Disability & Employment Law in New York State - Cornell University

Disability & Employment Law in New York State:Analysis and RecommendationsAdditionally, employers, labor organizations and employment agencies may be heldresponsible for discrimination in access or admission to training or apprenticeshipprograms, or if reasonable accommodations are denied within those programs. 68D) DefensesNYSHRL provides an “undue hardship” defense to the requirement to providereasonable accommodations:(b) Nothing contained in this subdivision shall be construed to requireprovision of accommodations which can be demonstrated to impose anundue hardship on the operation of an employer’s … business,program or enterprise. In making such a determination with regard toundue hardship the factors to be considered include:(i) The overall size of the business, program or enterprise with respectto the number of employees, number and type of facilities, andsize of budget;(ii) The type of operation which the business, program or enterprise isengaged in, including the composition and structure of theworkforce; and(iii) The nature and cost of the accommodation needed. 69The meaning of undue hardship under the NYSHRL is similar to federal disability law,focusing on the nature and cost of the accommodation, the type and nature of the workthe employer performs, and the size and organizational budget of the employer. 70 Forinstance, accommodations are less likely to be considered reasonable if they are verycostly relative to the organizational budget, or require drastic changes to theorganizational structure or purpose. Accommodations that alter specific policies ornorms for individuals with disabilities, but which do not significantly affect the wholestructure of the workplace or its purpose, likely will be found reasonable. 71While the ADA contains explicit statutory language establishing what defenses willexcuse an employer from liability for discriminatory action, the NYSHRL is not similarlyconstructed. The ADA provides that denying a job or benefit to a person with a disabilitybased on qualification standards can be found lawful where it is “job-related andconsistent with business necessity.” 72 Although the NYSHRL does not discuss defensesas such, relatively similar outcomes are achieved, in that a plaintiff has the burden ofestablishing that s/he can perform the normal job functions, with or withoutaccommodation.68 N.Y. Exec. Law §§ 296(1)-a).69 N.Y. Exec. Law § 296(3)(b).70 Id.71 See, e.g., Krikelis v. Vassar College, 581 F.Supp.2d 476 (S.D.N.Y. 2008) (holding that a policy aboutthe structure of employee breaks should be modified to accommodate the needs of a diabetic employeewho needed to eat more frequently).72 ADA, 42 U.S.C. § 12113(a).12