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Title 8, NYC Admin Code
AUTHORRichard Klein, Partner, Romer Debbas.
PAGE #p. 48
Waiting until after the interview to reject an application opens the board to charges of discrimination.
Earlier this year, the president of a co-op board that I represent telephoned and told me that the night before, the board had done an interview on a purchase application that was pending. It had reviewed the finances and the admissions package, and everything looked okay.
The president said that the potential new shareholder showed up for the interview in a wheelchair. During the interview, this proposed shareholder said that he found that he had some trouble getting into the apartment because the doorway was a little bit narrow. He thought that perhaps the doorway would need to be widened to accommodate his wheelchair.
So the president called me the next day and said, “What do we do? Who’s going to be responsible for paying for this repair if we need to do it?”
Like most proprietary leases, the one for this building was written in the 1980s and said that the co-op was responsible for any repairs or maintenance to a door or its frame. If the door needed to be widened, that would be at the co-op’s expense, not at the shareholder’s.
Based on that possibility, the board members were asking me if it would be okay to reject this applicant because they didn’t want to pay for widening the doorway, nor did they want to set a precedent for doing these kinds of repairs. So I quickly reminded the president that here in New York City we have the Human Rights Law, which exists to protect certain classes of individuals, including people with disabilities. To reject the applicant at this point could open up the board to claims of discrimination because it would be rejecting this applicant based on his disability.
I told the board that it should probably accept this proposed purchaser, assuming everything else was okay. New York City law states that, in this case, a board needs to make a reasonable accommodation for a disabled person. The board cannot reject a purchaser because he is disabled. It will be probably be hit with a discrimination complaint.
New York City and New York State are both very keen on enforcing their human rights laws. So you don’t want to get into that situation. As I explained to the board president, if we were to deny this person and he did file a complaint, it could result in extensive litigation that could open up the board to a lot of liability. It’s a litigation that would have to be disclosed in the building’s financial statements, and it could hurt the value of the apartments. So it wasn’t really a place we wanted to go.
I try to be proactive with my boards by sending emails throughout the year about what’s going on with the New York City Human Rights Law and other similar laws, like the Americans With Disabilities Act. The goal is to let them know what they need to do – or not do – when dealing with these kinds of situations.
I always advise my boards that if they have any issue when reviewing a board package, they should make the rejection at that time. Because it’s very hard for people to say they were discriminated against if they haven’t had the interview and you really haven’t seen who they are yet.
If the person is disabled or has a different ethnicity or familial status or anything else that’s protected under the various human rights laws and then you reject him or her after the interview, you could be subject to a claim, even if you have legitimate reasons for rejecting the applicant. Consequently, I always say scrutinize the package, and if you get any inkling that there’s some issue, reject the applicant at that point – and don’t hold an interview. If the rejection is really based on a concern that the applicant is in one of the protected classes, don’t do it. It’s not going to be good for the building.
Richard Klein is a partner at Romer Debbas.