N.Y.: Human Rights Commission Rejects Holding that Strep Throat Can’t Be Disability

By Rosemarie Lally Dec 16, 2014

Finding that genuine and material factual disputes exist concerning whether an employee with strep throat was disabled, the New York City Commission on Human Rights remanded the issue to the Office of Administrative Trials and Hearings for trial.

Keith Glaude, an employee of New York Downtown Hospital, claimed that his department director terminated his employment because of his temporary disability, a strep throat. Glaude filed a complaint with the Law Enforcement Bureau of the New York City Commission on Human Rights alleging violations of Title 8 of the Administrative Code of the City of New York. The bureau conducted an investigation and found probable cause to believe that the hospital had engaged in unlawful discrimination and referred the matter to the Office of Administrative Trials and Hearings for trial.

The parties then submitted a joint statement of undisputed facts to an administrative law judge (ALJ), in lieu of a trial. Undisputed facts upon which both parties agree are that Glaude was diagnosed by emergency room personnel as having strep throat, treated with penicillin, told that it was a contagious infection, and discharged on the same day with orders to return to work four days later. On the day he was treated, Glaude did not speak with his supervisor but provided copies of his treatment and discharge paperwork to another hospital employee, with instructions to give the papers to his supervisor the next day.

The ALJ found that a strep throat is not a disability within the meaning of the Human Rights Law, and issued a report and recommendation granting the employer’s motion for summary judgment. The ALJ said that the employer had provided a legitimate non-discriminatory reason for terminating Glaude and that the bureau failed to show that this reason was pretextual.

On appeal, the commission determined that genuine and material factual disputes existed and that the ALJ should not have granted the employer summary judgment.

First, although the hospital insisted that it hadn’t been told of Glaude’s disability, Glaude testified that the day before his termination his supervisor had called to ask about his medical condition. “This dispute alone renders summary judgment improper, requiring that the case be remanded for trial,” the commission said.

Further, although a court deciding a summary judgment motion should not assess witness credibility, the ALJ’s conclusion that the employer’s explanation was not pretextual rests on credibility assessments, the commission stated. Similarly, the ALJ found that Glaude’s employment was terminated for a non­discriminatory reason: poor attendance.

Title 8 of the code says “’disability’ means any physical, mental or psychological impairment, or a history or record of such impairment, … but the degree or frequency of impairment is not defined, and, as we have held before, the Code does not impose a minimum degree of severity below which its mandates do not apply,” the commission noted. “The Code simply does not require total, permanent or severe limitation of bodily systems in order to constitute a disability; nor does it require prolonged or extensive medical treatment, or that a person suffer progressively worsening symptoms.”

Because episodic and transitory illnesses are not excluded from the code's protections, the commission held that “the degree to which an illness affects a bodily system, or the duration of that illness, aresimply factors to be considered, on a case by case basis, when evaluating whether or not an individual is disabled and what, if any, accommodation is required; both factual questions.” In this case, the parties disputed whether Glaude’s infection was contagious and whether it caused him to have trouble speaking. Concluding that these were genuine and material factual disputes relevant to whether or not he was disabled, the commission rejected the ALJ’s conclusion that strep throat was not, as a matter of law, a disability under the code and remanded the case for trial.

Glaude v. New York Downtown Hospital, New York City Commission on Human Rights, Complaint #I0-l023539 (Sept. 14, 2014).

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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