The fictional law firm of Hogarth, Chao & Benowitz LLP required their attorneys to sign a “medical disclosure” clause to inform the firm of medical conditions that had the potential to affect job performance. Once Jeri Hogarth’s partners learned she had ALS, they tried to force her out of the law firm with a severance under the pretense it was their fiduciary duty to protect the law firm. See, Jessica Jones, season two, episode, AKA Sole Survivor.

There is a problem with this “medical disclosure” clause designed to terminate lawyers: it is illegal as hell.

New York law states that it is an unlawful discriminatory practice for any employer to discharge anyone from their employment because of disability or predisposing genetic characteristics. N.Y. Exec. Law § 296. Forcing employees as a condition of employment to disclose health information that can then be a pretext to fire anyone goes to the heart of protecting anyone with a “disability” from being discriminated against. There was no effort to make any reasonable accommodations for Hogarth, just remove her from the firm.

Case law has held that an employer’s failure to make reasonable accommodations for an employee is “the very societal ill which the relevant anti-discrimination statutes were designed to combat.” Jacobsen v. N.Y.C. Health & Hosps. Corp., 988 N.Y.S.2d 86, 100 (2014). In a case where a police officer with Crohn’s disease that was in remission was dismissed from work, the Court found that the discrimination violated New York’s Human Rights Law. There was no evidence that the police officer could not perform his job, even if treatable symptoms occurred. Antonsen v. Ward, 569 N.Y.S.2d 328, 328, (1991).

There was no evidence that Jeri Hogarth was no longer competent to practice law. She did not have any symptoms at the time her partners confronted her. Their plan was to dismiss her from the firm, which is discriminatory conduct based on someone’s disability. As such, the contractual requirement to disclose medical conditions required the disclosure of health information that would otherwise be protected, and used as a license to discriminate against those with medical conditions.

The irony is there were valid reasons to terminate Jeri Hogarth. She had committed jury tampering, which is grounds for disbarment; asking Jessica Jones to rough up Wendy as inducement to sign a divorce agreement was a crime; having an affair with her secretary Pam was an HR nightmare waiting to happen; attempting to use Killgrave to secure Wendy’s signature on divorce papers resulted in Wendy’s death; the illegal purchase of a hand gun later used in a homicide; and the use of cocaine and three hookers are all multiple crimes. Throw in Jeri’s practice included criminal defense, patent litigation, and estates, which are all highly specialized practice areas. It would be like a doctor who is an orthodontist, vascular surgeon, and pediatrist. Sure, it is possible, just highly unlikely. Moreover, Jeri’s malpractice insurance had to be expensive.

Instead of going after Jeri for any of her serious ethical breaches as grounds for termination, Chao and Benowitz picked discrimination against someone with a disability as their beach to die on. Not the best legal strategy.

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