These two areas of employment discrimination are especially challenging. All discrimination claims require some degree of empathy. All demand being able to put oneself in another’s shoes. Many of us have suffered temporary disabilities. We see a person on crutches or with a cast and recall how we felt when that was us. What triggers Interactive Process? Most employees and employers know that when an employee with a disability asks for an accommodation some type of interactive process should occur. When an employer recognizes that an employee might need an accommodation the employer should not wait for the employee to ask for an accommodation. What many employers and employees might not know is that in New York the interactive process should occur if an employer had “enough information to put it on notice that an employee might have a disability.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 314 (3rd Cir. 1999); Jacques v. DiMarzio, Inc., 200 F.Supp.2d 151, 169 (E.D.N.Y. 2002). This goes beyond an employer who: (1) knows that the employee has a disability (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. In Taylor, an employee had a psychotic episode at work which required immediate hospitalization. Although the employer was not aware that the employee suffered from bipolar disorder, it had an obligation to engage in the interactive process once it regarded the employee who requested an accommodation as being disabled. Is ability to interact or get along with others a Major Life Activity? Although other circuits are split, an Eastern District Court believed that ability to get along with others was a major life activity. This meant that an employee who exhibited signs of such inability might be regarded as disabled. Such a person would necessarily deserve an employer’s exploration of whether a reasonable accommodation could be made. And the employee would not necessarily have to request an accommodation him or herself. Employers can find themselves facing claims for discriminating against regarded as disabled employees when the facts of a particular situation, recent medical or psychiatric scenarios, provide information that an employee might be disabled and therefore might require an automatic interactive process initiated by the employer. Diversity Sensitivity Few of us have walked in the shoes of the opposite sex. What does that feel like? What would life be like were we not what our gender experiences define for us? Maybe too philosophical but important for employment lawyers to consider. Sometimes advocates of the opposite gender can be very effective because of those advocates’ own life experiences. “Severe or Pervasive” going away in 2020 What would a reasonable employee feel or do? Even if we can not imagine offense to a person in a protected class, a reasonable juror placing her or himself in those shoes might, regardless of gender. New York’s Executive Law, covering more than a dozen protected classes of employees, is eliminating one of the most common employer defenses: “conduct was not severe or pervasive.” Only “petty slights” or “trivial inconveniences” will be overlooked. The change in law will affect all protected classes, not just because of sex or disabilities. Title VII covers “because of sex” discrimination as does New York’s Executive Law. “Not severe or pervasive” was a defense under both laws. New York Law is eliminating that common defense. The ADAAA covers disability and perceived disability discrimination as does New York’s Executive Law. “Not severe or pervasive” was a defense under both laws. New York Law is eliminating that common defense [eliminating “severe or pervasive” as a defense became law on August 12, 2019, taking effect 180 days later on February 8, 2020]. The New York City Human Rights Law states that discrimination shall play no role in employment decisions. New York State’s Executive Law has slightly different language. The Courts will begin applying the new law early in 2020. On August 12, 2019 Governor Cuomo signed a substantial amendment to Section 296 of New York’s Executive Law. The amended law added Paragraph (h) which reads: New Language of New York Executive Law applied 2020 “(h) For an employer, licensing agency, employment agency or labor organization to subject any individual to harassment because of an individual’s age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because the individual has opposed any practices forbidden under this article or because the individual has filed a complaint, testified or assisted in any proceeding under this article, regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims. Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories. The fact that such individual did not make a complaint about the harassment to such employer, licensing agency, employment agency or labor organization shall not be determinative of whether such employer, licensing agency, employment agency or labor organization shall be liable. Nothing in this section shall imply that an employee must demonstrate the existence of an individual to whom the employee’s treatment must be compared. It shall be an affirmative defense to liability under this subdivision that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.” [bolded parts for emphasis only]. “A sham issue of fact” not common on Summary Judgment On week after Governor Cuomo signed amendments to the Executive Law, our Second Circuit Court of Appeals decided Bentley v. AutoZoners, LLC, et al., No. 18-2441-cv (2nd Cir. 2019). Although Bentley was one of three parts sales managers working in Connecticut who lost her hostile work environment case under Connecticut Law, would the result have been different under New York’s soon to change Executive Law? Bentley worked for just under a year and a half. The store where she was a part-time sales associate, had no store manager during that time period. Two employees were male and two, including Bentley, were female. Autozone gave employees its handbook which instructed them to promptly report misconduct to human resources [under New York’s 2020 law failing to complain to HR would not exempt an employer from liability]. Bentley did have some attendance and tardiness issues. Don’t allege text message evidence if you no longer have the phone During her deposition, Bentley alleged that on more than 20 occasions a male parts sales manager made vulgar and disparaging comments about women’s job performance, called them “lazy” and suggested they should be home “baking cookies.” Autozone admitted that such comments were made. Would 20 comments like that be more than “petty slights” or “trivial inconveniences” under New York’s 2020 Executive Law? Bentley testified that she texted “the exact comment” to an Autozone HR manager. She further testified that she texted similar messages to HR during two additional months and also that she made reports by telephone. She was unable to produce any text messages or calls and explained that she had disposed of the cell phone after she was terminated from her job. It appeared that since there was no actual manager on premises at her store, Bentley was concerned about providing notice to HR. Under oath means what it says When an employee makes an under oath declaration, either in a charging document or complaint, an affidavit, or during deposition, every employee must be careful not to allege facts which no reasonable person might believe. In this case it appeared that the Appellate Court was unable to comprehend why an employee with facts, which on their face were alleged to be supported by texts and voice call data, would discard her phone and throw away what may have been her best evidence. Lawyers try to protect clients. If this employee did discard her phone before she retained legal counsel, the employee should have disclosed that to her own lawyers. They may have suggested that she not allege facts which made no sense? Text messages involve at least 2 parties who may be able to retrieve texts’ content Bentley went beyond simply alleging that she discarded her phone. She testified that she specifically recalled standing on the sales floor when she sent her first text message to HR. Only after she was confronted with text messages which contradicted her testimony did she recant her testimony. In her initial written statement to HR Bentley wrote that she had not reported the sexist remarks. She attempted to explain how that statement contradicted her deposition testimony by professing to misunderstand the questions she was asked. Know your facts! Incomplete and Inconsistent Answers destroy claims The court writes that “complete” answers are mandatory. A reasonable employee asks for clarification if the employee does not understand a question or if there is ambiguity. There was no mention of a language barrier with Bentley. The court noted the contradictions in Bentley’s Commission on Human Rights and Federal Court complaints. Both documents contradicted her deposition testimony which alleged notice of sexist remarks to HR over the course of several months by text and voice messages. Employee told co-worker to have their _ _ _ _ sucked The court noted that Bentley admitted using especially crude language toward a co-worker which “was extremely crude and would not be tolerated in any workplace outside, perhaps, of a locker room.” Bentley’s case is a great example for anyone who believes that sex harassment, hostile workplace, or gender discrimination claims are slam dunk cases. They rarely are. Employment lawyers spend countless hours with potential clients and clients going through the facts of each case. Credibility of employees and witnesses is critical. Any employee who alleges that evidence exists should be prepared to produce it. And if they can’t, their explanation better be plausible; not just possible. Calling multiple employment lawyers is a great start. You may be working with legal counsel for many months or even years so establishing trust is important. Neither lawyer nor client can expect good results without that one most important thing that all courts look for. A search for the truth.