BILL NUMBER: S9860
SPONSOR: FAHY
 
TITLE OF BILL:
An act to amend the executive law, in relation to requiring employment
entities to engage in cooperative dialogue with certain persons regard-
ing reasonable accommodations
 
PURPOSE:
To clarify that the New York State Human Rights Law (NYSHRL) requires
employers and employees to engage in good faith discussions about an
employee's work-related limitations related to a disability, pregnancy-
related condition, religious practice, or status as a victim of domestic
violence to determine if reasonable accommodation may be possible.
 
SUMMARY OF PROVISIONS:
Section 1 amends subdivision 21-e of section 292 of the executive law by
amending the definition of "reasonable accommodation" to clarify that
the employment entity bears the burden of proving undue hardship. Adds a
new definition of "cooperative dialogue", establishing it as a process
by which an employer and employee engage in a good faith dialogue
concerning requested accommodation needs, potential accommodations, and
the difficulties that potential accommodations may pose to the employer.
Adds a definition of "employment entity" to include an employer, employ-
ment agency, labor organization, licensing agency or employee or agent
thereof.
Section 2 amends subdivision 3 of section 296 of the executive law to
expand protections to include conditions the employer should reasonably
have known about. Establishes that failure to engage in a cooperative
dialogue regarding reasonable accommodation constitutes an unlawful
discriminatory practice.
Section 3 amends subdivision 10 of section 296 of the executive law to
make it an unlawful discriminatory practice for an employment entity to
refuse or fail to engage in a cooperative dialogue in covered employ-
ment-related contexts.
Section 4 amends subdivision 22 of section 296 of the executive law to
similarly require cooperative dialogue in additional covered contexts
and makes failure to do so an unlawful discriminatory practice.
Section 5 sets the effective date.
 
JUSTIFICATION:
The New York State Human Rights Law (NYSHRL) is intended to be construed
liberally to accomplish its purposes. One purpose is to integrate
employees who may need workplace accommodations, unless doing so would
pose an undue hardship for the employer.
Many individuals - including domestic violence survivors, those who have
disabilities or pregnancy-related conditions, and those who observe
certain religious practices - can perform their jobs without any accom-
modations. For others, workplace barriers often keep them from fully
performing their job duties that they could perform with some form of
accommodation. These barriers may include physical obstacles (such as
inaccessible facilities or equipment) or rules (such as those concerning
when work is performed, when breaks are taken, or how essential or
marginal functions are performed). Accommodations are reasonable when
they remove workplace barriers for these individuals without causing an
undue hardship for their employers.
This bill clarifies that the discovery of a potential reasonable accom-
modation is best determined through a cooperative dialogue, defined as
communications about the employee's challenges, exploring potential
accommodations to overcome such challenges, difficulties certain
proposed accommodations might impose on the employer, and ultimately
working together to find effective solutions that enable the employee to
perform the core duties of their job.
Not all cooperative dialogues will result in a reasonable accommodation.
Currently, however, an employer's failure to engage in a cooperative
dialogue about potential reasonable accommodations is not, by itself,
considered unlawful. Rather, the employee must go above and beyond to
prove that the employer could have accommodated the employee, even where
the employer has refused to discuss potential accommodations. For exam-
ple, in Pimentel v. Citibank, N.A., the worker's case was dismissed
because they could not prove a reasonable accommodation existed, even
though the employer "did absolutely nothing to attempt to ascertain
whether there were any available positions that fit her varied experi-
ence and qualifications." 29 A.D.3d 141 (1st Dept. 2006).
This bill levels the playing field by making an employer's failure to
engage in a cooperative dialogue an unlawful discriminatory practice.
It does not mandate a guaranteed outcome or require employers to grant
unreasonable accommodations. Moreover, this bill will bring state law in
line with the cooperative dialogue requirement of the New York City
Human Rights Law.
By clarifying the law, the Legislature will provide guidance to employ-
ers and employees alike about the process for identifying possible
reasonable accommodations. This bill will decrease the likelihood of
costly litigation and help integrate individuals into the workplace
rather than the unemployment line.
 
LEGISLATIVE HISTORY:
New bill.
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect immediately.

Statutes affected:
S9860: 292 executive law, 292(21-e) executive law, 296 executive law, 296(3) executive law, 296(10) executive law, 296(22) executive law