements" are bona fide occupational qualifications that are reasonably necessary to the normal operation of that particular business or enterprise. But that is usually hard to establish because courts apply the exception very narrowly and it also does not apply to race discrimination claims.

Obesity

It is worth noting that obesity, which is often seen as an unattractive trait (at least in American society), may, under certain circumstances, qualify as a disability under the ADA and additional state and local statutes.  When this standard is met it may provide anti-discrimination rights to an obese employee.

Conclusion

Why does this matter?  Is contemplating attractiveness discrimination statutes taking anti-discrimination protections a bit too far?

While it is may be a complicated issue I don’t think so.  I like Ruth Graham’s explanation:

Our preference for beautiful people makes us poor judges of qualities that have nothing to do with physical appearance—it means that when we select employees, teachers, protégés, borrowers, and even friends, we may not really be making the best choice.  It’s an embarrassing and stubborn truth—and the question is now whether, having established it, social researchers can find a way to help us level the playing field. (link)

Perhaps New York State or New York City should start with passing a weight discrimination statute to begin to address appearance discrimination.  Would it really hurt anybody to protect overweight individuals from employment discrimination?

Would the sky really fall if we took that step in New York?

I think it's likely to stay put.