In a recent decision, the Appellate Division, Second Department ruled an employer’s alleged failure to engage in the “interactive process” wasn’t an independent element of a disability discrimination claim under the New York State Human Rights Law (NYSHRL). Read on to understand what this decision means for your business and why it is normally always a good idea to engage in the interactive process.
Background
Michael Gibbons, an employee of the New York State Unified System Office of Court Administration (OCA), was forcibly transferred in 2009 to a Brooklyn court assignment following discipline. In 2012, he moved from Queens to Suffolk County, which lengthened his commute to Brooklyn. He then claimed he was unable to commute to Brooklyn from his Suffolk County home because of his worsening Crohn’s disease and liver condition.
In 2014, unable to work at all, Gibbons went on sick leave and applied for a disability retirement and Social Security disability benefits.
In 2015, Gibbons sued New York State alleging that OCA refused to accommodate his request to work in a court closer to his Suffolk home. A jury determined that although he had a qualifying disability and had made a request for a reasonable accommodation, he failed to prove his requested accommodation was “reasonable.”
On appeal, Gibbons argued the trial court judge failed to instruct the jury on OCA’s failure to engage in the interactive process over his request for an accommodation.
No Interactive Process, No Problem?
On appeal, the Second Department agreed with the trial court judge, holding that “a good faith interactive process is not an independent element of the disability discrimination analysis under the [NYSHRL], and an employer may not be held liable based solely on its failure to engage in an interactive process with an employee.”
To the contrary, the Second Department held that “whether the [OCA] engaged in an interactive process was not an issue, as the evidence demonstrated that no reasonable accommodation was possible.” Gibbons v. State of New York, et al., __AD3d__ (2d Dept. 2022).
Best Practices
While this case worked out for New York State, it isn’t clear why a reassignment to a court closer to Gifford’s home wasn’t possible. On the other hand, if he couldn’t work at all, no accommodation—including a reassignment—would be reasonable. The better practice is to engage in the interactive process even if the requested accommodation doesn’t seem to be reasonable or even possible.
By engaging in the interactive process, you aren’t conceding anything. To the contrary, Equal Employment Opportunity Commission (EEOC) guidance makes clear there’s an expectation you will engage in the interactive process. You don’t need to give the employee the requested accommodation or excuse them from performing their essential job functions. Instead, you may offer something else as long as it is reasonable.
Finally, by engaging in the interactive process, you are simultaneously discharging a duty and building the record. If there’s no reasonable accommodation possible, the interactive process can help document “the ask” and your decision-making process. Consult with employment counsel on such thorny accommodation issues.
Paul J. Sweeney is an attorney with Coughlin & Gerhart, LLP, in Binghamton, New York. You can reach him at psweeney@cglawoffices.com.