The First Department Clarifies The Interactive Process Under State and City Law

In a June 18, 2020 unanimous decision in the case of Hosking v. Memorial Sloan-Kettering Cancer Ctr, 2020 NY Slip Op 03484, written by Justice Acosta, the Appellate Division, First Department, reversed a decision issued by Bronx County Judge Lizbeth Gonzålez which granted defendant’s motion for summary judgment dismissing the complaint of Jeanette Martinez.  At issue on appeal was whether Memorial Sloan-Kettering Cancer Center, the defendant employer, properly engaged in a good faith dialogue with Martinez, a disabled employee, to ascertain the possibility of a reasonable accommodation.  Martinez was hired to work as a General Services Representative (GSR), performing concierge type functions within the lobby area of the hospital.  As a result of multiple disabilities, Martinez had requested and was granted a job accommodation which restricted many of the job functions she was required to perform.

In 2012, the hospital engaged in a re-structuring of the GSR position. Because of her disabling medical conditions, Martinez informed the hospital that she was unable to perform most of the tasks associated with the new GSR position.  Martinez asked the hospital to permit her to continue with her previous work assignments. The hospital determined it would be unable to accommodate her because it would adversely impact the re-structuring and a manager’s ability to prioritize work assignments.  Thereafter, on December 8, 2012, Martinez was terminated, after not being able to find another job within the hospital.  Her loss of employment resulted in her filing a civil action against the hospital for wrongful termination based upon age and disability in violation of both state and city law.

On appeal, the hospital argued it was entitled to dismissal of the complaint because Martinez was unable to perform the essential functions of the GSR position. Martinez cross-appealed, contending issues of fact made summary judgment dismissal unavailable to the hospital.

Disability Is Defined Differently Under City and State Law

The First Department noted the difference in the definition of “disability” in the state and city statutes at issue. The state law limits the term to “disabilities which, upon the provision of reasonable accommodation, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation . . . held.” (Executive Law Section 292 [21]). Accordingly, “reasonable accommodation” means action which permits an employee or prospective employee with a disability “to perform in a reasonable manner the activities involved in the job or occupation sought or held and included, but are not limited to, provision of an accessible work site, acquisition or modification of equipment . . .[or] job restructuring and modified work schedules,” with the understanding that the accommodation does “not impose an undue hardship on the business, program or enterprise of the entity from which action is requested” (Executive Law Section 292 [21-e]).

As noted by the First Department, city law, in contrast, does not include “reasonable accommodation” or the ability to perform a job in a reasonable manner within the definition of disability.  “Rather the city law defines disability solely in terms of impairments” (quoting Romanello v. Intesa Sanpaolp, S.p.A., 22 NY3d 881, 885 [2013]). The city law shifts the burden to the employer to show as an affirmative defense that the aggrieved person could not, with a reasonable accommodation, satisfy the essential job functions.  Like state law, the reasonable accommodation should not cause undue hardship for the employer.

Reasonable Accommodation Requires A Good Faith Interactive Process

Under both state and city law, the First Department makes clear, the evaluation of a reasonable accommodation requires a “good faith interactive process,” clarifying the individual needs of the employee and the business, and the appropriate accommodation.  Unlike the state law which requires “at least some deliberation” about the viability of an accommodation, the city law requires a more rigorous process.

Finding issues of fact as to whether the hospital engaged Martinez in a good faith interactive process, the First Department reversed the dismissal of the claim.  Although the hospital claimed it did in fact engage in an interactive process, deposition testimony did not support that argument.  The appellate court determined that a “unilateral employer decision cloaked by business judgment” was not a cooperative problem-solving process required by the law.

Additionally, the hospital claimed it was not obligated to restructure the position or modify the work schedule to accommodate Martinez because it would be inconsistent with the newly re-structured GSR position.  The First Department noted that acceptance of this proposition would undermine the very scope and purpose of the interactive process by making it superfluous. Also, it would incentivize employers to create business models that can be used as a “subterfuge to discriminate” against disabled employees and circumvent the law.

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