Introduction

Employers may experience increased difficulty obtaining dismissal of disability discrimination claims on summary judgment as courts apply greater scrutiny to employers' decisions to deny employees' requested accommodations. Accordingly, employers are encouraged to focus their attention on proactively identifying the "essential functions" of specific positions and re-examining the "interactive process" by which they evaluate accommodation requests in order to avoid and defend against future claims brought under the Americans with Disabilities Act, the New York State Human Rights Law and the New York City Human Rights Law.

Decisions

Traditionally, New York state and federal courts have afforded deference to an employer's business judgement as to what functions of an employee's position are "essential" – that is, those functions which an employee must be able to perform, with or without a reasonable accommodation, in order to state a claim.(1) Recent decisions, however, suggest that courts are beginning to curtail this deference.(2) In Ford Motor Co the court denied an employer's motion for summary judgment, ruling that physical presence in the workplace is not necessarily an "essential" job function despite the employer's insistence to the contrary, and suggesting that telecommuting may be considered a reasonable accommodation. The Sixth Circuit has stepped back from the traditional deference accorded to the business judgement of employers - a trend that, if extended, will make employers' efforts to obtain summary judgment more difficult. The decision in Ford Motor Co has been withdrawn pending an en banc review by the full Sixth Circuit; it can be anticipated that the en banc decision will be pivotal to any analysis of telecommuting as a reasonable accommodation.

Moreover, New York courts appear to be applying greater scrutiny in analysing the extent to which an employer engages with an employee in an "interactive process", which is required once an employee requests an accommodation.(3) The New York Court of Appeals recently went so far as to hold that summary judgment is precluded under the New York State Human Rights Law unless an employer can show that it "engaged in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the [accommodation] requested". The implications of Jacobsen are potentially far reaching and may result in fewer dismissals of reasonable accommodation claims for employers on summary judgment, increasing the time and expense associated with litigation.

Steps for employers

In the wake of decisions such as Ford and Jacobsen, employers are encouraged to take the following steps to avoid and defend against disability discrimination claims and increase the likelihood of having such claims dismissed at the summary judgment stage:

  • Evaluate the process – revisit the process by which requests for accommodations are reviewed and, if not already in place, implement a formal process for considering accommodations. Be sure to consider both the needs of the individual employee and the reasonableness of the accommodation requested.
  • Document the process in writing – document the steps taken during the interactive process and the ultimate outcome in writing; this documentation should demonstrate that the employer considered both the employee's individualised needs and the reasonableness of the request and provide the rationale for granting or denying the accommodation. Communicate this information in writing to the employee requesting the accommodation.
  • Update job descriptions and employment policies to reflect essential job functions – in Ford Motor Co the court identified job descriptions as another piece of evidence on which it could rely to evaluate the essential functions of an employee's job. Accordingly, employers should consider updating job descriptions and employment policies to clearly identify essential job functions and to reflect the rationale behind the identification of such functions as essential.
  • Consider non-traditional accommodations (eg, telecommuting) – the panel's decision in Ford Motor Co suggests that courts are warming to the idea of telecommuting as a reasonable accommodation, particularly as technology continues to develop at a rapid pace. Accordingly, employers are encouraged not to summarily deny requests for telecommuting or other unconventional accommodations, but rather to evaluate such requests in the context of an individual's needs and specific job functions, and engage in a well-documented interactive process prior to granting or denying such a request.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com). The Kramer Levin Naftalis & Frankel LLP website can be accessed at www.kramerlevin.com.

Endnotes

(1) 42 USC § 12111(8) & 12112; NY Exec Law § 292(21).

(2) See EEOC v Ford Motor Co, 752 F 3d 634, 642 (6th Cir 2014), vacated pending en banc review (6th Cir August 29 2014):

"[O]ur inquiry does not end simply because Ford has expressed the business judgment that face-to-face interaction is desirable [We] should not abdicate our responsibility as a court... Rather, we should carefully consider all of the relevant factors, of which the employer's business judgment is only one."

(3) See Jacobsen v New York City Health and Hospitals Corp, 22 NY 3d 824, 836 (2014).

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