Providing reasonable accommodations to employees at work makes sense.

Sometimes it’s a physical impairment. In others it’s psychiatric.

But in most cases employees have to ask employers for reasonable accommodations which do not cause undue hardships for employers.

There are exceptions.

Example #1: Employee limps to work. Employer observes the limp and asks employee whether seated work would help them. No discrimination.

Example #2: Employee threatens physical violence at work. Fellow employees complain to employer that they fear for their own safety. Employer is also aware that the “threatening employee” recently underwent confidential personal trauma and suggests that employee undergo a psychiatric evaluation, at employer’s expense, to assure it that employee poses no immediate threat of violence at work. Probably no discrimination.

Example #3: Employee is known to be a recovering alcoholic or drug addict. Employer smells a strange odor on employee at work and video records this employee at work, causing a public scene with ensuing rumors of substance abuse by employee. Employee is suspended from work indefinitely even though they offered to be tested for non-prescribed substances. Probably discriminatory since employer knew employee was a recovering addict, it chose not to test employee for drugs or alcohol but suspended employee with pay, plausibly foreseeing that the employee might resign.

Provision of a chair in Example #1 is the reasonable accommodation. The psychiatric evaluation appears reasonable in lieu of termination for Example #2. The recovering addict in Example #3 is denied testing even after offering to be tested with the employer’s denial appearing to be motivated by embarrassing the employee to resign.

Our experience includes the above along with countless disability accommodation claims with and without the FMLA.

Many times, disability discrimination is the last thing employees consider.

Only after we have discussed the facts at some length do we uncover potential disability, failure to accommodate, or refusal to engage in the interactive process claims. There is still a stigma associated with having a “disability” so many times employers are unaware of them.

What triggers the interactive process?

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.

“Severe or Pervasive” standard gone

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, has eliminated one of the most common employer defenses: “conduct was not severe or pervasive.” Only “petty slights” or “trivial inconveniences” are now overlooked. The change in law affects 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 has eliminated 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 has eliminated that common defense effective 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 begin applying the new law now.

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

“(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].

Call some employment lawyers to inquire about the new Executive Law in New York. We expect it to have a significant affect upstate. Your claim might survive what would have been dismissed under the old law.