The New York City Commission on Human Rights (“Commission”) recently issued a 146-page guide titled “Legal Enforcement Guidance on Discrimination on the Basis of Disability” (“Guidance”) to educate employers and other covered entities on their responsibilities to job applicants and employees with respect to both preventing disability discrimination and accommodating disabilities. The New York City Human Rights Law (“NYCHRL”) defines “disability discrimination” more broadly than does state or federal disability law, and the Guidance is useful in understanding how the Commission will be interpreting and enforcing the law.

The basic principles of the NYCHRL’s prohibition against disability discrimination are as follows:

  1. Employers may not discriminate against a qualified job applicant or employee on the basis of an actual or perceived physical or mental disability;
  2. Employers may not discriminate against an applicant or employee based upon his or her association with an individual with an actual or perceived disability;
  3. Employers must provide applicants and employees, upon their request, with a reasonable accommodation to perform the essential duties of the job, if the disability is known or should have been known by the employer, unless, among other reasons doing so would result in undue hardship; and
  4. The cooperative dialogue law, which becomes effective October 15, 2018, will require employers to engage in and document a “cooperative dialogue” with a person who has requested an accommodation or who the employer “has notice may require such an accommodation.” As the Guidance makes clear, the Commission generally construes these four tenets and the myriad employer responsibilities they embody liberally. For example, as set forth in the chart below, the NYCHRL prohibits a wide range of conduct.

Prohibited Conduct under NYCHRL

Prohibited Conduct Definition Example(s)
Disparate Treatment Treating a job applicant or employee with a disability or perceived disability differently from other applicants or employees without a disability. Refusal to hire an otherwise qualified applicant as a sales clerk because the individual has a speech impediment (assuming the applicant can still be easily understood).

 

Harassment A single or repeated incident that “creates an environment or reflects or fosters a culture or atmosphere of stereotyping, degradation, humiliation, bias, or objectification,” of an individual because of his or her actual or perceived disability. Under the NYCHRL, the severity or pervasiveness of the harassment is only relevant to damages. A supervisor calls an employee who has cerebral palsy a “spaz,” and states that he would not have hired him or her if he knew that the employee’s disability was “this bad.”
Discriminatory Policies/Practices Policies or practices that exclude workers with disabilities from whole job categories or specific positions without an individualized assessment of the candidate and the essential requisites of the job, unless the employer can demonstrate a legitimate non-discriminatory justification for the exclusion policy.

 

A policy that requires employees to be “100%” healed to return to work and that does not allow for consideration of a reasonable accommodation. (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.”)

 

Actions Based on Stereotypes and Assumptions Reliance on stereotypes or assumptions when taking adverse action, without regard to an individual’s specific ability or circumstance. Refusal to hire an applicant:

Who uses a wheelchair, because of concerns that the applicant may be unable to attend off-site meetings; or

Whose cancer is in remission, because of concerns that the cancer will recur.

 

Neutral Policies that Have a Disparate Impact

 

Policies or practices that are facially neutral, but more harshly affect one group, unless the policy or practice bears “a significant relationship to a significant business objective of the employer.” “No fault” absence or maximum leave policies;

A policy that, without exceptions, penalizes employees who exceed a permissible amount of sick leave.

Associational Discrimination Taking adverse action against individuals who associate with people who have disabilities based on unfounded stereotypes and assumptions.

 

Firing an employee who volunteers as an aide to people who are HIV-positive out of fear that the employee will contract the disease;

Refusing to hire an applicant with a disabled child because of concerns that the applicant may be an unreliable employee.

Disability Inquiries: What May Employers Ask Applicants and Employees?

 Applicants

The NYCHRL prohibits job postings, applications, interviews, and other selection processes that “directly or indirectly suggest an intent to discriminate” based on disability. For example, employers should not ask an applicant if he or she has or has had a disability, or inquire as to the details of the applicant’s disability. Nor should an employer request medical documentation regarding a disability. The Guidance also cautions employers against adopting a range of practices and policies, from height and weight standards to employment tests, unless the job requirement for which the criterion or test is being used is significantly related to an important business objective.

However, employers may require an applicant to take or pass a medical exam or test after the applicant receives a conditional offer of employment, as long as this requirement is applied consistently to all prospective employees, the test is job-related, and it is not used to screen out individuals with a disability.

The Guidance also cautions employers against asking applicants questions concerning gaps in their work history, “as this may lead to inquiries relating to an applicant’s disability,” or the disability of an individual with whom the applicant is associated.

To avoid potentially improper questions, the Guidance advises employers to focus their application and interview inquiries on the applicant’s ability to perform “the essential requisites of the job, with or without an accommodation,” and to present such questions in a “yes or no” format.

Finally, the Guidance reminds employers that they are required to provide reasonable accommodations to prospective employees during the application and interview processes, such as screen-reading software for a visually impaired applicant.

Employees

Generally, an employer should avoid inquiries into an employee’s disability or perceived disability unless the employee makes a request for a reasonable accommodation or the employer “has notice” of the disability, for example, where a job applicant arrives for an interview in a wheelchair, or an employee shows up for work one day using crutches or wearing a hearing aid. However, within narrowly defined parameters, an employer may inquire about an employee’s disability or require a medical exam when an employee who has been on medical leave wants to return to work. With the focus of any such inquiry limited to information that is necessary to assess the employee’s ability to work, an employer may inquire about the employee’s disability if the employer:

Has reason to believe the employee’s ability to perform essential job functions is impaired;

Is concerned that the employee will pose a direct threat to the safety of him/herself or others; or

Engages in a “cooperative dialogue” to determine whether and what kind of an accommodation should be provided for the employee.

Notably, employers may require all employees to undergo periodic medical examinations, but only if the policy is uniformly applied, the exam is “narrowly focused” on assessing the employees’ ability to perform their job functions, and the test is administered in the same manner to all employees.

New York City Law on Requests for Reasonable Accommodation

Under the NYCHRL, all requested accommodations are presumed to be reasonable. As a result, an applicant or employee need not prove that the requested accommodation: (1) is necessary; (2) does not pose an undue hardship to the employer; or (3) is readily feasible. However, an employer can require medical documentation to support a request for an accommodation, although it cannot require a specific type of documentation.

To overcome the presumption of reasonableness, an employer must show that: (i) there is no accommodation that would enable the applicant or employee to perform the essential duties of the job; (ii) the proposed accommodation would impose “undue hardship” on the employer; or (iii) the applicant or employee was offered and rejected a different accommodation that was reasonable. The mere fact that the accommodation will cause the employer to incur an expense does not constitute undue burden. Rather, the Commission weighs the cost involved in the context of other considerations, including the size of the employer and the duration for which the accommodation is needed.

Further, the NYCHRL imposes a duty on employers to provide reasonable accommodations to applicants and employees both when the disability is known and when the employer should have known about the disability, even if the applicant or employee did not request an accommodation. If the employer suspects or should suspect that the individual may need an accommodation, the employer should not ask the individual if he or she has a disability. Rather, the employer should “ask if there is anything going on that the employer can help with” and inform the person of the support services provided by the employer to individuals with disabilities.

The Guidance instructs employers to assess requests for a reasonable accommodation on a case-by-case basis, and offers some specific suggestions for reasonably accommodating the needs of a disabled applicant or employee. For example, employers can make their online application process accessible to individuals with visual impairments, or allow an employee with anxiety to bring his or her service dog to the office. Employers can also provide a quieter workspace to reduce noisy distractions for an employee with a mental health condition.

The Guidance also discusses leaves of absence as a reasonable accommodation. It advises that a paid or unpaid leave of absence is an appropriate accommodation mostly “in circumstances in which no other accommodation can be made,” or where, under the facts of the situation, it is the “preferred” accommodation. The Commission advises that, absent special circumstances, an employer should seek an accommodation that allows an employee to remain working.

Finally, the Guidance encourages employers to include information on their reasonable accommodation policies and processes in an employee handbook.

Compliance

Employers should review current policies and practices, including application forms and accommodation request forms, to ensure that they are consistent with the Guidance, particularly with respect to the procedures and documentation requirements under the new “cooperative dialogue” law. Additionally, employers should update employee handbooks to reflect any modifications in company practices concerning accommodation and the cooperative dialogue process. Employers also should train managers and supervisors on their obligations with respect to avoiding disability discrimination and following the reasonable accommodation process, including the substantive and documentation requirements imposed under the cooperative dialogue law.

Finally, employers should ensure that Human Resources and supervisory personnel understand the potential interplay of the cooperative dialogue law with another recently enacted statute – the Temporary Schedule Change for Personal Events Law – which became effective on July 18, 2018. Many requests for accommodation involving proposed changes to the hours or location of work will implicate both laws, and will require the employer to document the requests and employer responses in a particular manner.

This post was written with assistance from Alison Gabay, a 2018 Summer Associate at Epstein Becker Green.

On March 21, 2018, Washington Governor Jay Inslee signed bill SB 5996 (the “Law”), which prohibits employers from requiring as a condition of employment that employees sign a nondisclosure agreement preventing them from discussing workplace sexual harassment or sexual assault. The Law goes into effect on June 7, 2018.

In addition to sexual offenses in the workplace, the Law covers such incidents that occur at work-related events “coordinated by or through the employer,” or between employees, or between an employer and an employee off the employment premises. The new Law also prevents employers from retaliating against employees who disclose workplace sexual harassment or sexual assault.

Notably, however, the Law does not prohibit an employer from including confidentiality provisions in a settlement agreement with an employee regarding sexual harassment allegations. Further, the Law provides exceptions for human resources, supervisory, and managerial staff who are expected to maintain confidentiality as part of their jobs. It also excludes employees who participate in an “open and ongoing” sexual harassment investigation and are requested to maintain confidentiality during that investigation.

Under the Law, “sexual harassment” is defined broadly to mean unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal or physical conduct or communication of a sexual nature if submission to that conduct or communication is, among other things, used as a factor in decisions affecting that individual’s employment or creates a hostile environment. “Sexual assault” is similarly defined as any type of sexual contact or behavior that occurs without the explicit consent of the recipient.

Employers in other states should be aware that the kind of nondisclosure agreements banned by the new Washington law also may be unlawful under federal labor laws protecting concerted activity (i.e., with at least one other employee) for the employees’ mutual aid or protection.

State Commission to Develop Model Policies and Best Practices

Also on March 21, 2018, Governor Inslee signed bill SB 6471, which directs the Washington State Human Rights Commission to create a “work group” to develop model policies and best practices for employers and employees to keep workplaces safe from sexual harassment. The bill requires the agency to adopt the model policies and best practices developed by the work group and to post them on the agency’s website by January 1, 2019.

Our colleagues , at Epstein Becker Green, have a post on the Health Employment and Labor blog that will be of interest to many of our readers in the retail industry: “Sixth Circuit Finds Title VII Covers Discrimination Based on Transgender Status.”

Following is an excerpt:

In a significant decision on Wednesday, March 6, 2018, the U.S. Court of Appeals for the Sixth Circuit held in EEOC v. R.G. &. G.R. Harris Funeral Homes that discrimination against a worker on the basis of gender identity or transitioning status constitutes sex discrimination that violates Title VII.

In R.G. & G.R., the funeral home’s owner fired funeral director Aime Stephens after she informed him she intended to begin a gender transition and present herself as a woman at work. In finding gender identity to be covered by Title VII, the Sixth Circuit also upheld the EEOC’s claim that the funeral home’s dress code, which has different dress and grooming instructions for men and women, discriminates on the basis of sex. …

Read the full post here.

On January 11, New York’s City Council passed Int. No. 1186-A, which amends the New York City Human Rights Law to expand the definition of the terms “sexual orientation” and “gender.”  Previously, the law defined sexual orientation as meaning “heterosexuality, homosexuality, or bisexuality.” The new definition takes a broader view and offers a more nuanced definition that recognizes a spectrum of sexual orientations, including asexuality and pansexuality.  As amended, the law defines sexual orientation as:

[A]n individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, bisexuality, asexuality, and pansexuality.

The law also offers clarity on the definition of “gender,” and continues to include a person’s gender-related self-image, appearance, behavior, expression, or other gender-related characteristic within its scope.

The new law will take effect on May 11, 2018.

Employers in New York City are required to provide their employees with reasonable accommodations related to childbirth and pregnancy. The New York City Commission on Human Rights has published a new factsheet and notice. The notice should be provided to all employees upon hire, and posted in the workplace to provide employees with notice of their rights under the NYC Human Rights Law.

The notice and factsheet outline employers’ responsibilities with respect to pregnant employees, and recommend that employers work with employees to implement accommodations that recognize employee contributions to the workplace and help keep them in the workplace for as long as possible. The notice and factsheet also provide employees with examples of reasonable accommodations, such as breaks to rest or use the bathroom while at work, and time and space to express breast milk at work.

In December 2016 Philadelphia’s City Council passed a Wage Equity Ordinance (“Ordinance”) prohibiting employers from asking applicants for their salary history or to retaliate against a prospective employee for failing to answer such a question.  The law, which was to become effective May 23, 2017, has been stayed pending resolution of legal challenge by the Chamber of Commerce for Greater Philadelphia, alleging that the law violates employers’ First Amendment rights.

Nevertheless, on October 24, 2017, the Philadelphia Commission on Human Relations adopted a regulation  (“Regulation”) implementing the Ordinance. The Regulation seeks to clarify what employers may and may not ask and to further define which employers and applicants are covered by the Ordinance.

Covered Employers and Applicants

The Regulation specifies that the Ordinance the term “Employer” applies only to persons who are interviewing applicants with the intention of filling a position located within the City.

Prohibited Inquiries

Under the Regulation, an employer “shall not include a question on paper or electronic applications asking Prospective Employees to provide their salary history at any previous position.” The Regulation also prohibits employers from asking current employees seeking a new position (located in Philadelphia) about the employee’s wage history from any previous employer.

Permissible Inquiries

Employers may inquire into the applicant’s salary expectations, skill level, and experience relative to the position sought. In addition, employers may use voluntary salary history disclosures an applicant makes “knowingly and willingly” during an interview, provided it is not in response to a question from an employer.

Action Items

Although the Ordinance is currently on hold, employers with positions or offices in Philadelphia may nevertheless wish to prepare for the possibility that the law will become effective by:

  • Identifying jobs that are based in Philadelphia. This will be especially important for positions where an employee may work in more than one location.
  • Preparing a Philadelphia-specific employment application that removes any request for salary history.  The ordinance does not expressly state that it is sufficient to have an instruction on the employment application that directs Philadelphia applicants not to answer salary history questions.

On October 23, 2017, New York Governor Andrew Cuomo signed legislation that amends the Clean Indoor Air Act to ban the use of electronic cigarettes (“e-cigarettes”) everywhere that smoking traditional tobacco products is prohibited.  With this amendment, the Clean Indoor Air Act will prohibit both smoking and vaping in certain indoor areas, including places of employment, as well as certain outdoor areas accessible to the public. This legislation will become effective on November 22, 2017.  Prior to this date,  any required posters and signs will need to be updated to include reference to “No Vaping” or “Vaping” along with the “No Smoking” or “Smoking” signs, or international “No Smoking” symbol.