disability discrimination

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.

Our colleague at Epstein Becker Green has a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the retail industry: “The Generally Prevailing Website Accessibility Guidelines Have Been Refreshed – It’s Time to Officially Welcome WCAG 2.1.”

Following is an excerpt:

After nearly ten years, on Tuesday, June 5, 2018, the World Wide Web Consortium (the “W3C”), the private organization focused on enhancing online user experiences, published the long awaited update to its Web Content Accessibility Guidelines 2.0 (“WCAG 2.0”), known as the WCAG 2.1. Those who have been following along with website accessibility’s ever-evolving legal landscape are well aware that, despite not having been formally adopted by regulators for the vast majority of the private sector, compliance with WCAG 2.0 at Levels A and AA has become the de facto baseline for government regulators, courts, advocacy groups, and private plaintiffs when discussing what it means to have an accessible website. …

Read the full post here.

Our colleague Frank C. Morris, Jr., attorney at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the retail industry: “New Online Recruiting Accessibility Tool Could Help Forestall ADA Claims by Applicants With Disabilities.”

Following is an excerpt:

In recent years, employers have increasingly turned to web based recruiting technologies and online applications. For some potential job applicants, including individuals with disabilities, such as those who are blind or have low vision, online technologies for seeking positions can prove problematic. For example, some recruiting technologies and web-based job applications may not work for individuals with disabilities who use screen readers to access information on the web. The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) recently announced the launch of “TalentWorks.”

Read the full post here.

Joshua A. Stein
Joshua A. Stein

For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock.

In National Association of the Deaf, et al., v. Harvard University, et al. (Case No. 3:15-cv-30023-MGM, Dist. Mass.) and National Association of the Deaf, et al., v. Massachusetts Institute of Technology (Case No. 3:15-cv-30024-MGM, Dist. Mass.), Plaintiffs brought claims on behalf of individuals who are deaf or hard-of-hearing, alleging that Harvard and MIT violated Section 504 of the Rehabilitation Act of 1973 and Title III of the Americans with Disabilities Act by failing to offer its online video content in a format accessible to individuals who are deaf or hard-of-hearing (e.g., by providing captioning).  Facing case law in the District of Massachusetts that already made arguing against the potential applicability of Title III to goods and services offered on websites more difficult (see Nat’l Assoc. of the Deaf v. Netflix, Inc. (D. Mass. June 19, 2012)), both Harvard and MIT made motions to dismiss and/or stay the actions pending the U.S. Department of Justice’s eventual promulgation of website accessibility regulations governing places of public accommodation under Title III (currently expected in 2018) by asserting the primary jurisdiction doctrine.  DOJ submitted Statements of Interest in both cases opposing Harvard and MIT’s motions, arguing that the courts are presently capable of adjudicating Plaintiffs’ claims based on the existing state of the law and any delay pending the release of its regulations would unduly prejudice the Plaintiffs.

While it will not become a final order until adopted by U.S. District Court Judge Mastrioanni, in an extensive and thorough decision, Magistrate Judge Robertson, denied both Harvard and MIT’s motions in their entirety.  The decisions hold, among other things, that these were not appropriate matters to invoke the primary jurisdiction doctrine because the existing law provides the necessary legal framework for the Court to appropriately adjudicate whether or not Section 504 and Title III were violated by Harvard and MIT’s failure to provide captioning of its online video content.  The Court explained that it did not need to await DOJ’s issuance of final regulations because, if necessary, it had other resources available through which to educate itself about any technical issues involved in the case.  Moreover, as the analysis involved in accessibility cases must be specifically tailored to the entity and situation in question, the Court was not concerned about the potential impact these decisions might have on any broader issues addressed by DOJ’s regulations.  Finally, noting that DOJ’s Title III regulations will not even be in final form if delivered as planned in 2018, the Court expressed concern about the amount of time that would elapse for Plaintiffs if it was concluded that the defendants were violating the law.  This decision comes on the heels of the U.S. District Court of the Western District of Pennsylvania’s decision this past November denying a similar motion to dismiss made by Huntington National Bank in defending against a claim brought by the law firm Carlson Lynch Sweet & Kilpea on behalf of Michelle Sipe.  (Sipe v. Huntington National Bank, Case No. 2:15-cv-01083-AJS (W.D.Pa. 2015))  While that decision came without any discussion, the papers filed by both parties relied heavily upon those submitted by the parties in the Harvard and MIT decisions.

These recent decisions reveal a reluctance among the courts to dismiss website accessibility actions on technical/jurisdictional grounds.  Taken along with the expanding number of jurisdictions who subscribe to legal theories accepting that Title III covers website accessibility (whether adopting a nexus theory or broadly interpreting the spirit and purpose of the ADA) and it is becoming increasingly clear that many businesses will have a difficult time ridding themselves of website accessibility claims in the early stages of litigation.  Of course, these decisions have been quick to note they do not foreclose a variety of potentially successful defenses that may be asserted later in the litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  While, to date, the existing website accessibility case law has not focused on when these defenses might prevail, with the recent proliferation of website accessibility demand letters and litigation, businesses should soon find themselves with greater guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

We will, of course, continue to monitor these ongoing developments and update you as appropriate.

 

The top story on Employment Law This Week is the EEOC’s release of fiscal year 2015 enforcement data.

Retaliation claims were once again the number one type of charge filed, up 5% from last year for a total of 44.5% of all charges. Race claims were second, making up 34.7% of claims. 30.2% of charges alleged disability discrimination, up 6% from last year. Ronald M. Green from Epstein Becker Green (EBG) gives more detail on what’s behind the numbers.

View the episode below or read recent comments about the EEOC’s release, from David W. Garland of EBG.