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To Avoid Charges of Retaliation, Start Talking to Employees

Andrew I. Bart in Board Operations on June 18, 2019

New York City

Governance 6/18
June 18, 2019

New York City co-ops and condos are facing yet another potential avenue of legal liability, thanks to a recent vote by the city council. Earlier this month, the council voted to amend the city's Human Rights Law, making it an unlawful discrimination practice to retaliate against an employee who asks for a reasonable work accommodation on the basis of, among other things, his disability, religion, or medical condition. The measure is awaiting Mayor Bill de Blasio’s signature.  How will it affect your co-op or condo, and how do you best protect yourself? 

First of all, the city’s Human Rights Law applies only to employers with four or more employees. (However, employers of all sizes are covered under the provisions prohibiting sexual and gender-based harassment and discrimination.) The law requires that an employer make a “reasonable accommodation” to an employee’s work schedule or duties to enable them to do a job – unless doing so would create an undue hardship for the employer. 

As of last October, an employer must engage in “cooperative dialogue” with an employee who makes such a request. This is a good-faith dialogue with the employee concerning his or her needs, any potential accommodations, and any difficulties that the proposed accommodations could mean for the employer. At the end of the dialogue, an employer must provide the employee with a written final determination of whether the request was granted or denied. Failure to engage in good faith dialogue or failure to provide a written determination are independent violations of the law, separate from any potential discrimination. 

What’s new here is that an employer can now be found liable for retaliating against an employee for making such a request. To qualify as a claim under the law, the employer's complained-of conduct must have been caused, in part, by retaliatory motives. For example, if a co-op employs a superintendent who asks for a day off for Yom Kippur and the co-op fires him or cuts his hours for making such a request, the co-op may be found liable for retaliating against him under the Human Rights Law. 

This retaliation alone is a violation of the law, and penalties may include compensatory damages, punitive damages, and attorneys’ fees. If a co-op or condo denies a reasonable accommodation to its employee, fails to engage in a “cooperative dialogue,” fails to provide the employee with a written determination, and fires the employee for making the request, then that co-op or condo is potentially liable for each separate violation under the law. 

To protect your co-op or condo, you should fully comply with the law and attempt an accommodation that meets both your needs and an employee’s needs, while documenting the dialogue and providing the employee with a written explanation of your decision. But remember: that the accommodation is reasonable only if it does not cause you undue hardship. Factors that contribute to undue hardship include, but are not limited to, financial costs, the impact on your operations, and the employee’s duties and responsibilities

For example, if a doorman requests that he be allowed to sit down during his shift due to a medical condition, that will open up a dialogue. Perhaps a reasonable solution will be that he be allowed to sit for 20 minutes every hour immediately inside the building’s front doorway. You must document the dialogue and give him a written determination of the decision. Under no circumstances should a co-op or condo board fire or retaliate against an employee – by, for instance, cutting hours or benefits – for making the request for an accommodation.

In short, tread lightly when it comes to taking any negative action towards an employee. And always consult an attorney with any questions or concerns you may have before you do so. 

Andrew I. Bart is an attorney at the law firm of Borah Goldstein Altschuler Nahins & Goidel.

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