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New York City Appeals Court Confirms That Employers Must Engage in Rigorous Interactive Process

When an employee faces challenges due to a disability, the law requires that the employer engage in an “interactive process” to find a way to accommodate that disability. The First Department, an appellate court located in Manhattan, just issued a strong decision describing how seriously employers must take the interactive process.

In Hosking v. Memorial Sloan-Kettering Cancer Center, 2020 N.Y. App. Div. LEXIS 3557 (1st Dept. June 18, 2020), the plaintiff worked as a concierge at a hospital. After 10 years of employment, she was diagnosed with a disability that prevented her from fulfilling many of those responsibilities. At the same time, the hospital changed its business model so that Plaintiff would have to perform additional roles, many of which she was medically unable to do. Plaintiff asked to work just as a concierge, but that request was denied and Plaintiff was ultimately terminated.

While the lower court had dismissed the case by granting summary judgment, the appellate court reversed. The court found that there were questions about whether the hospital actually engaged in a good faith effort to accommodate the plaintiff.

The court rejected the hospital’s “unilateral determinations and self-serving statements” that the plaintiff could not perform within its new model, without undertaking “the fact-specific individualized inquiry required by the State [Human Rights Law].” The court cautioned that the interactive process cannot be avoided by “a unilateral employer decision cloaked by business judgment.”

The court also declared that while there is no guarantee that the employer will be able to accommodate the plaintiff, a company “cannot jump to that ultimate conclusion without first engaging in a good faith interactive process with plaintiff.” The employer must engage in a good faith interactive process to see if the employee can be accommodated. The court also noted the inconsistent testimony of the hospital’s employees regarding plaintiff’s request.

As we struggle to make the workplace more diverse and inclusive, Hosking reminds employers that employees or candidates with disabilities must each be considered in their own right, with their own abilities and limitations carefully scrutinized. Employers cannot simply restructure their workplaces in a way that excludes those with disabilities.

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