Since the New York City legislature amended the New York City Human Rights Law in 2005 with the passing of the Restoration Act, New York Courts have liberally applied the Act, following through with the legislature’s intention of providing aggrieved and discriminated employees more access to remedies that had been taken away from them with sweeping Supreme Court decisions. In two parts, I’d like to explore how the Restoration Act has made a marked improvement on the already expansive New York City Human Rights Law.

In the content of disability discrimination – under federal and state law, employees with disabilities are entitled to reasonable accommodation to allow them to perform the essential functions of a job. The employer and employee are encouraged to enter into an interactive process to determine if there is a reasonable accommodation available, but are under no means required to engage in this process. Additionally, an employer is only obligated to offer a reasonable accommodation (one which is not unduly burdensome to the employer) and need not accept an accommodation that is preferred by the individual with a disability.

Beginning with the case of Phillips v. City of New York, the Appellate Division honed in on the city law’s offering more wide-ranging protections than the federal law and state law, going so far as to hold that if said accommodation is one that the employer does not want to implement, the employer will have the burden of proving undue hardship, even if the employer offers an alternative effective accommodation.  This was a great win for employees, since major multi-million/billion dollar corporations would clearly have a tougher time demonstrating that accommodations, which are desperately needed by disabled employees, are cost-prohibitive.

Another great step in the expansion of ant-discrimination laws in New York City came with the loosening of requirements in proving retaliation. An aggrieved employee is still required to demonstrate that they were involved in a protected activity, such as reporting a complaint to Human Resources or filing a claim with the Equal Employment opportunity Commission, but prior to the passage of the Restoration Act, under federal anti-discrimination laws, actionable retaliation required proof of “conduct that has caused a materially adverse impact on the terms and conditions of employment.” New York City decided to do away with that requirement and instead requires: The retaliation or discrimination complained of … need not result in an ultimate action with respect to employment, … or in a materially adverse change in the terms and conditions of employment, … provided, however, that the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity.

With that said, in several landmark cases the Appellate Division indicated that almost any change in duties or place of employment could be considered retaliatory under city law and, therefore, Courts have suggested, this is always a jury question.  Again, the aggrieved employee/victim of retaliation is set to benefit – employers are less likely to get away with subtle retaliatory conduct that would not necessarily qualify as material and adverse under state and federal anti-discrimination laws.

As always, if you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the employment discrimination attorneys at the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

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