Disability & Employment Law in New York State - Cornell University

More documents

Recommendations

Info

The ADA further provides that qualification standards may include being able to workwithout posing a “direct threat” to health or safety of others. 73 This has been interpretedby the EEOC and the U.S. Supreme Court to disqualify individuals for whom performinga particular job poses a direct threat to himself or herself. 74 The NYSHRL does not haveexplicit language comparable to the ADA, on the issue of posing a direct threat to healthand safety. 75 The NYSHRL provides that evaluation of the performance of work in a“reasonable manner” is contingent on employees receiving any needed reasonableaccommodations. 76 New York courts have held that where an employee may pose asafety or health risk, employer action, such as terminating the employee, may notviolate the NYSHRL. 77E) Burdens of ProofPlaintiffs bear the burden of proving that they are protected under NYSHRL. 78 Plaintiffsalso bear the burden of demonstrating that they are able to perform in a given position,in a reasonable manner with accommodations as necessary. In this regard, New Yorkoperates similarly to the ADA. 79When pursuing a claim for disability discrimination under the NYSHRL, plaintiffs alsobear the burden of demonstrating that negative or discriminatory treatment occurredbecause of the plaintiff’s disability. Elements of this burden include:Demonstrating that the employer was aware of the disability’s existenceDemonstrating that a discriminatory reaction to disability, rather than legitimatenon-discriminatory reasons, motivated the employer’s behavior. 80Where an employer asserts that a legitimate non-discriminatory reason for its behaviorexists, the plaintiff must demonstrate that this assertion is a pretext. 81 For instance, theemployee must demonstrate that disability was the primary or controlling reason whythe employer refused to hire, retain, promote, or otherwise treat the employee fairly.73 Id. § 12113(b).74 14 C.F.R. § 1630.15(b)(2); Echazabal v. Chevron, 536 U.S. 73 (2002) (holding that employer did nothave to hire a qualified employee with hepatitis C for a job in refinery because employer believedemployee’s health would be in danger).75 N.Y. Exec. Law §§ 290-301.76 Id. § 292.77 See, e.g., Shannen v. Verizon N.Y., Inc., 2009 WL 1514478, 1, 6 (N.D.N.Y. 2009) (holding that anemployer was not in violation of the NYSHRL or the ADA, where it required the employee to submit to apsychiatric evaluation, after the employee stated: “if someone was bothering me, I would go postal.”)78 See Phillips v. City of New York, 884 N.Y.S.2d 369 (1st Dept. 2009) (establishing that unlike federaland state laws, the New York City Human Rights Law made both undue hardship, and the employee’sincapability of performing essential job functions an affirmative defense). For analysis, see A. MichaelWeber & Bruce R. Millman, Responding to the Expanding City and State Human Rights Laws, 243-19N.Y.L.J. 1 (Jan. 2010).79 Id.80 See, e.g., Harrison v. Chestnut Donuts, Inc., 874 N.Y.S.2d 609 (N.Y. App. Div. 2009); Nande v. JPMorgan Chase & Co., 869 N.Y.S.2d 83 (N.Y. App. Div. 2008); Koester v. N.Y. Blood Center, 866N.Y.S.2d 87 (N.Y. App. Div. 2008).81 See, e.g. N.Y. State Office of Mental Health v. N.Y. State Div. of Human Rights, 861 N.Y.S.2d 223(N.Y. App. Div. 2008); Chestnut Donuts, 874 N.Y.S.2d. at 611; Nande, 869 N.Y.S.2d. at 85.To learn more go to http://www.nymakesworkpay.org13
Disability & Employment Law in New York State:Analysis and RecommendationsWhen the charge of discrimination involves retaliation, whether for resistingdiscriminatory treatment, or for pursuing a complaint under the NYSHRL, the employeemust demonstrate that the employer’s action was motivated primarily by a negativereaction to the employee’s exercise of his or her human rights. 82 Finally, when the formof discrimination is the failure to provide reasonable accommodation, a plaintiff candemonstrate that the employer engaged in discrimination by establishing that theaccommodation was requested, that it was reasonable and/or that the employer refusedor failed to engage in the interactive process.F) Administrative EnforcementThe NYSHRL established a state-wide Division of Human Rights. 83 When an individualexperiences discrimination, s/he has the option to file a written complaint with theDivision in order to begin a state investigation of the complaint. 84 Although the Divisionhas jurisdiction over non-employment cases, employment discrimination casesconstitute the majority (83.4% in 2007-2008) of cases brought before the Division. 85 In2007-2008, 27.6% of the approximately 7000 complaints heard by the Division involveda disability discrimination claim. 86a) Division ProcessComplaints with the Division must be filed within one year of the alleged discriminatorypractice. 87 Once the complaint is filed, whether by the person who has experienced thediscrimination, or by an attorney acting on his or her behalf, the following processbegins.1. Notification and Investigation: The Division will communicate promptly with theperson or employer accused of disability discrimination and with any partieswitnesses, and proceed with an investigation of the charges in the complaint. 882. Dismissal or Proceeding: Within 180 days after the complaint is filed, the statuteindicates that the Division will complete its initial investigation, and decidewhether to dismiss the complaint. The complaint will be dismissed if 1) theDivision does not have jurisdiction to hear it, or 2) the investigation does not findthat an unlawful discriminatory practice has occurred. 89 The Division might nothave jurisdiction to hear a complaint, for instance, if the complainant is a NewYork resident, but the discriminatory act did not take place in the State of New82 N.Y. Exec. Law § 296(1)(e). See also Forrest v. Jewish Guild for the Blind, 786 N.Y.S.2d 382 (2004));Feliciano v. Alpha Sector, Inc., 2002 WL 1492139,12 (S.D.N.Y. 2002).83 Id. § 293.84Id. § 297(1); See New York State Division of Human Rights, How to File a Complaint,http://www.dhr.state.ny.us/how_to_file_a_complaint.html (last visited Feb. 19, 2010).85New York State Division of Human Rights, 2007-2008 Annual Report,http://www.dhr.state.ny.us/pdf/annualreport_2007-08.pdf (last visited May 4, 2010).86 Id.87 N.Y. Exec. Law § 297(5).88 Id. § 297(2)(a).89 Id.14
Page 1 and 2: 1Disability & Employment Law inNew
Page 3 and 4: Table of ContentsDisability & Emplo
Page 5 and 6: Disability & Employment Law in New
Page 15: Disability & Employment Law in New

Disability & Employment Law in New York State - Cornell University

Create successful ePaper yourself

Delete template?

Save as template?