In December 2017, by a vote of 48 to 2, the New York City Council passed by a vote of 48-2 Local Law No. 59 (2018), amending the New York City Human Rights Law (“NYCHRL”) by creating an independent cause of action against employers who fail to engage in the interactive process to determine if an accommodation of an eligible employee is needed. In other words, an employer may not “refuse or otherwise fail 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,” whether related to a disability, religious practices, pregnancy or childbirth, or needs as a victim of domestic violence. The law went into effect on October 15, 2018.
The term “cooperative dialogue” means the process by which a covered entity and an employee who may be entitled to an accommodation engage in good faith dialogue (written or verbal) concerning an employee’s accommodation needs. This dialogue may include any of the following: potential accommodations that may address the employee’s accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the covered entity.
Under the Americans with Disabilities Act (“ADA”), the Second Circuit held that failure to engage in an interactive process does not form the basis of a disability discrimination claim in the absence of evidence that a reasonable accommodation was possible. Under the NYCHRL, however, there was a question as to whether an employer’s failure to engage in the interactive process is itself a violation of the law. This question was answered in the negative by the New York Court of Appeals in Jacobsen v. New York City Health & Hosps. Corp.:
[T]o the extent … that a good faith interactive process is an independent element of the disability discrimination analysis under … City HRL which, if lacking, automatically compels a grant of summary judgment to the employee or a verdict in the employee’s favor, we reject that notion.
The result of Local Law No. 59 is that the City Counsel has essentially overruled Jacobsen.
The passage of this law is fantastic news for all New Yorkers. If you believe your employer has failed to engage in the interactive process to find an accommodation that would enable you to work with your mental or physical condition, contact The Harman Firm, LLP.