The recent Hirsch v. New York State Division of Human Rights employment discrimination case held that rigid state civil service hearing requirements prescribed by civil service law are not absolute. In a unanimous 5-0 decision, the New York State Appellate Court, Fourth Division, found the determination of essential job functions are subject to court review, and employers must engage in a meaningful, interactive process to explore reasonable accommodations for disabled applicants. Furthermore, the court’s reasoning may be persuasive in other jurisdictions because the New York State Human Rights Law (“NYSHRL”) mirrors the Americans with Disabilities Act (“ADA”), and the decision cites Federal ADA case law. My colleague Andrew Rozynski of Eisenberg and Baum represented the plaintiff.
Factual Background
Dacia Hirsch is a deaf person who had applied for employment with the New York State Office for People with Developmental Disabilities (“OPWDD”). She passed the written exam, performed well in the interview (wherein she used an interpreter), and received a conditional offer. However, after she failed the hearing test portion of a physical exam, the offer was rescinded. Ms. Hirsh filed a complaint pursuant to the NYSHRL alleging OPWDD discriminated against her by failing to first offer a reasonable accommodation. The New York State Division of Human Rights (“DHR”) dismissed the complaint for failure to establish a prima facie case, and Ms. Hirsch appealed.
Appellate Court Findings of Law
The court found that to bring a case for discrimination Ms. Hirsch must establish (a) she was a person with a disability, (b) the employer had notice of her disability, (c) with a reasonable accommodation she could perform the essential functions of the job, and (d) the employer refused to make the accommodation. In this case, a key issue was whether Ms. Hirsch could perform the essential job functions. Citing the U.S. Court of Appeals 2nd Circuit in Price v City of New York, 264 Fed. Appx 66, 68-69, the court held determining whether a job function is essential depends on multiple factors, “including the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring the plaintiff to perform the function, mention of the function in any collective bargaining agreement, the work experience of past employees in the job, and the work experience of current employees in similar jobs.” The DHR failed to engage in that analysis, and merely adopted the conclusory determination that the Department of Civil Service (“DCS”) standards are based on the essential job functions. Although the DCS standards should be given deference in determining essential job functions, no one factor is dispositive.
Based on Ms. Hirsch’s similar work experience, that she was able to perform with an interpreter and that providing an interpreter was included in OPWDD’s policy, the court concluded she met her prima facie burden. Although the DHR concluded Ms. Hirsch failed to specifically request an accommodation before instituting litigation, the Appellate Court ruled if the need for an accommodation is known, or requested, the employer is required to engage in an interactive dialog regarding possible accommodations. After the prima facie case was established, the burden shifted to the employer to provide evidence that it chose not to hire Ms. Hirsch for a legitimate, nondiscriminatory reason.
Relief
As the DHR adopted the Administrative Law Judge’s erroneous determination that Ms. Hirsch failed to establish a prima facie case, there was no determination whether OPWDD rebutted that presumption of discrimination. Accordingly, the DHR ruling was annulled and that matter was remitted for a new determination.
Commentary
This decision reinforces the legal protections for individuals with disabilities, ensuring that hiring practices focus on individualized assessments rather than rigid, exclusionary standards. It clarifies civil service standards are not absolute, a formal request for an accommodation may not be necessary, employers must engage in a meaningful, interactive accommodation process and blanket exclusions are discriminatory.
As noted above, this decision has national implications because the NYSHRL incorporates the ADA, and the opinion cites federal case law. Furthermore, a similar analysis may be useful for related issues, such as ADA Title III access to health care. For example, a medical board’s good practice standards might require an MRI before a procedure, but for patients with sound sensitivity the anxiety and noise from MRIs can be cause the condition to get worse, permanently. If a doctor rigidly follows the standards it may result in harm to the patient, or a refusal to treat the patient altogether. Following the court’s reasoning, the issue of whether a recommended test is an essential element, such that substituting another test would fundamentally alter the nature of the service, should be an individualized assessment under the facts and circumstances of each patient.
This decision also serves as a reminder for both employers and businesses open to the public to proactively engage in interactive accommodation discussions in order to eliminate barriers to equal employment and access to goods and services.
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Disclaimer: This content is provided for general informational purposes only, and may not reflect the current law in all jurisdictions. No information contained in this post should be construed as legal advice nor is it intended to be a substitute for legal counsel on any subject matter. Readers should consult their own advisor for legal or other advice.