���Know Your �Rights: Publishing Workers and Disability

with Meredith Mooring, author and employment lawyer

About Us

Disability in Publishing

• Non-profit created by individuals who work in traditional publishing.
• Seeks to build community, provide resources, and increase accessibility across the industry.

Author Meredith Mooring

• Employment and disability attorney.
• Author of sci-fi debut REDSIGHT (2024) with Solaris Books.
• Blind for my entire life. Guide dog user.

What’s covered by presentation

• Employee vs. independent contractor
• History of disability and civil rights
• What is a disability and what are accommodations
• Discrimination, harassment, and retaliation
• How to protect yourself in the workplace

What’s not covered by this presentation

• Laws outside the U.S.
• Unions
• Fair Labor Standards Act
• Overtime
• Minimum wage
• OSHA
• Other forms of discrimination

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Employee vs. Independent Contractor

• Employee
• Receives a W2 tax form.
• Employer has more control over how employee does their work and the tools they use.
• Examples: If you work for a publisher, some agents.

• Independent Contractor
• Receives a 1099 tax form.
• Person they contract with does not have authority over how the work is performed unless that’s a term of the contract.
• Examples: most agents, authors, copy editors.

At-Will Employment: if you’re hired for an indefinite term, you can be let go for any non-illegal reason without notice.

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Applicable Laws

• Americans with Disabilities Act
• Title I: Employment
• Title II: Public Entities
• Title III: Public Accommodations
• Title IV: Telecommunications
• Title V: Miscellaneous (retaliation is here)
• Rehabilitation Act: this applies if you work at some university presses. If the university accepts federal funding, they have to follow the Rehab Act.
• State version of ADA: many states have codified the federal rules into state law as well.
• State wrongful discharge

History of Disability Laws

Photo of protestors demanding curb cuts and better access to public transit. Taken in 1972, almost twenty years before the passage of the ADA.

Disability Protections Came Much Later Than Other Civil Rights

• POST CIVIL WAR
• 13th Amendment: abolished slavery
• 14th Amendment: equal protection under the laws
• Section 1981 of the Civil Rights Act of 1866: eliminates racial discrimination in the right to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property.

Civil Rights Movement

• Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on race, color, sex, religion, or national origin.
• Age Discrimination in Employment Act (ADEA) of 1967: protects workers aged 40 and older.
• Rehabilitation Act of 1973: prohibits disability discrimination within the federal government or federal contractors
• Developmentally Disabled Assistance and Bill of Rights Act (DD Act) of 1975: focused on getting people with disabilities out of institutions. Created protection and advocacy organizations that we have now. Act was passed in response to an exposé about the Willowbrook School in NY.
• Individuals with Disabilities Education Act (IDEA) 1975: prohibits disability discrimination in public schools

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Civil Rights 2.0: Disability

• Original ADA 1990: very limited protections. Even people with cancer were found to not be disabled.
• Family and Medical Leave Act of 1993 (FMLA): requires covered employers to provide employees with 12 weeks of job-protected, unpaid leave for qualified medical and family reasons.
• 2008 Amendment to the ADA: broad protections. Much easier to qualify as disabled now.

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Civil Rights 3.0: LGBT

• United States v. Windsor 2013
• Overturned the Defense of Marriage Act which defined marriage as between only one man and one woman.
• Obergefell v. Hodges 2015
• Fundamental right to marry is guaranteed in the Due Process Clause, including same sex marriage
• Substantive Due Process Clause
• Dobbs v. Jackson Woman’s Health Organization 2022
• Bostick v. Clayton County 2020
• Interprets “sex” under Title VII to include LGBT discrimination as a form of sex discrimination

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Disability Protections on the Agent Side

• 1099 contractor: not bound by ADA, Rehab Act, State ADA, etc.
• Contract between agent and agency
• Requires ethical behavior by the agent
• Sometimes there’s a commitment in writing that the agency will use ethical practices as well. You could argue that discriminating against an agent’s disability is unethical.
• Most agency agreements allow the agent or the agency to part ways with each other at any time. That may be your only protection in some cases.

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Applicability of the ADA to your workplace

• Must have 15 or more employees for each working day for 20 weeks in the current or preceding year.
• Usually prove this with payroll records.

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To be covered under the ADA

• Disability: a person who has a physical or mental impairment that substantially limits one or more major life activities. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability.

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• Qualified: can you perform the essential functions of your job with or without accommodation

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Interviewing

• Employers can ask if you need an accommodation to perform the interview. If you do not need an accommodation, you do not have to disclose your disability during the interview.

Interview questions

• Employers cannot make a pre-employment inquiry on whether an applicant is disabled, or to what extent.
• Example: a form that asks applicants to disclose their disability up front.
• Employers can ask if you can perform particular job functions.
• Example: can you use a computer with or without accommodation.
• If the employer knows you have a disability, they may ask how you can perform job functions the employer considers difficult or impossible to perform because of the disability, and whether an accommodation would be needed.

Requesting an Accommodation

• Doesn’t have to be in writing
• Don’t have to use magic words
• However, it’s easier to prove that you asked for specific things on a specific date if you put your request in email and use unambiguous language. For example: “I am requesting an accommodation for my disability under the ADA.”

Examples of Accommodations

• Job restructuring of nonessential job functions.
• Reassignment to vacant position. I do not mean open applications for a different job, I mean REASSIGNMENT.
• Intermittent or reduced work schedules.
• Light-duty work: more applicable in physically demanding jobs. They do not have to create light duty work if none exists, but if there is some, you can have your job duties changed.
• Providing a stool or rest breaks.
• Unpaid leave beyond the 12 weeks of FMLA leave.

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Accommodative Process

• Request an accommodation: burden is on the employer to evaluate it and decide if the request is reasonable.
• If the employer never responds to your request: failure to accommodate. Legal claim on its own.
• May ask you to disclose your disability or have a doctor fill out a recommendation letter. This is legal. They need a degree of information to determine if your request is reasonable.

Disclosing Disability

• If you refuse to provide a letter from your physician, you are “refusing to participate in the accommodative process.”

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• Misconception: “I don’t have to disclose my disability.” This is only true under Title III of the ADA, not Title I or II.

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• Title III covers areas of public accommodation. If you go to a store with a walker or a cane, you do not have to explain why you have a walker. You should be allowed to access areas of public accommodation without further questions. This is NOT THE CASE in employment.

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Reasonable Accommodation

• They don’t have to give you the exact accommodation you ask for. If they give you something similar, it’s difficult to claim they’re failing to accommodate you.
• Example: you request a $1,000 software program to make your work computer accessible. They say that is an undue burden and purchase a $800 program instead. They have still accommodated you, even if you didn’t get the exact thing you asked for.
• “Reasonable” is an ever-shifting standard, but certain conditions and accommodations are well-established in case law.
• Examples: elevator access for employees that use wheelchairs, screen reader software for blind employees, rest breaks so diabetic employees can periodically check their blood sugar, etc.

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When an Employer Can Refuse an Accommodation

• Undue Burden: they can refuse to provide a specific accommodation if it’s too expensive, too difficult to do. Hard to prove this.
• If you extend an option to non-disabled employees, you cannot later argue that option is unduly burdensome for disabled employees in the same job category.
• There are ways to get expensive assistive technology paid for through state Vocational Rehabilitation.

Disability Harassment

Two Forms. Must relate to protected characteristic.

1. Tangible Employment Action: where the employee ultimately suffers an adverse employment action.

• Adverse employment action: reducing hours, reducing pay, changing job title or job duties, demotion, termination.
• Much more common in sexual harassment cases.

2. Hostile Environment harassment: where the employee suffers severe and/or pervasive harassment that does not culminate in a tangible employment action.

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Hostile Work Environment

1. Must be severe and pervasive

2. Must relate to disability

3. Conduct must be personally unwelcome

4. An objective person must think the conduct is hostile/abusive

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Did you complain about the harassment?

• If you’re harassed, did the employer know or should they have known?
• If you tell them and they take no corrective action, that makes them liable.
• If you did not complain and the harasser is a co-worker, the employer can’t be held responsible because they didn’t know.

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Is the harasser a manager/supervisor?

• Strict liability for employer

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Disparate Treatment vs. Disparate Impact

• Disparate treatment: intentional, interpersonal. Much more common.
• Example: disabled candidate has more qualifications than able-bodied candidate. Able-bodied candidate gets the job despite not having required skills in job posting.
• Disparate Impact: facially neutral policy that impacts a protected group more than others. Statistics are usually involved.
• Example: requiring a driver’s license for a fully remote job with no travel necessary.

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Retaliation

Three Elements

• 1. Employee engaged in a protected activity
• 2. Employer took adverse employment action against the employee
• 3. Causal connection between protected activity and adverse employment action.

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Protected Activity

• Participation: making a charge of discrimination to the EEOC; testifying, assisting, or participating in an investigation.
• Opposition: opposing a discriminatory employment practice.

Burden of Proof for Retaliation

• “But for” Standard: retaliation would not have occurred in the absence of the alleged wrongful action of the employer.
• Problem Employee: employers drag out performance reviews, complaints, and performance improvement plans (PIPs) to disprove retaliation.

Ways to Protect Yourself

• Save all documents
• Get everything in email with time/date stamp
• Save all performance reviews to personal records
• If you’re given a performance review you disagree with:
• Refuse to sign the review you don’t agree with. Write a rebuttal and sign your own review.
• If you sign the review containing false information, they will use your signature as an admission.
• Does your workplace have employee policies/handbooks? Check now and save a copy for your records.
• If you’ve never been given a copy of a handbook: they can’t expect you to follow rules you’re unaware of.

Recorded conversations

• Laws vary by state.
• In some states you can record conversations with one person’s permission, and you don’t have to inform the other parties to the conversation.
• DO NOT try this before checking the rules in your jurisdiction.

Written Log

• If you’re being harassed, write down what happened within moments
• Time/date stamp
• Detailed notes while you remember.
• Keep this log separately from your work device or work email address.

When to contact HR

• If you need a reasonable accommodation, you have to tell them.
• If you are being harassed by a co-worker, you can’t hold the business responsible for harassment they are unaware of.
• In general, be cautious about interacting with HR. They are there to protect the business from liability. They are not there to protect you.

Severance agreements

• DO NOT sign this before talking with an attorney.
• If you are over age 40, you generally have 21 days to review the agreement and have the offer remain open. After signing, you should have 7 days to revoke your agreement.
• If you are under 40, you don’t necessarily get that amount of time.
• Usually include a general waiver of all claims, confidentiality, non-disparagement, no re-hire, may also include non-solicitation.
• You can negotiate the amount of compensation.

When to Get Legal Help

• Tangible Employment Action: reduction in hours, reduction in pay, demotion, substantially changed job duties, termination.
• EEOC: do not pursue this without legal advice. The EEOC investigator is NOT your lawyer
• Disability Rights New York: they can give you free advice and guidance even if they can’t take every case.
• National Disability Rights Network: if you’re unsure if your state has a Disability Rights office, you can look it up there.

Equal Employment Opportunity Commission (EEOC)

• They cover discrimination in: race, religion, sex, color, national origin, age, pregnancy, and disability.
• The EEOC does not: address wage and hour problems or unpaid overtime, FMLA, general workplace safety, or wrongful termination for some reason unrelated to a protected characteristic.
• Statute of limitations for employment discrimination cases: 180 days to file a charge with the EEOC.

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Filing a Charge at the EEOC

1. Filing a Charge: when you file a complaint of discrimination. Usually done over the phone. Brief, 1 page complaint.
2. Investigation or Mediation
• If the employer wants to mediate, may go straight there. EEOC has full-time mediators at no cost. Very good at what they do.
• Investigation can take over a year. Most of the work takes place on the employer’s side.
3. Conciliation: if the investigator finds that discrimination occurred, they try to arrange a conciliation. Very similar to mediation, but participation is voluntary.
4. Right to Sue Letter: if conciliation fails, or if the EEOC cannot determine if discrimination occurred, they give you a Right to Sue Letter. You have 90 days from receipt of this letter to file in federal court.

90 DAY DEADLINE IS SERIOUS. 90 DAYS TO FILE YOUR CASE, NOT 90 DAYS TO PUT IN THE MAIL.

Filing a Case in Federal Court

• Complaint: must contain specific information.
• Civil Cover Sheet
• Filing Fee: $402.00 as of Oct 2022
• Summons addressed to registered agent
• Look up registered agent on your state’s Secretary of State business registration search. Do not guess the mailing address.
• Some federal districts (like my own) have additional requirements

Standards of Proof

• Civil cases
• Preponderance of the evidence: 51%
• Clear and convincing evidence: 75%
• Criminal cases
• Beyond a reasonable doubt: 99%
• Employment discrimination: preponderance of the evidence standard.

Questions