A recent state appellate decision, Cohen v. State of New York (App. Div. 2nd Dept. June 17, 2015), explains an employer’s duties regarding a requested accommodation for a disability under the New York State Human Rights Law. In Cohen, the Appellate Division, Second Department reversed the lower court’s grant of summary judgment to defendant on plaintiff’s disability discrimination claim.
The facts: Plaintiff, a correction officer with the NYS Dept. of Correctional Services, sustained a work-related injury to her hand. Defendant terminated plaintiff on June 17, 2005, the day after she informed them that she needed to undergo hand surgery on August 5, 2005. Plaintiff sued, alleging “that the defendants discriminated against her because of her disability by failing to provide a reasonable accommodation in the form of light duty or additional time for recovery.”
The Supreme Court granted defendants’ motion for summary judgment on her disability discrimination claim under the New York State Human Rights Law, NY Executive Law § 296. The Appellate Division reverses, allowing plaintiff’s case to continue.
Here’s the law:
An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law § 296 “unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation,” and the employer cannot present such a record “if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee’s request” (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 837).
The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested” (9 NYCRR 466.11[j]).
Applying the law to the facts, the court held that defendants were not entitled to summary judgment:
Viewing the evidence in the light most favorable to the nonmoving party, we find that the plaintiff’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation, which DOCS rejected by terminating the plaintiff’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.
Therefore, we conclude that the defendants failed to establish, prima facie, that they engaged in a good faith interactive process that assessed the needs of the plaintiff and the reasonableness of her requested accommodation (see Jacobsen v New York City Health & Hosps. Corp., 22 NY3d at 837).
This decision also could be cited as the epitome of the principle, well-understood by litigators, that the wheels of justice turn slowly. In an odd coincidence, plaintiff obtained this victory – which, by the way, is not an ultimate victory, in that it merely paves the way for her case to be tried (no small feat, but still) – ten years to the day after she was fired.