October 24, 2012 8:00am PT by Eriq Gardner
Does Sidelined 'Blue Bloods' Star Jennifer Esposito Have a Case Against CBS? (Analysis)
This story first appeared in the Nov. 2 issue of The Hollywood Reporter magazine.
Does Jennifer Esposito have a legal claim against CBS for sidelining her because of complications from celiac disease?
The Blue Bloods actress, 39, took to Twitter on Oct. 20 to blast the network’s “absolutely shameful behavior” in putting her on an unpaid leave of absence from her role as Detective Jackie Curatola on the second-year cop drama. The autoimmune disorder causes fatigue and, according to Esposito, CBS refused to accommodate her needs during production, then kept her from working on the show or elsewhere.
“CBS didn’t listen to my doc and I collapsed on set,” she tweeted.
THR surveyed six employment attorneys, and all agreed that Esposito’s allegations — if true — would be covered by the Americans With Disabilities Act.
In the past four years, since Congress broadened the scope of the ADA, lawsuits have proliferated, notes Fox Rothschild lawyer Richard Cohen. If Esposito asserts an ADA claim, he says she’ll need to show that CBS failed to engage in an “interactive process” to determine a “reasonable” accommodation for her disability.
But CBS could attempt to demonstrate that it was willing to provide her with a special trailer room, take care of her dietary needs and, within reason, reduce her time on set.
Esposito likely would counter that she wasn’t given enough of a reduced workload, but “that may not be possible in the context of a television show on an expensive shooting schedule that requires an important character to be all in,” notes attorney Christopher Lilly at TroyGould.
For its part, a CBS rep says Esposito is “unable to perform the demands of her role, and we regretfully had to put her character on a leave of absence.” Her last appearance comes in the Nov. 2 episode, and she will be replaced by guest actors, though the CBS rep says the network hopes she will return.
Below is some legal analysis from employment attorneys who have looked at Esposito's tweets and CBS' public comments. If a claim is filed at the Equal Employment Opportunity Commission, more facts could emerge that might shape whether Esposito would prevail or not:
David deRubertis, The deRubertis Law Firm:
"If the reduced work schedule could have been granted without imposing an undue hardship on the employer and without transforming the job into something it wasn’t meant to be, then forcing the employee on a leave of absence may be a failure to accommodate the employee’s disability. Here, Ms. Esposito states that 'CBS didn’t listen to my doc and I collapsed on set.' If those facts are proven to be accurate, they may make it more difficult for CBS to prevail. From this evidence, Ms. Esposito could make the compelling argument that considering the fact that CBS’s initial failure to accommodate her caused her condition to get worse, the company certainly should have made extra efforts to allow her to return back to work..."
Travis Gemoets, Jeffer Mangels Butler & Mitchell
"This type of employer reaction in response to a request for a 'reduced schedule,' without the employer making an effort to ascertain, with the help of the employee and the employee's medical professional, what exactly is meant or required by a 'reduced schedule,' is the mistake many employers make before they know all the facts, and this mistake violates both federal law, the Americans With Disabilities Act, and California state law, the Fair Employment and Housing Act. The laws in this area no different for the film and television industry."
Jonathan Steinsapir, Kinsella Weitzman Iser Kump and Aldisert
"This is not the normal employer/employee scenario. There are very serious First Amendment issues as to whether this process should be followed when it would impinge on artistic freedom. Here, CBS can claim that they should not be forced to write their acting roles and TV episodes to conform to the particular disabilities of one actor. If pressed, I think a California court would likely side with CBS, perhaps begrudgingly."
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