City Law Ranks First For Disability Claims

Over the years, I have emphasized one lesson above all others in this column: To have a viable legal claim, you cannot merely allege you were "wronged." Rather, you must prove that your employer actually violated the law. I have also repeatedly explained the various differences among the laws prohibiting workplace discrimination.

Today's column highlights Phillips v. City of New York, a New York State appellate court decision issued last month. Phillips continues a recent trend in which courts are now beginning to accept that Federal, state and city anti-discrimination laws are not identical and thus should not be interpreted in "lockstep." The decision also underscores that the New York City Human Rights Law ("HRL") is the most liberal and employee-friendly of the anti-discrimination laws available to employees working in the city.

For civil servants, Phillips is also notable because the city was prevented from using its "time and leave" rules as a defense for failing to provide a reasonable accommodation under state and city laws.

Extended Leave Requested

In Phillips, the plaintiff served in a non-competitive title for the Department of Homeless Services ("DHS"). After being diagnosed with cancer, plaintiff was granted a 12-week leave of absence under the Family and Medical Leave Act ("FMLA"). She then requested, and was denied, an additional one-year medical leave. Relying on the city's Career & Salary Plan, DHS claimed that plaintiff, because of her non-competitive title, was ineligible for additional medical leave.

When plaintiff did not return to work after her 12-week FMLA leave expired, DHS terminated her employment. In response, plaintiff filed a lawsuit claiming that DHS failed to "reasonably accommodate" her extended leave request. Plaintiff also claimed that her employment was wrongfully terminated based on her disability.

The lower court dismissed plaintiff's complaint, finding that her cancer condition failed to satisfy the statutory definition of "disability." The lower court also concluded that plaintiff failed to demonstrate that she: (a) could have performed the "essential functions" of her job if she had been given an extended leave; and (b) was denied an accommodation for any reason other than her non-competitive title.

Interactive Process Needed

On appeal, the appellate court sided with plaintiff and reinstated her complaint. The appellate court agreed that the lower court, by relying on the city's Career and Salary Plan, failed to actually consider the "reasonableness" of plaintiff 's request for an accommodation. Specifically, it found that DHS failed to engage in any kind of "individualized inquiry" regarding plaintiff 's requested accom- modation and that such inquiry is "deeply embedded in the fabric of disability rights law."

In a key passage, the appellate court acknowledged the differences among the anti-discrimination laws: "The State HRL provides protections broader than the Americans with Disabilities Act (ADA); and the city law is broader still." Addressing DHS's steadfast reliance on the city's Career and Salary Plan for denying plaintiff's reasonable accommodation request, the court ruled: "engagement in an interactive process is itself an accommodation, and the failure to so engage is an unlawful failure to make a reasonable accommodation."

In a further rebuke to the city, the appellate court added: "An employer simply cannot abrogate the requirements of the HRLs by carving out a category of employees who are not subject to an interactive process."

City Law More Liberal

Finally, the appellate court offered specific examples of how the city Human Rights Law is the most employee friendly of the anti-discrimination statutes. Under city law, the court observed that there cannot be an entire category of accommodations (e.g. extended medical leaves of absence) which are deemed unreasonable. Rather, accommodations are only unreasonable if they cause an "undue hardship" for the employer.

The appellate court further found that, under city law, the employer must prove that a reasonable accommodation creates an undue hardship. The employer also carries the burden of showing that an employee, if given the reasonable accommodation sought, would be unable to "satisfy the essential requisites of the job." This is a far cry from the more-restrictive Federal law and another reason to embrace and rely on the city's anti-discrimination law in matters related to disability discrimination.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.