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City's Failure During Accommodation Process Means Disability Bias Claims Must Go to Trial

BNA Employment Discrimination Report—By Patrick Dorrian

A former health facilities planner for the city of New York may take to trial state and city law claims that he was denied reasonable accommodations for his occupational lung disease, the New York Court of Appeals ruled March 27 (Jacobsen v. N.Y.C. Health & Hosps. Corp., 2014 BL 83161, N.Y., No. 34, 3/27/14).

Reviving William Jacobsen's claims against the New York City Health and Hospitals Corp. (HHC), the state's highest court held that to avoid trial on a failure-to-accommodate claim under the New York State Human Rights Act or the New York City Human Rights Act, an employer must show it engaged in an “individualized” interactive process with a worker who proposes an accommodation for his disability.

Judge Sheila Abdus-Salaam added that under the NYSHRL, the employee still bears the burden of proving at trial that a reasonable accommodation existed. But under the more liberal city law, she said, the burden remains on the employer to prove that no reasonable accommodation was available.

The decision reverses two lower court rulings based on conflicting evidence as to whether the HHC could have reasonably accommodated Jacobsen by reassigning him from primarily field work to its central office in Manhattan and by providing him with a “fit tested” respirator rather than a dust mask of a type that might be found “in any hardware store.”

However, an employer's interactive process obligations are not an independent element of a disability discrimination claim under either state or city law, the court ruled. Thus, it found that an employer's failure to engage in the required efforts to accommodate a disabled worker will not, by itself, entitle a plaintiff to judgment as a matter of law.

Rule Better for Employees and Employers?

Paul W. Mollica of Outten & Golden, who represents employees, told Bloomberg BNA March 28 that the interactive process rules set by the court are clearly better for employees and “should also be better for employers.”

While “a boon to employees,” he said, “the chief virtue of the opinion” is that it will be “easy to apply” and should help defense lawyers counsel their New York clients on their obligations under state and city law.

The standard under federal law is different, Mollica said, and employers still have a “fighting chance” of winning summary judgment under federal law even when they failed to fulfill their interactive process obligations. He predicted that will start to change under the 2008 ADA Amendments Act, however, which altered how federal claims are to be analyzed by the federal courts.

Allan S. Bloom of Proskauer Rose LLP, who represents employers, told Bloomberg BNA March 31 that “[t]he bottom line [in Jacobsen] is that an employer that does not engage in an interactive process with an employee—and carefully and thoughtfully document that process—is likely to go to trial on a failure to accommodate claim in many cases.”

“I think the lesson from Jacobsen is that that process and documentation should include reference to, and consideration of, the employee's proposed accommodations (even if those proposed accommodations are rejected),” he said.

Assigned More Site Work After Diagnosis

Jacobsen was hired by the HHC in 1979 and was promoted to health facilities planner three years later. He worked primarily out of the HHC's Manhattan office, but made site visits to his assigned projects once or twice a week.

In June 2005, he was diagnosed with a form of pulmonary dysfunction. That August, he was reassigned to the HHC's Queens hospital network and became responsible for projects involving more extensive renovations and asbestos abatement. The reassignment also required him to visit construction sites more frequently.

Jacobsen was diagnosed in September 2005 with pneumoconiosis, an occupational lung disease caused by repeated and prolonged inhalation of asbestos or other dust particles. He was out on medical leave until May 2006, and during that time his doctor cautioned that Jacobsen should not be further exposed to any type of environmental dust or “be present at any construction site” when he returned to work.

Despite his doctor's note, Jacobsen was sent back to the Queens assignment upon his return and he remained there even though he and his union complained to HHC management about the adverse effects the assignment was having on his health. They also repeatedly sought accommodation for his condition.

Specifically, Jacobsen asked to be reassigned to the Manhattan office, where he wouldn't have to visit project sites so frequently, and to be furnished with a respirator designed to filter the particulates present at asbestos abatement projects and “fit tested by an industrial hygienist.” However, he wasn't granted relocation and was instead furnished with a commonly available dust mask that he didn't always wear because it impeded his ability to communicate.

He filed a disability discrimination charge with the New York State Division of Human Rights in June 2006. The HHC placed him on unpaid leave two days later.

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When Jacobsen's unpaid medical leave expired in March 2007, HHC fired him.

Lower Courts Had Nixed Claims

Jacobsen sued in 2008, but a state trial court granted summary judgment to the HHC on his NYSHRL and NYCHRL claims, and an intermediate state appeals court affirmed.

Reversing and remanding, the state's highest court unanimously ruled that Jacobsen raised fact issues warranting trial regarding the reasonableness of his proposed accommodations and the HHC's failure to properly consider his proposals.

Abdus-Salaam cited evidence that Jacobsen worked at the Manhattan central office “for decades doing only limited on-site work” and that he might have been able to continue working there despite his disability. There also was evidence that if Jacobsen had received a fit-tested respirator when he first requested one upon his return to work in 2006, it would have reduced his dust exposure and might have allowed him to continue working at construction sites on a limited basis, the judge said.

Employers' interactive process efforts are a factor to be considered in determining whether an accommodation proposed by an employee is reasonable, the court said.

“Without having participated in that process in response to the employee's request, the employer cannot prevent” a worker from bringing a failure-to-accommodate claim to trial under New York state or city law, Abdus-Salaam said.

“The statute prizes reasonableness, and nothing can be more reasonable than an open-minded discussion resulting in a viable compromise,” she wrote.

Ruling ‘Puts Real Teeth' Into Employer's Duty

New York employers will be clearer now on the risk of liability for failing to discuss potential accommodations with disabled workers, Mollica said.

He said the ruling “puts real teeth” into the individualized accommodation process called for under the NYSHRL and the NYCHRL, and provides New York employers with additional incentive to take all accommodation requests seriously.

“Employers can't just dismiss such requests out of hand” even if they think a particular proposal is unreasonable, he said.

Mollica said the decision could draw more disability bias plaintiffs away from federal court and into state or city court, because cases under the Americans with Disabilities Act traditionally have skipped over the interactive process issue and focused more on the plaintiff's ability to prove a qualifying disability.

That has begun to change as a result of the ADAAA, he said, which specifically directs courts to focus on whether applicants and employees could have been accommodated and not whether they meet the statutory definition of having a disability.

Mollica said he “suspects we'll start to see more federal cases” on employers' interactive process obligations under the ADAAA, and that federal and New York law will align more closely over time.

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