In Glaser v. Gap Inc., the Southern District of New York denied defendant’s motion for summary judgment on plaintiff’s disability discrimination and failure to accommodate claims under the Americans with Disabilities Act (ADA) and the broader New York State Human Rights Law (NYSHRL).
Plaintiff is a 37 year-old man who suffers from autism and who worked for Gap as a merchandise handler. Defendant fired him the day after an alleged confrontation between plaintiff and his supervisor involving a “fish knife”.
The court outlined the relative protections offered by the ADA and NYSHRL. “With regard to the elements of a prima facie case, the ADA and the NYSHRL have been interpreted differently.”
Under the ADA,
a prima facie case requires a showing that (i) the defendant employer is subject to the ADA, which is undisputed here; (ii) the plaintiff is disabled within the meaning of the ADA or was perceived to be so by the defendant employer; (iii) the plaintiff was otherwise qualified to perform the essential functions of the job either with or without reasonable accommodation, which is also undisputed in this case; and (iv) the plaintiff suffered an adverse employment action because of his or her disability.
Under the NYSHRL,
the plaintiff must show only that (i) he or she suffers from a disability; and (ii) the disability caused the behavior for which he or she was terminated.
The court concluded that plaintiff raised a genuine issue of material fact as to whether he is “disabled” for purposes of his wrongful discharge claim under the ADA:
While employed by Gap, Glaser received negative feedback on more than one occasion about his interaction with a coworker. According to Gap, in April 2005, a coworker complained that Glaser made her feel uncomfortable by getting upset if she was too busy to speak with him when he stopped by to see her and by talking about her to other people in too familiar a manner. Gap’s records indicate that Glaser was coached or counseled about this behavior. In November 2008, in response to a complaint by a member of the loss prevention staff, Glaser was told that, if he arrived before his shift (Glaser was routinely at the worksite about two hours early), he should not speak with coworkers who are on duty because doing so is distracting to them, and he should instead go to the cafeteria and read a newspaper.
In August 2009, Glaser was advised that he needed to refrain from putting his arm around his supervisor, Mejorado, or placing his hands on her when speaking with her, and that he needed to stand further apart from others when he talked to them. In response to this feedback from Joelle Virgilio and other human resources (“HR”) personnel, Glaser indicated that he would not have contact with Mejorado unless required for work-related issues. In a written summary prepared by Virgilio, she noted her concern that Glaser, in attempting to comply with the “counseling” he had received, might completely avoid communication with his supervisors, and Virgilio indicated that she would monitor the situation.
Given the frequent “coaching” on the subject, defendants cannot seriously argue that Glaser’s ability to “interact with others” was not impaired. Instead, defendants contend that Glaser’s impairment does not rise to the level of a “substantial” limitation. Defendants’ arguments, however, merely raise genuine issues of material fact.
The court next held that, under the NYSHRL, there was an issue of fact as to whether his “disability caused the behavior for which he was fired.” Specifically:
To the extent that, as asserted by Gap, the basis for Glaser’s discharge was his interaction with Mejorado on November 5, 2009, Glaser is entitled, as the non-moving party, to the reasonable inference that his described behavior, namely clenching his fists and impeding Mejorado’s egress from another individual’s cubicle was a product of his disability.Gap trainer Richard Buckner testified that, when Glaser would get upset, he would turn red, tense up, clenching his fists against his chest, and tremble. Buckner never interpreted this behavior as violent or threatening in any way. Buckner viewed Glaser as an “autistic-type person.” Buckner called Glaser “Rainman,” referencing the title of a movie and the nickname of an autistic character portrayed by Dustin Hoffman, because Glaser exhibited similar traits. Virgilio made similar observations[, namely, that] Glaser “was very upset whenever he received any type of counseling or correction action.” He would “always turn red. He always clenched his fists.” Given the evidence linking Glaser’s disability to the conduct on which Gap allegedly relied in firing him … defendants’ assertion that Glaser has not made out a prima facie case under the NYSHRL lacks merit.
As for plaintiff’s ADA claim, the court rejected defendants’ argument that “they had no notice of Glaser’s autism and therefore could not have discharged him ‘because of’ his disability.”
Notably, “[u]nder the ADA, an employer need not know the exact diagnosis to be liable for discrimination on the basis of a disability; liability may be premised on the employer’s perception, regardless of whether it is accurate, if the employer relies on such perception to engage in a prohibited act.” Plaintiff “raised triable issues concerning whether defendants regarded him as disabled even though they were not formally advised of his autism.”
As to plaintiff’s “failure to accommodate” claim under the ADA, the court rejected defendants’ contention that plaintiff’s “disability was not obvious and that they therefore had no duty to accommodate him.” Whether Gap knew or should have known that plaintiff was disabled presented another fact issue precluding summary judgment. In addition, defendants failed to identify an “undue hardship” that would render the requested accommodation unreasonable as a matter of law.