New York’s First Department Appellate Division Highlights the Stringent Requirements for Reasonably Accommodating Individuals with Disabilities Under New York City Human Rights Law
On June 18, 2020, the First Department issued Hosking v. Memorial Sloan-Kettering Cancer Ctr., 2020 N.Y. Slip Op. 03484 (1st Dept. June 18, 2020), a decision analyzing the more stringent requirements under the New York City Human Rights Law (“NYCHRL”) for employers to reasonably accommodate individuals with disabilities, compared to the requirements under the New York State Human Rights Law (“NYSHRL”) and the Americans with Disabilities Act (“ADA”). In Hosking, the First Department determined that plaintiff’s disability discrimination claims under the NYSHRL and NYCHRL properly survived summary judgment as issues of fact were raised about whether the defendant sufficiently engaged in a cooperative dialogue to accommodate plaintiff’s disability prior to terminating her employment.
Hosking involved a plaintiff who worked as a concierge at Memorial Sloan-Kettering’s Cancer Center in Manhattan since 2002. The plaintiff’s job functions included answering the phone and greeting and directing patients. By 2012, plaintiff was diagnosed with multiple disabling conditions that, together, restricted her from pushing, pulling, or lifting on the job, or working outdoors. At the same time, the defendant changed its business model to a “pooled model” whereby five job functions were consolidated into one position. Because of her medical restrictions, plaintiff informed defendant that she would be unable to perform most of the tasks associated with the consolidated position, except for the concierge function that she was already doing. Plaintiff asked to work just as a concierge, but that request was denied and she was ultimately terminated.
The First Department explained that under both the NYSHRL and NYCHRL, employers must engage in a good faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested. The interactive process continues until – if possible – an accommodation reasonable to the employee and employer is reached. The First Department’s decision, however, highlighted the more exacting standard for the employer under the NYCHRL compared to the NYSHRL:
Unlike the State HRL where the employer must ‘engage in interactions with the employee revealing at least some deliberation upon the viability of’ an accommodation … , the City HRL clearly requires a more rigorous process … Indeed, to emphasize the seriousness by which employers must engage in the interactive process, the City Council amended the City HRL in 2018 … The Committee Report … states:
This bill would clarify the reasonable accommodation requirement by expressly requiring, as a part of the reasonable accommodation process, that covered entities engage in a cooperative dialog with individuals who they know or should know may require accommodation.
As we previously reported, under NYCHRL, an employer has an obligation to engage in a “cooperative dialogue” when an employee requests an accommodation or the employer is on notice that the employee may require an accommodation. A “cooperative dialogue” is a written or oral communication concerning the employee’s accommodation needs, potential accommodations that may address those needs (or alternatives), or any difficulties that the potential accommodations may pose for the employer.
Based on this more rigorous requirement, the First Department ruled in Hosking, that the employer could not prevail in its summary judgment motion to dismiss plaintiff’s disability claims because there were issues of fact as to whether the employer engaged in a good faith cooperative dialog to determine the viability of an appropriate accommodation. According to the Court, deposition testimony raised questions about the extent to which the employer actually considered accommodating the plaintiff. Ultimately, the Court found that the employer failed to demonstrate that it engaged in a fact specific, individualized, interactive, and cooperative process with the employee. Indeed, the Court noted that “the whole purpose of engaging in an interactive process is to see whether the position or schedule could be modified to accommodate plaintiff.” Depending on the circumstances, and so long as the accommodation does not cause an “undue hardship” on the employer, this requirement could obligate the employer to, among other things, restructure the employee’s position or modify the employee’s work schedule even if, as in Hosking, that employer had just changed its overall job responsibility model.
Te Hosking decision reminds employers, particularly those subject to the NYCHRL, that current and prospective employees with disabilities must each be considered and carefully assessed in a cooperative and interactive process to determine whether an employee’s disability can and must be accommodated. Employers with questions regarding accommodating employees with disabilities and engaging in the interactive process should consult with experienced employment counsel.
*Jamie Moelis is a law clerk in the New York office.