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Disability Discrimination Under the New York City Human Rights Law

Edgar M. Rivera, Esq.

According to the NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, approximately one million residents (11.2 percent of the population) of New York City live with a disability.  Fostering environments of inclusivity and accessibility allow people with disabilities to enter and remain in the workforce and meet their most basic and critical needs.  The New York City Human Rights Law (“NYCHRL”)—New York City’s local anti-discrimination statute—is one of the most broad and remedial in the country.  It must be construed “independently from similar or identical provisions of New York State or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”  In addition, exemptions to the NYCHRL must be construed “narrowly in order to maximize deterrence of discriminatory conduct.”

As a result, the provisions of the NYCHRL that prohibit disability discrimination are generally broader than the Americans with Disabilities Act (“ADA”).  An individual is considered disabled, within the meaning of the ADA, if he has a physical or mental impairment that substantially limits one or more of the major life activities, has a record of such an impairment, or has been regarded as having such an impairment.  Under the NYCHRL, however, a “disability” means “any physical, medical, mental or psychological impairment, or a history or record of such impairment.”  The NYCHRL definition of disability is “liberalized and expansive.”

The NYCHRL creates four general causes of action related to disability discrimination.  First, it prohibits covered entities from discriminating against an individual based on disability or perceived disability.  As such, under the NYCHRL, both temporary or short-term injuries, as well as chronic conditions, may qualify as disabilities even if the impairments, when treated, permit the aggrieved individual to perform physical activities without limitation, and/or the conditions do not substantially limit the individual’s major life activities.  Second, it requires that covered entities provide reasonable accommodations to individuals with disabilities to enable them “to satisfy the essential requisites of a job or enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.”  Under the law, all accommodations are reasonable unless a covered entity shows that the requested accommodation would cause it an “undue hardship.  Third, it prohibits discrimination based on one’s “association” or relationship with an individual with an actual or perceived disability.  Fourth, it requires that covered entities refrain from refusing or otherwise failing to “engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation.”

If an employer has knowledge that an employee’s performance at work is diminished, or that their behavior at work could lead to an adverse employment action and has a reasonable basis to believe that the issue is related to a disability, the employer must initiate a cooperative dialogue with the employee to explore whether the employee needs an accommodation to continue performing the essential requisites of the job.  Unlike the ADA, under the NYCHRL, an employee may be entitled to a reasonable accommodation when their relative or associate has a disability.

Many policies that may be legal outside of the City are illegal within.  For example, a policy that requires employees to be “100% healed” or “fully healed” to return to work and refuses to provide certain types of accommodations is unlawful under the NYCHRL, as an employer cannot require an employee with a disability to have no medical restrictions if the employee is able to perform his job with or without a reasonable accommodation.  Similarly, a policy that categorically prohibits “light duty” work assignments and fails to provide an exception for reasonable accommodations would be discriminatory.

While the central question in a disparate treatment case is whether the protected trait, at least in part, motivated the covered entity’s decision or actions, disparate impact claims involve policies or practices that are facially neutral, but disproportionately or more harshly impact one group. Unless such policies or practices bear a significant relationship to a significant business objective of the covered entity, they are unlawful under the NYCHRL.  Therefore, under a disparate impact theory of discrimination, a facially neutral policy or practice may be found to be unlawful discrimination even without evidence of the covered entity’s subjective intent to discriminate. For example, a policy that imposes a penalty without exception on employees for exceeding a permissible amount of sick leave may appear facially neutral, but it may disparately impact individuals with disabilities, which may result in a finding that the policy is unlawful under the NYCHRL.  By contrast, a policy that allows for the possibility of additional sick leave as a reasonable accommodation for individuals with disabilities would not run afoul of the NYCHRL.

The standard for establishing a case of disparate impact under the NYCHRL is lower than the standard for analogous claims under federal laws such as the ADA.  Under the NYCHRL, a complainant must show that a facially neutral policy or practice has a disparate impact on a protected group.  Once such a showing has been made, the covered entity has an opportunity to plead and prove, as an affirmative defense, that either: the policy or practice complained of bears a significant relationship to a significant business objective, or the policy or practice does not contribute to the disparate impact.  This defense is defeated if the complainant produces substantial evidence of an available alternative policy or practice with less disparate impact, and the covered entity is unable to establish that an alternative policy or practice would not serve its business objective as well as the complained-of policy or practice. “Significant business objective” includes, but is not limited to, successful performance of the job.

Our city is at its best when it draws on the abilities of all its residents.  Equal access to employment for people with disabilities is an investment that will yield long-lasting economic and societal gains.  At The Harman Firm, LLP, we are dedicated to advancing accessibility and giving all New Yorkers a chance to thrive and are committed to ensuring that New Yorkers with disabilities are able to live, work, and enjoy all that New York City has to offer, without discrimination.

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