The "Cooperative Dialogue" Mandate: NYC's Human Rights Law Imposes Strict New Requirements on Employer Responses to Accommodation Requests

In January 2018, the New York City Council amended the New York City Human Rights Law (“NYCHRL”) to address employers’ responses to employee requests for accommodations in connection with their disability, religion, pregnancy, or status as a victim of domestic violence. This amendment will take effect on October 15, 2018, and has significant implications for employers’ ability to assert certain defenses in any subsequent litigation.

Under federal, state and local law, employers are already required to engage in an interactive process with an employee requesting an accommodation related to the employee’s religion, disability or pregnancy (under state and local law, employers must also make reasonable accommodations for victims of domestic violence). The NYCHRL’s amendment brings a new level of detail to that process, provides specific guidance as to how to participate in a “cooperative dialogue” with those protected employees, and imposes significant consequences on employers that fail to act in accordance with that guidance.

What is “Cooperative Dialogue?”

Under the amendment, the “cooperative dialogue” is defined as the process by which an employer and covered employee “engage in good faith in a written or oral dialogue concerning the [employee’s] accommodation needs; potential accommodations that may address the [employee’s] accommodation needs, including alternatives to a requested accommodation; and the difficulties that such potential accommodations may pose for the [employer].”

More Far-Reaching than Current Accommodation Requirements

In contrast to federal and state antidiscrimination laws (under which an employee with a disability must allege and prove that he or she was otherwise qualified for the position in question, with or without accommodation), the NYCHRL imposes upon employers the burden of pleading and proving as an affirmative defense that, even with a reasonable accommodation, an employee with a disability could not “satisfy the essential requisites of the job.” Also, under federal and state law, employers may be relieved of the duty to engage in the interactive process under certain circumstances (although failure to do so is may impact an employer’s ability to defend a subsequent claim of discrimination). For example, employers need not engage in the interactive process where no reasonable accommodation could allow the employee to perform the essential duties of the position. This amendment removes that option for employers subject to the NYCHRL.

Under federal law, an employer need not treat an employee experiencing a normal pregnancy without complications any differently than similarly situated employees who are not pregnant. In contrast, the NYCHRL imposes upon employers the duty to provide reasonable accommodations to pregnant employees (DWT’s client update on that legislation is available here). The amendment provides further detail on employers’ duty in this respect, specifying the steps employers must take in order to engage in the cooperative dialogue with pregnant employees.

New York City Human Rights Law Requirements

Under the NYCHRL as amended:

• It is an unlawful discriminatory practice for an employer to refuse or fail to engage in a cooperative dialogue. The dialogue not only must occur, but it must be completed within a “reasonable time” after the employer is put on notice, constructive or otherwise, that an accommodation may be needed.
• Employers must provide any employee “requesting an accommodation who participated in the cooperative dialogue with a written final determination identifying any accommodation granted or denied.”
• Employees have a private right of action against employers that do not participate in the cooperative dialogue.
• Employers may reach the conclusion that no reasonable accommodation could allow the employee to satisfy the essential requisites of the job only after participating in the cooperative dialogue. Employers who fail to participate in the cooperative dialogue may be precluded from asserting an affirmative defense on those grounds in subsequent litigation.
• An employer’s participation in the cooperative dialogue “is not a defense to a claim of not providing a reasonable accommodation.” In other words, participation in the cooperative dialogue is a necessary but not sufficient condition to complying with applicable antidiscrimination law.

Conclusions and Takeaways

To a certain extent, the amendment codifies what has already been set forth in court opinions applying the NYCHRL. With that said, the amendment is a reminder of best practices when employers receive requests for accommodations from employees on the basis of their religion, disability, pregnancy or status as a victim of domestic violence:

• Mandatory
  • Blanket and/or unilateral denials of accommodation requests will NOT do. A process must be implemented to evaluate requests for accommodations. Employers must make good-faith efforts to identify what, if any, accommodation can be granted – even if those efforts appear to be futile in the first instance.
  • Employers must provide a written determination of all accommodations requested and discussed, and whether those requests were granted or denied. While the amendment specifies that this documentation must be provided only to employees who “participated in the cooperative dialogue,” it is equally important for employers to document their efforts to engage uncooperative employees in this process.

 

• Best practices
  • Front line managers and HR professionals should be trained to be receptive to employee requests for accommodations, as well as to be aware of circumstances that may call for a cooperative dialogue. Training how to initiate the dialogue shortly after becoming aware of and/or noticing that an accommodation may be needed is similarly important. For example, an employer may be put on constructive notice of the need to engage in cooperative dialogue when an employee who has been frequently absent voluntarily discloses that he or she has been taking time off to deal with a medical issue.
  • Employers should invite suggestions from the employee and seriously consider them in good faith, even if the ultimate answer is no.
  • While the amendment imposes additional duties on employers, there is a silver lining. Claims of discrimination on the basis of disability tend to be very fact-intensive, and the now-mandatory documentation of the process of engaging an employee in cooperative dialogue may prove invaluable in the event that an aggrieved employee later claims that he or she was discriminated against.