Another broad ruling from the First Department on the New York City Human Rights Law

Here is another example of how the New York City Human Rights Law is far more expansive than federal and state disability laws. The First Department says that Sloan Kettering Hospital may have violated the city law in not taking seriously the plaintiff's request for her disability accommodation.

The case is Hosking v. Memorial Sloan Kettering, issued by the First Department on June 18. The general outline guiding reasonable accommodation law under federal, state and city law is similar: if you have a disability and cannot perform certain job functions, the employer has to accommodate you if the accommodation does not create an undue burden on management and the accommodation does not eliminate an essential job function. But we have significant differences in these laws. 

Under the Americans with Disabilities Act, as well as state and city law, the employer must engage the employee in the "interactive process," which means the parties have to try in good faith to find a reasonable accommodation. If the employer does not take that obligation seriously, but there is no reasonable accommodation available to the employee in any event, there is no separate lawsuit against the employer under federal and state law. In 2009, the First Department held in Phillips v. City of New York, 66 A.D.3d 70, that the employer's failure to engage the employee in a good-faith interactive process violates the New York City Human Rights Law, which expressly mandates more expansive civil rights protections than federal and state law. But the New York Court of Appeals rejected that interpretation in Jacobson v. New York City Health & Hosp. Corp., 22 N,Y.3d 837 (2014). This led the City Council in 2018 to amend the City law to codify the holding in Phillips and reject the contrary holding in Jacobson.

Under the 2018 law, the City law characterizes the "interactive process" as "cooperative dialogue." It means the employer must "engage in good faith in a written or oral dialogue concerning the person's accommodation needs," including any alternatives to the requested accommodation. These differences between federal, state and city law may make life confusing for HR departments, but the city has the right to create greater protections for plaintiffs in the civil rights context. This means additional training for managers and supervisors to ensure that employees are not suffering employment discrimination, and it means that briefs and legal memos are longer because they contain separate sections dealing with the different laws that may govern the employment relationship.

The record here permits the finding that the employer did not engage in a good faith cooperative dialogue in responding to plaintiff's request for a reasonable accommodation. The employer simply told plaintiff (whose disability prevented her from performing certain doorman functions at the hospital) that she did not fit within "the new model" at the facility and she should apply for another position within the hospital. The First Department concludes with this statement:

There is no rule that an employer has to engage in the process for a certain number of days or that it ultimately has to give the employee what the employee is demanding. However, the process has to be held in good faith and the essential functions of the position need to be part of the interactive process the law requires, not a unilateral employer decision cloaked by business judgement. Indeed, what happened here "is a long way from the framework of cooperative problem solving based on open and individualized exchange in the workplace that the [Americans with Disabilities Act [ADA] intended."