New York City stands out from the rest of the country for its friendlier laws towards working people (i.e. those whose living depends on salaries and wages they receive in exchange labor). New Yorkers have NYC Commission on Human Rights that stands on guard and protects them against discrimination in employment based, among other things, on disability. If employee who is living in New York City suffers from disability, then his or her employer must provide a reasonable accommodation (i.e. accommodation that does not overly burden the employer) to that person. NYC Hum. R. L. § 8-102(18) (defining “reasonable accommodation”); NYC Hum. R. L. § 8-107(15) (requiring reasonable accommodation to the needs of person with disabilities). But what happens if your family or loved one becomes disabled such that you need to care for him or her? Care requires both time and financial resources. Income becomes more important and time to make that income becomes more scarce. Need to care for your disabled friend may mean tardiness to work, early leaving, and increased absenteeism. Employee with disabled friend frustrates the employer – usually a rational corporate entity – with focus on efficiency and profits. “Naturally,” employer will look for ways to disassociate itself from employee with a disabled friend. If employer finds that it has to provide “reasonable accommodation” to the employee because his family member is disabled, this can become a big obstacle to quest for efficiency and profits.
Outside of New York City, state and federal (American with Disabilities Act) law do not extend “reasonable accommodation” to employees that suffered from adverse employment action by virtue of their association with disabled individuals. But in New York City, New Yorkers have Local Civil Rights Restoration Act of 2005 (Local Law No. 85 of City of New York [2005]) (“The Restoration Act”), which “was meant to ensure that the rights of those who live, work and play in New York City will continue to be protected by the strongest civil rights law in the country, despite recent state and federal court decisions diminishing the impact of groundbreaking civil rights legislation and 50 years of precedent.” The Restoration Act revised New York City Human Rights Law to state that “[t]he provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.” NYC Hum. R. L. § 8-130. The Restoration Act extended the application of Human Rights Law to situations, where State and Federal laws failed to provide remedial action. In interpreting New York City Human Rights Law, New York’s Appellate Division First Department advised to render a very limited deference to its federal counterpart: “it is clear that interpretations of state or federal provisions worded similarly to City HRL provisions may be used as aids in interpretation only to the extent that the counterpart provisions are viewed ‘as a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise’ [citation omitted], and only to the extent that those state or federal law decisions may provide guidance as to the ‘uniquely broad and remedial’ provisions of the local law [citation omitted].” Williams v. New York City Hous. Auth., 61 A.D.3d 62, 66-67 (1st Dep’t 2009).
NYC Hum. R. L. § 8-107(20) states:
Relationship or association. The provisions of this section set forth as unlawful discriminatory practices shall be construed to prohibit such discrimination against a person because of the actual or perceived race, creed, color, national origin, disability, age, sexual orientation or alienage or citizenship status of a person with whom such person has a known relationship or association.
In light of The Restoration Act background, employee with disabled loved one may construe the language as to extend “reasonable accommodation” protections to the him or herself because the law states that “[t]he provisions of this section set forth as unlawful discriminatory practices (e.g. NYC Hum. R. L. § 8-107(15) requiring reasonable accommodation to the needs of person with disabilities) shall be construed to prohibit such discrimination against a person [e.g. employee] because of the actual or perceived … disability … status of a person [e.g. employee’s loved one] with whom such person [employee] has a known relationship or association [e.g. marriage].” Such interpretation is convincing if one compares The Restoration Act to its American with Disabilities Act counterpart under 29 C.F.R. § 1630.8, stating that “[i]t is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.” The federal legislature has taken a rare step to explicitly exclude disability by association protections situation from the federal regulation. In Appendix to Part 1630 – Interpretative Guidance on Title I of the Americans with Disabilities Act federal lawmakers state that “an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability.” See id. Section 1630.8 Relationship or Association With an Individual With a Disability.
Further, NYC Human Rights law extends its protections to persons who were not themselves members of the protected class but who were personally affected by discrimination. NYC Human Rights protections have been construed to apply to situations even where discriminatory impact is indirect. See Morton v. 303 W. 122nd St. H.D.F.C, 2011 N.Y. Misc. LEXIS 3478, 11 (N.Y. Sup. Ct. 2011). It is the will of the New York City council, representing residents of New York City and expressed in The Restoration Act, to be “[i]nsisting that our local law be interpreted broadly and independently will safeguard New Yorkers at a time when federal and state civil rights protections are in jeopardy.” Williams at 67. The Restoration Act mandates “an analysis more stringent than that called for under either title VII or the State Human Rights Law.” Id. at 65.
Therefore, New York City residents whose loved ones had a misfortune of becoming disabled, have expectation to rely on “reasonable accommodation” protections that may be made available to them under NYC Hum. R. L. § 8-107(15) by virtue of NYC Hum. R. L. § 8-107(20). At least, that was the opinion of one New York City resident that came to NYC Commission on Human Rights asking for help. New Yorker’s spouse became disabled, which caused him to be late to work, and even miss few days. Factually disputed issues aside, the commission laid out legal principle that negated principles of The Restoration Act holding:
As a non-disabled employee, NYCHRL does not entitle Complainant to a reasonable accommodation based in his relationship with his disabled wife.
NYC Commission on Human Rights laid out this principle on December 24, 2013. The entity entrusted with protection of The Restoration Act principles put these principles in jeopardy.
This article is based on real life events which culminated in “Determination and Order After Investigation” for Complaint No. M-E-DO-13-1027916-D.
