April 9, 2014


In a recent decision penned by Judge Sheila Abdus-Salaam, Jacobsen v. New York City Health and Hospitals Corporation,1 the Court of Appeals addressed the obligations of an employer when an employee puts it on notice that he has a disability.

The court ruled that an employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good-faith interactive process precludes the employer from obtaining summary judgment because it is a violation of the state Human Rights Law (state HRL)2 and the city Human Rights Law (city HRL).3

Under state and city law, it is an unlawful discriminatory practice for an employer, because of an individual's disability, to refuse to hire or to discharge such individual, or otherwise to discriminate against such individual in the terms, conditions and privileges of employment.4 And an employer's refusal to reasonably accommodate an employee's known disability also constitutes discrimination under state and city law.5

Last year, in Romanello v. Intesa Sanpaolo S.p.A,6 the Court of Appeals ruled, on a motion to dismiss, that an employer make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job provided that the disability is known or should have been known by the employer, but contrary to the state HRL, the city HRL places the burden on employers to prove undue hardship.

Significantly, the Romanello court noted that the city HRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, satisfy the essential requisites of the job so that the employer, not the employee, has the pleading obligation to prove that the employee could not, with reasonable accommodation, satisfy the essential requisites of the job. Judge Abdus-Salaam wrote a dissent in that decision (in which Chief Judge Jonathan Lippman and Judge Jenny Rivera concurred), agreeing with the majority in upholding plaintiff's claim under the city HRL, but disagreeing with their dismissal of the plaintiff's state HRL claim.

Facts of 'Jacobsen'

In September 2005, William Jacobsen, an assistant health facilities planner employed by the New York City Health and Hospitals Corporation, was diagnosed with an occupational lung disease. On Jan. 3, 2006, when he returned to work, he was told there were "problems" and that he should go home until called. On March 27, 2006, he again returned to work, but complained about the dust to his supervisor at his job site on several occasions from March to May 2006, and requested a respirator as a reasonable accommodation. He was capable of performing his job out of the central office and, when required to visit construction sites, he could do so with proper respiratory protection.

On May 10, 2006, Jacobsen requested immediate reassignment to the central office as a reasonable accommodation. He was able to perform any and all functions that had been assigned to him prior to his relocation. In support of his request, he submitted a letter from his doctor who was treating plaintiff for "severe, impairing scarring lung disease, the result of prior inhalation exposures to asbestos and other mineral dusts in his work environment."

The doctor strongly recommended that Jacobsen be "placed in a work setting free from exposure to airborne irritant or fibrogenic dusts, fumes and gases." The request was denied. On June 6, 2006, Jacobsen was placed on unpaid medical leave and his job was left open in the event that his condition improved. On March 26, 2007, at the end of the leave, and without dialogue concerning any accommodation, Jacobsen's employment was terminated.

Under the state HRL, Jacobsen's employer was obligated to provide reasonable accommodations to the known disabilities of its employee in connection with his job.7 "Reasonable accommodation" is defined as actions taken by an employer which "permit an employee…with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held…provided, however, that such actions do not impose an undue hardship on the business."8Similarly, the City's Human Rights Law requires that an employer "shall make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job."9

Our state and city HRLs also require more: a good-faith dialogue between the employer and employee about what kind of accommodation would be required to allow them to continue their relationship.
Judge Abdus-Salaam, wrote as follows: "By speaking openly about an employee's impairment and the employer's ability to adjust its practices to meet the employee's needs, the parties may come to a mutually beneficial arrangement which ensures that the disabled individual has a fair opportunity to work, provides the employer with the advantages of a productive and qualified disabled employee, and forestalls needless litigation."

Interactive Process: Dialogue

In Jacobsen, the court determined the disability laws indicate that an employee's suggestion of a specific accommodation triggers the employer's obligation to consider whether the burden imposed upon the employer's business would be reasonable. The court commented that "[i]n this way, the employer's response to the employee's request and any ensuing dialogue about the impact of the proposed accommodation on the employer's business inform the determination of whether a reasonable accommodation exists."

The lesson of Jacobsen is as follows: An employer normally cannot obtain summary judgment on a state or city disability claim unless the record demonstrates that there are no triable issues of fact as to whether the employer considered a requested accommodation and where the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request. To prevail on a summary judgment motion the employer must show that it engaged in a good-faith interactive process that assessed the needs of the disabled individual and the reasonableness of the accommodation requested.

Looking Ahead

As a first step in providing a reasonable accommodation, an employer must engage in a good-faith interactive process that assesses the needs of the disabled individual and the reasonableness of the accommodation requested. If communication is refused by either the employer or employee, the interactive process never comes into being. The refusal to engage must be well-documented; it will be critical evidence in litigation.

What is the interactive process envisioned by both state and federal disability discrimination statutes sufficient to satisfy an employer's statutory obligation to provide a reasonable accommodation?

• The employer must give individualized consideration to any request and may not arbitrarily reject the employee's proposal without further inquiry.
• If the accommodation requested is not feasible for the employer, the employer must be able to prove why. Again, "undue hardship" must be supported by evidence in admissible form.
• Best practices dictate that the employer should proactively assess and understand the disability of the employee and approach the employee first with an immediate plan.
• If the employee makes the request first, engage and document. Engage and document well.
The fact is not new that disability discrimination statutes, whether federal or state, envisage employer and employee engaged in an interactive process in arriving at a reasonable accommodation for a disabled employee.10 The employer has the responsibility to investigate an employee's request for accommodation and determine its feasibility. "An employer who fails to do so, and instead terminates the employee based on exhaustion of leave, has discriminated 'because of' disability within the meaning of the [law]."11

Adverse employment actions against an individual can never be justified based upon a mere relationship between the disability and the employee's ability to perform certain job duties. The rare situation where adverse employment action will be warranted must be "based upon an insurmountable 'disability' which would prevent a particular individual from performing the tasks which are inherently involved in a particular job."12

Reasonableness remains the touchstone in New York city and state employment discrimination law. And with respect to a reasonable accommodation, as Judge Abdus-Salaam writes in Jacobsen: "Nothing can be more reasonable than an open-minded discussion resulting in a viable compromise."

Joseph D. Nohavicka is a partner in Pardalis & Nohavicka in Astoria.

1. 2014 NY Slip Op 02098 (Decided March 27, 2014).
2. Executive Law §296.
3. Administrative Code of the City of NY §8-107.
4. Executive Law §296 (1) (a); Administrative Code §8-107 (1)(a).
5. See Executive Law §296 (3)(a); Administrative Code §8-107 (15)(a).
6. 22 NY3d 881 (2013).
7. Executive Law §296(3)(a).
8. Executive Law §292(21-e).
9. Administrative Code §8-107(15)(a).
10. Parker v Columbia Pictures Indus., 204 F3d 326, 338 (2d Cir 2000).
11. Id.
12. Jacobsen, supra, citing Letter from Governor's Office of Employee Relations (June 22, 1979).

Read more: http://www.newyorklawjournal.com/id=1202650222254/Disability-Employment-Law%3A-Good-Faith-Interactive-Process#ixzz2yOd0s2Cy

Reprinted with permission from the “ISSUE DATE” edition of the “PUBLICATION”© 2014 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com - 877-257-3382 - reprints@alm.com.

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