Biglaw, Disability Law, Dubious Defenses, Lawsuit of the Day

Are You Allowed to Have a Biglaw Job If You Need to Sleep All the Time?

By Elie Mystal

Sleeping Beauty: Not on the fast track to partnership.

I’m a big believer in forcing society to make reasonable accommodations for disabled people. It’s not too much to ask that disabled people be provided with handicapped accessible taxi cabs and buildings. And a special parking spot. Or whatever. If there’s a reasonable thing that society can do to make it a little bit easier to function with a disability, we should do it.
As long as we’re dealing with a real disability.
We used to live in a world where it was pretty easy to identify a disabled person. “Hello. Hello? Oh, you must be deaf.” “Hey, why are a you miserable cuss who keeps screaming ‘hoo ha’ at me? Oh, you must be blind.” “Why did you take out a hundred thousand dollar loan to go to a school that doesn’t help people get high-paying jobs? Oh, you must be retarded.” Man, those were the days.
Sadly, we now live in a world where it’s harder and harder to separate out the really disabled people from those who just can’t get their stuff together. To cope, I’ve developed my own little test: if I wouldn’t want the disability, it’s a real disability. If I’d gladly take the “disability” in exchange for a cash payout, it’s probably fake.
So let me ask you this: would you take a cash payout from your Biglaw firm if I afflict you with the dreaded “I’m really sleepy” disability? Yeah, this woman would too….

Last week, Bingham McCutchen got hit with an employment discrimination lawsuit filed by a former associate. Hartwell Harris claims that Bingham refused to accommodate her sleeping disorder. Harris says she has Delayed Sleep-Phase Syndrome. I don’t know about you, but I’m comfortable going with Wikipedia on this one:

Delayed sleep-phase syndrome (DSPS)… is a circadian rhythm sleep disorder, a chronic disorder of the timing of sleep, peak period of alertness, the core body temperature rhythm, hormonal and other daily rhythms, compared to the general population and relative to societal requirements. People with DSPS generally fall asleep some hours after midnight and have difficulty waking up in the morning.

She’s sleepy when she shouldn’t be because she can’t get to bed at night and has difficulty waking up in the morning. THAT’S NOT A DISABILITY!!!! That’s f***ing life. Have a goddamn drink before you go to bed. OR SEVEN. That’s how the rest of us do it. And really, if you don’t have trouble waking up in the morning, something is wrong with you. Seriously. I’ve never trusted these “morning person” a**holes who bound out of bed and bounce into work like they’re on the Today show.
Not for nothing, but not being able to sleep before midnight should actually help a person work a Biglaw job. Work all night, zombie through your morning, freshen up with some nose candy at lunch, kick ass for the rest of the day. Isn’t that how most people do it?
No, according to the lawsuit, Harris claims that her need to sleep during the day bothered her employers at Bingham McCutchen. What a shock! Biglaw partners are usually so accommodating when you tell them you can’t come to work because you need to get some sleep. From CNBC:

According to [Tamara S. Freeze, Harris's lawyer], in April 2010, after working at Bingham McCutchen for three years, Ms. Harris was afflicted by Delayed Sleep-Phase Syndrome (DSPS), a chronic circadian rhythm sleep disorder which disrupts the timing of sleep, peak periods of alertness, core body temperature, hormonal and other daily rhythms.
Until that point in time, she emphasized, Ms. Harris had consistently received promotions, pay raises and bonuses.
Bingham McCutchen initially granted Ms. Harris a short-term disability leave, then placed her on unpaid leave and ultimately terminated her employment February 24, 2011. The lawsuit states that the firm refused her doctor’s proposed accommodations, such as flexible start times or telecommuting, and did not offer any other options to accommodate her disability. Ms. Freeze commented: “It is egregious that Bingham McCutchen made no ‘good faith’ effort to propose and implement even minimal accommodations to her work schedule which would have allowed her to continue serving the firm and its clients.”

Good faith effort? Where can I sign up for the job where it doesn’t matter if you need to sleep during the day? I mean, I work on the internet! I’m working on the internet from home. I’m working on the internet from home, and I woke up late today, and I STILL HAD TO BE AWAKE DURING THE DAY. It’s not about good faith, it’s about how the world works given the diurnal rhythm of our freaking species.
For Bingham McCutchen’s part, they claim they were accommodating. Here’s the brief statement from the firm:

Bingham took Ms. Harris’ requests for accommodation seriously and accommodated them reasonably. It’s unfortunate that Ms. Harris selected this course, and we look forward to a favorable resolution of this matter.

That’s nicer than I would have been. My statement would have been something like: “The employee was too tired to come to work, so we fired her.”
Law Offices of Tamara S. Freeze Files Wrongful Termination Lawsuit against Bingham McCutchen for Associate Afflicted with Rare Sleep Disorder [CNBC]