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Bill de Blasio, Mayor | Carmelyn P. Malalis, Commissioner/Chair
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2
Table of Contents
Introduction 6
Violations of the NYCHRL:
Prohibitions on Disability Discrimination 13
Disparate Treatment 13
1. Treating People Less Well Because of Disability 15
2. Harassment 19
3. Discriminatory Policies 20
4. Actions Based on Stereotypes and Assumptions 23
Neutral Policies That Have a
Discriminatory Impact 24
Associational Discrimination 30
1. Associational Disparate Treatment Claims 30
2. Associational Reasonable Accommodations Claims 32
Postings, Applications, and
Selection Processes 35
Employment 35
1. Job Postings and Advertisements 35
2. Applications 36
3. Interviews 39
4. Selection Processes After Interviews 40
5. Procedures Related to Current Employees 42
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Housing 45
1. Postings 45
2. Applications and Interviews 46
Public Accommodations 47
1. Postings 47
2. Applications and Interviews 48
Reasonable Accommodations in Employment,
Housing, and Public Accommodations Based
on Disability 50
Process for Requesting or Offering
Reasonable Accommodations 51
1. Initiating a Cooperative Dialogue 52
2. Engaging in a Cooperative Dialogue 55
3. Concluding the Cooperative Dialogue 64
4. Cooperative Dialogue Sample Scenarios 66
Failure to Engage in the Cooperative
Dialogue in Employment, Housing, and
Public Accommodations 73
Failure to Provide Reasonable Accommodations
for Disabilities in Employment, Housing, and
Public Accommodations 74
Defenses to a Claim of Failure to
Provide Reasonable Accommodations for
Covered Entities 75
1. Undue Hardship 76
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2. Essential Requisites of the Job 83
3. Requested Accommodation Implicates Other
City, State, or Federal Law 86
Types of Accommodations Based on
Disability 87
Employment 87
1. Hiring 88
2. Physical Space, Assistants, Technology, and
Service Animals 89
3. Work Restructuring or Reassignment 91
4. Leave 92
Housing 94
1. Physical Space and Technology 95
2. Policies and Practices 98
3. Service Animals and Emotional Support Animals 99
4. Relocation 102
Public Accommodations 103
1. Physical Space and Technology 103
2. Policies and Practices 104
Retaliation 106
Discriminatory Harassment 109
Appendices 111
Cooperative Dialogue 112
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Sample Reasonable Accommodation Request
Form (Employment) 114
Sample Grant or Denial of Reasonable
Accommodation Request Form (Employment) 120
Sample Letter to Employee on Leave 122
Service Animal One-Pager 124
Sample Sign Notifying Public How to Request
Accommodation in Public Accommodations 127
Sample Service Animals Welcome Sign 128
Sample Reasonable Accommodation Policy 129
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NYC Commission on Human Rights
Legal Enforcement Guidance on
Discrimination on the Basis of
Disability
Introduction
In New York City, approximately one million residents, or 11.2 percent
of the City’s population, live with a disability.
1
Many of us will have at
least one disability during our lifetimes and count people living with
disabilities among our neighbors, colleagues, family members, and
friends.
Fostering environments of inclusivity and accessibility allow people
with disabilities to be full participants in New York City life, engage
with their communities, access fundamental services, enter and
remain in the workforce, and meet their most basic and critical needs.
Our city is at its best when it draws on the abilities of all its residents.
Providing reasonable accommodations and creating accessible
spaces also benefits all New Yorkers, including business owners,
1
Mayor’s Office for People with Disabilities, AccessibleNYC: An
Annual Report on the State of People with Disabilities Living in New
York City (2017),
http://www1.nyc.gov/assets/mopd/downloads/pdf/accessiblenyc_2017
.pdf.
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residents, and employees, because providing equal access for people
with disabilities is an investment that will yield long-lasting economic
and societal gains. New York City is dedicated to advancing
accessibility and giving all New Yorkers a chance to thrive. The New
York City Commission on Human Rights is committed to ensuring that
New Yorkers with disabilities are able to live, work, and enjoy all that
New York City has to offer, without discrimination.
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The New York City Human Rights Law (“NYCHRL”) prohibits
discrimination by most employers,
2
housing providers,
3
and public
2
The NYCHRL prohibits unlawful discriminatory practices in
employment and covers entities including employers, labor
organizations, employment agencies, joint labor-management
committee controlling apprentice training programs, or any employee
or agent thereof. N.Y.C. Admin. Code § 8-107(1). Under the
NYCHRL:
The term “employer” does not include any employer with fewer
than four persons in his or her employ ... [N]atural persons
employed as independent contractors to carry out work in
furtherance of an employer’s business enterprise who are not
themselves employers shall be counted as persons in the
employ of such employer.
N.Y.C. Admin. Code § 8-102(5).
“The term ‘employment agency’ includes any person undertaking to
procure employees or opportunities to work.” N.Y.C. Admin. Code §
8-102(2).
“The term ‘labor organization’ includes any organization which exists
and is constituted for the purpose, in whole or in part, of collective
bargaining or of dealing with employers concerning grievances, terms
and conditions of employment, or of other mutual aid or protection in
connection with employment.” N.Y.C. Admin. Code § 8-102(3).
3
The NYCHRL prohibits unlawful discriminatory practices in housing,
and covers entities including the “owner, lessor, lessee, sublessee,
assignee, or managing agent of, or other person having the right to
sell, rent or lease or approve the sale, rental or lease of a housing
accommodation, constructed or to be constructed, or an interest
therein, or any agent or employee thereof.” N.Y.C. Admin. Code § 8-
107(5). Covered entities also include real estate brokers, real estate
NYC Commission on Human Rights
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salespersons, or employees or agents thereof. Id. The NYCHRL
defines the term “housing accommodation” to include “any building,
structure, or portion thereof which is used or occupied or is intended,
arranged or designed to be used or occupied, as the home, residence
or sleeping place of one or more human beings. Except as otherwise
specifically provided, such term shall include a publicly-assisted
housing accommodation.” N.Y.C. Admin. Code § 8-102(10). However,
the NYCHRL exempts from coverage:
the rental of a housing accommodation, other than a publicly-assisted
housing accommodation, in a building which contains housing
accommodations for not more than two families living independently
of each other, if the owner [or] members of the owner’s family reside
in one of such housing accommodations, and if the available housing
accommodation has not been publicly advertised, listed, or otherwise
offered to the general public; or (2) to the rental of a room or rooms in
a housing accommodation, other than a publicly-assisted housing
accommodation, if such rental is by the occupant of the housing
accommodation or by the owner of the housing accommodation and
the owner or members of the owner’s family reside in such housing
accommodation.
N.Y.C. Admin. Code § 8-107(5)(4).
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accommodations.
4
The NYCHRL also prohibits discriminatory
harassment
5
and bias-based profiling by law enforcement.
6
Pursuant
to Local Law No. 85 (2005) (“Local Civil Rights Restoration Act of
2005”), the NYCHRL must be construed “independently from similar
or identical provisions of New York State or federal statutes,” such
that “similarly worded provisions of federal and state civil rights laws
[are] a floor below which the City’s Human Rights law cannot fall,
rather than a ceiling above which the local law cannot rise.”
7
In
4
The NYCHRL prohibits unlawful discriminatory practices in public
accommodations, and covers entities including any person who is the
owner, franchisor, franchisee, lessor, lessee, proprietor, manager,
superintendent, agent or employee of any place or provider of public
accommodation. N.Y.C. Admin. Code § 8-107(4). The NYCHRL
defines the term “place or provider of public accommodation” to
include:
providers, whether licensed or unlicensed, of goods, services,
facilities, accommodations, advantages or privileges of any kind, and
places, whether licensed or unlicensed, where goods, services,
facilities, accommodations, advantages or privileges of any kind are
extended, offered, sold, or otherwise made available. Such term shall
not include any club which proves that it is in its nature distinctly
private . . . [or] a corporation incorporated under the benevolent
orders law or described in the benevolent orders law but formed
under any other law of this state, or a religious corporation
incorporated under the education law or the religious corporation law
[which] shall be deemed to be in its nature distinctly private.
N.Y.C. Admin. Code § 8-102(9).
5
N.Y.C. Admin. Code §§ 8-602 – 8-604.
6
N.Y.C. Admin. Code § 14-151.
7
Local Law No. 85 § 1 (2005); N.Y.C. Admin. Code § 8-130(a) (“The
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addition, exemptions to the NYCHRL must be construed “narrowly in
order to maximize deterrence of discriminatory conduct.”
8
The provisions of the NYCHRL that prohibit discrimination on the
basis of disability are generally broader than the Americans with
Disabilities Act (“ADA”) and the Fair Housing Act (“FHA”). The
NYCHRL defines disability as any physical, medical, mental, or
psychological impairment,
9
or a history or record of such
impairment,
10
and includes a full range of sensory, mental, physical,
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 worded comparably
to provisions of this title, have been so construed.”).
8
Local Law No. 35 (2016); N.Y.C. Admin. Code § 8-130(b).
9
The term “physical, medical, mental, or psychological impairment”
means:
[a]n impairment of any system of the body; including, but not limited
to: the neurological system; the musculoskeletal system; the special
sense organs and respiratory organs, including, but not limited to,
speech organs; the cardiovascular system; the reproductive system;
the digestive and genito-urinary systems; the hemic and lymphatic
systems; the immunological systems; the skin; and the endocrine
system; or … [a] mental or psychological impairment.
N.Y.C. Admin. Code § 8-102(16)(b).
In the case of alcoholism, drug addiction or other substance abuse,
the term “disability” applies to a person who “is recovering or has
recovered” and “currently is free of such abuse.” Id.
10
N.Y.C. Admin. Code § 8-102(16)(a).
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mobility, developmental, learning, and psychological disabilities—
whether they are visible and apparent or not.
The NYCHRL creates four general causes of action related to
disability discrimination. First, it prohibits covered entities from
discriminating against an individual based on disability or perceived
disability. As such, under the NYCHRL, both temporary or short-term
injuries, as well as chronic conditions, may qualify as disabilities even
if the impairments, when treated, permit the aggrieved individual to
perform physical activities without limitation, and/or the conditions do
not substantially limit the individual’s major life activities.
11
Second, it
11
See e.g., Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 233
(2d Cir. 2000) (stating that “disability” is “more broadly defined” under
the NYCHRL than it is under the ADA); Debell v. Maimonides Med.
Ctr., No. 09-CV-3491, 2011 WL 4710818, at *6 (E.D.N.Y. Sept. 30,
2011) (finding that a reasonable jury could conclude that plaintiff with
psoriasis had a disability within the meaning of the NYCHRL, even
though plaintiff failed to establish a cognizable disability under the
ADA); Primmer v. CBS Studios, Inc., 667 F. Supp. 2d 248 (S.D.N.Y.
2009) (stating that the major difference in the analysis of disability
discrimination under the NYCHRL and the ADA is that the definition of
“disability” under the former is considerably broader than the ADA
definition, in that it does not require showing that the disability
substantially limits a major life activity); Attis v. Solow Realty Dev. Co.,
522 F. Supp. 2d 623, 631–32 (S.D.N.Y. 2007) (finding that “any
medically diagnosable impairment” is sufficient to constitute a
disability under the NYCHRL); Sussle v. Sirina Prot. Sys. Corp., 269
F. Supp. 2d 285, 316 (S.D.N.Y. 2003) (finding that employee’s failure
to establish that he suffered from a disability within meaning of ADA
did not necessarily vitiate his claims under the NYCHRL, inasmuch as
the definition of “disability” enumerated in the NYCHRL was broader
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requires that covered entities provide reasonable accommodations to
individuals with disabilities to enable them “to satisfy the essential
requisites of a job or enjoy the right or rights in question provided that
the disability is known or should have been known by the covered
entity.”
12
Third, it prohibits discrimination based on one’s “association”
or relationship with an individual with an actual or perceived
disability.
13
Fourth, in December 2017, the City Council passed Local
Law No. 59 (2018), which will go into effect on October 15, 2018, and
which creates a separate cause of action against covered entities that
“refuse or otherwise fail to engage in a cooperative dialogue
14
within a
reasonable time with a person who has requested an accommodation
or who the covered entity has notice may require such an
accommodation.”
15
than the ADA definition); Hazeldine v. Beverage Media, Ltd., 954 F.
Supp. 697, 707 (S.D.N.Y. 1997) (finding that unlike the ADA, the
NYCHRL only requires that an individual’s disability impair a bodily
system, and does not require a substantial limitation of the individual’s
major life activities).
12
N.Y.C. Admin. Code § 8-107(15)(a).
13
N.Y.C. Admin. Code § 8-107(20).
14
The term “cooperative dialogue” means the process by which a
covered entity and a person entitled to an accommodation, or who
may be entitled to an accommodation under the law, engage in good
faith in a written or oral dialogue concerning the person’s
accommodation needs; potential accommodations that may address
the person’s accommodation needs, including alternatives to a
requested accommodation; and the difficulties that such potential
accommodations may pose for the covered entity. Local Law No. 59
(2018).
15
Id.
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The New York City Commission on Human Rights (the “Commission”)
is the City agency charged with enforcing the NYCHRL. Individuals
interested in vindicating their rights under the NYCHRL can choose to
file a complaint with the Commission’s Law Enforcement Bureau
within one (1) year of the discriminatory act or file a complaint in court
within three (3) years of the discriminatory act.
This document serves as the Commission’s legal enforcement
guidance on the NYCHRL’s protections as they apply to
discrimination based on disability or perceived disability, including
obligations of covered entities to provide reasonable accommodations
for individuals with disabilities.
16
This document is not intended to
serve as an exhaustive list of all forms of disability-related
discrimination claims under the NYCHRL.
Violations of the NYCHRL: Prohibitions on
Disability Discrimination
Disparate Treatment
16
While this document specifically reflects the Commission’s
interpretation of the NYCHRL, the Commission has included
references to related federal authority where it is persuasive and
instructive.
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Disparate treatment occurs when a covered entity treats an individual
less favorably than others because of a protected characteristic.
17
Treating an individual less well than others because of their disability,
or perceived disability, in employment, housing, and public
accommodations is a violation of the NYCHRL.
18
To establish disparate treatment under the NYCHRL, an individual
must show they were treated less well or subjected to an adverse
action, motivated, at least in part, by discriminatory animus. An
individual may demonstrate this through direct evidence of
discrimination or indirect evidence that gives rise to an inference of
discrimination.
19
If a showing of discrimination relies on indirect
evidence, the covered entity may respond to the indirect evidence of
discrimination by putting forward a non-discriminatory justification for
the alleged conduct. If the covered entity does so, the burden shifts
back to the aggrieved individual to show that the proffered non-
discriminatory motive was pretextual, false, or misleading, or that
discrimination at least partly motivated the conduct.
20
17
Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003).
18
The NYCHRL also applies in several other contexts such as
licensing, real estate, credit, and discriminatory harassment.
19
Examples of direct evidence could include explicit statements by a
covered entity that an adverse action was based on a protected
status, or explicitly discriminatory policies. See In re Comm’n on
Human Rights ex rel. Stamm v. E&E Bagels, OATH Index No. 803/14,
Dec. & Order, 2016 WL 1644879, at *4 (Apr. 21, 2016).
20
See Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 40-41 (1st
Dep’t 2011) (“A plaintiff's response to a defendant's showing of
nondiscriminatory reasons for its actions can take a variety of forms.
In some cases, the plaintiff may present evidence of pretext and
independent evidence of the existence of an improper discriminatory
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1. Treating People Less Well Because of Disability
Adverse treatment may be overt, such as refusing to accept a rental
application for an apartment because the applicant has a disability;
deciding not to hire an applicant because of their disability; or firing an
employee because of their disability. However, discriminatory conduct
on the basis of disability often manifests itself in less direct ways. For
example, holding an employee to a different standard because of their
disability, in the absence of a reasonable accommodation, or acting
on assumptions about what an applicant or employee with a disability
can or cannot do in making decisions about hiring, assignments, or
promotions may be discriminatory conduct. Similarly, not making
repairs on a unit because of an assumption that a tenant with a
disability is less likely to make a complaint is discriminatory. Such
forms of discrimination are actionable under the NYCHRL because
they subject individuals with disabilities to worse treatment. These
actions contribute to the exclusion of individuals with disabilities from
jobs, housing, and places of public accommodation, and violate the
NYCHRL.
motive. In other cases, the plaintiff may leave unchallenged one or
more of the defendant's proffered reasons for its actions, and may
instead seek only to show that discrimination was just one of the
motivations for the conduct. In addition, evidence of an unlawful
motive in the mixed motive context need not be direct, but can be
circumstantial—as with proof of any other fact….”).
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a. Employment
It is unlawful to fire or refuse to hire or promote an individual or to
discriminate in the terms and conditions of employment because of an
employee’s actual or perceived disability.
21
Examples of terms and
conditions of employment include salary; work assignments;
employee benefits; and keeping the workplace free from harassment.
Examples of Disparate Treatment
An employer seeks to offset the cost of providing a reasonable
accommodation to an employee with a disability by lowering his
salary or paying him less than other employees in similar
positions.
An employee who is deaf is often left out of conversations and
discussions with her hearing co-workers, impacting her ability to
get the information necessary to do her job. This behavior is
impacting her professional development and well-being. When
she brings this to the attention of her supervisors, the employer
dismisses her concerns, tells her that “it’s not a big deal,” she
just needs to be more patient, and promises that they will
interpret the “important stuff” for her.
An employer assigns an employee who has a speech disability
to a seat at the back of the office so that customers do not hear
or see him, and prevents him from engaging with clients in a
public-facing role, even though he is perfectly capable of
communicating with clients.
21
N.Y.C. Admin. Code § 8-107(1).
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b. Housing
It is unlawful to refuse to sell, rent, or lease housing or to
misrepresent the availability of housing to someone because of their
actual or perceived disability.
22
It is also unlawful to set different
terms, conditions, or privileges for the sale, rental, or lease of
housing, such as different housing services or facilities, because of an
individual’s actual or perceived disability.
23
Examples of Disparate Treatment
A landlord has a general “no pets” policy and requires that all
tenants with service animals or emotional support animals pay
an additional security deposit, take out renter’s insurance, and
only use the freight elevator to enter and leave the building, even
if the landlord has no reason to believe that a particular service
animal or emotional support animal is likely to cause more than
the usual amount of wear and tear associated with normal use of
the apartment building. A landlord may require a tenant to pay
for damage or wear and tear caused by a service animal or
emotional support animal, beyond wear and tear that is
attributable to normal use, but cannot demand any additional
deposits, insurance, or requirements up front.
A tenant with a child who has autism moves into a building. Upon
moving in, the tenant notifies the landlord that her child can have
episodes in which he may cause noise. The landlord posts a sign
in the lobby of the building alerting all other residents to the
22
N.Y.C. Admin. Code § 8-107(5)(a)(1).
23
N.Y.C. Admin. Code § 8-107(5)(a)(1)(b).
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child’s disability and asking that they notify him if they have any
noise complaints.
c. Public Accommodations
It is unlawful for providers of public accommodations, their
employees, or their agents to directly or indirectly deny any person, or
communicate an intent to deny any person, the services, advantages,
facilities, or privileges of a public accommodation because of their
actual or perceived disability, or to make their patronage feel
unwelcome.
24
Examples of Disparate Treatment
A customer who relies on a wheelchair visits a grocery store deli
counter. The deli employee ignores the customer until the
customer complains that she has been waiting longer than
anyone else. In response, the employee says, “You’ll just have to
wait until I’m done helping all the normal customers and then I’ll
get to you.”
A patient visits a hospital for a pre-surgical consultation with his
doctor. The patient has a disability that affects his speech,
causing him to speak in a slow and deliberate manner. During
the consultation, the patient has a number of questions about the
procedure. His doctor says, “I don’t have time for this. Either you
want the surgery or not. Next time bring someone with you who
can translate for you.”
A restaurant employee denies entry to a customer with a dog
that the customer makes clear is a service dog.
24
N.Y.C. Admin. Code § 8-107(4).
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When a customer seeks to enter a restaurant or other place of public
accommodation, the business’s employees may ask the customer: (1)
whether the animal is a service animal required because of a
disability; and (2) what work or task has the animal been trained to
perform. Employees cannot ask about the customer’s disability;
require medical documentation; require a special identification card or
training documentation for the animal; or ask that the animal
demonstrate its ability to perform the work or task.
25
2. Harassment
Disparate treatment can manifest as harassment when the incident or
behavior creates an environment or reflects or fosters a culture or
atmosphere of stereotyping, degradation, humiliation, bias, or
objectification. Harassment related to an individual’s actual or
perceived disability is a form of discrimination, and may consist of a
single or isolated incident, or a pattern of repeated acts or behavior.
Under the NYCHRL, harassment related to disability covers a broad
range of conduct and occurs generally when an individual is treated
less well on account of their disability. The severity or pervasiveness
of the harassment is only relevant to damages.
26
Harassment may
include comments, gestures, jokes, or pictures that target an
25
See 35 C.F.R. 35.136(f); U.S. Dep’t of Justice, Civil Rights Div.,
Disability Rights Section, ADA 2010 Revised Requirements: Service
Animals (July 12, 2014),
https://www.ada.gov/service_animals_2010.pdf.
26
Goffe v. NYU Hosp. Ctr., 201 F. Supp. 3d 337, 351 (E.D.N.Y. 2016)
(“the federal severe or pervasive standard of liability no longer applies
to NYCHRL claims, and the severity or pervasiveness of conduct is
relevant only to the scope of damages…”).
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individual based on their disability, and can occur in the context of
employment, housing, and public accommodations, such as schools,
hospitals, or public transportation.
Examples of Harassment
A student is being bullied in class because of his learning
disability. The school leadership has been notified of the bullying
but has done nothing to address it.
A supervisor yelled and cursed at his employee who has
cerebral palsy, calling her a “spaz” and complaining that he
would not have hired her if he knew her disability was “this bad.”
3. Discriminatory Policies
Any policy that negatively singles out individuals with disabilities is
unlawful disparate treatment under the NYCHRL unless the covered
entity can demonstrate a legitimate non-discriminatory justification for
the distinction. Policies that categorically exclude individuals on
account of their disability and without an individualized assessment
are unlawful. This includes policies that exclude workers with
disabilities from specific job categories or positions without an
individualized assessment of the candidate and the essential
requisites of the job, deny housing to individuals with disabilities, deny
entrance to individuals with disabilities to certain public
accommodations, or impose conditions on people on account of their
disability. Using safety concerns as a pretext for discrimination or as a
way to reinforce stereotypes and assumptions about people with
disabilities is unlawful. An employer may, however, require a doctor’s
note stating that an individual who had been out on leave related to a
disability is able to return to work with or without a reasonable
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accommodation, if an employer has a reasonable belief that an
employee’s ability to perform the essential requisites of the job will be
impaired or that they will pose a direct threat to themselves or the
safety of others due to a medical condition.
27
Examples of Discriminatory Policies
An employer has a policy that requires employees to be “100%
healed” or “fully healed” to return to work, and refuses to provide
certain types of accommodations. This policy is unlawful under
the NYCHRL, as an employer cannot require an employee with a
disability to have no medical restrictions if the employee is able
to perform his job with or without a reasonable accommodation.
Similarly, a policy that categorically prohibits “light duty” work
assignments and fails to provide an exception for reasonable
accommodations would be discriminatory.
28
An apartment complex for seniors institutes a rule requiring all
users of electric or motorized wheelchairs and scooters to obtain
liability insurance coverage. This policy imposes a condition on
27
See U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans With Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html#9.
28
As with any reasonable accommodation request, “light duty”
assignments must be awarded unless allowing such an assignment
would amount to an undue hardship for the employer. The NYCHRL
does not require that an employer create a superfluous position to
accommodate an individual with disabilities. However, an employer’s
ability to reassign duties among its staff is relevant to an assessment
of undue hardship.
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some people because of their disability, and is therefore unlawful
under the NYCHRL. Nonetheless, as with any damage caused
by a tenant during their residency, a housing provider may
require that a tenant with an electric or motorized wheelchair pay
for any damage such equipment causes in common areas of the
building, beyond normal wear and tear.
A day care center has a policy of refusing admission to children
who need medication administered throughout the course of the
day. This policy categorically excludes children with certain
disabilities from a public accommodation, and is therefore
unlawful under the NYCHRL.
29
29
See N.Y. STATE OFFICE OF CHILDREN AND FAMILY SERVS., THE
BUREAU OF EARLY CHILDHOOD SERVS., POLICY STATEMENT, ID NUMBER
06-3 (Mar. 28, 2006) https://ocfs.ny.gov/main/childcare/policies/06-
3.pdf (“The ADA may require that a day care program give
medications to children with disabilities, in some circumstances, in
order to make reasonable accommodations to enable such children
be able to attend the program. The practical ramification of the ADA in
New York State is that day care providers should be prepared to
obtain, in a timely fashion, the required training in order to administer
at least certain basic types of medications if required by children with
disabilities where such administration will enable the child to attend
the day care program. If a provider would be in violation of the ADA
by refusing to administer medication to a child with a disability, and
either has such children already in the program or parents or
guardians seek to enroll such children, the provider must take steps in
a timely manner to become authorized to administer medications in
accordance with OCFS regulations, modify its health care plan with
the approval of a health care consultant to provide for the
administration of medications, and administer any medication required
by the ADA.”).
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4. Actions Based on Stereotypes and Assumptions
It is unlawful under the NYCHRL for covered entities to act on
stereotypes or assumptions, without regard to individual ability or
circumstance. Judgments and stereotypes about individuals with
disabilities, including their physical and mental capabilities, are
pervasive in our society and cannot be used as pretext for unlawful
discriminatory decisions in employment, housing, and public
accommodations.
Examples of Actions Based on Stereotypes and Assumptions
A landlord decides not to rent an apartment to an otherwise
qualified applicant who has a mental health disability because of
unfounded speculation that the individual poses a danger.
A landlord decides not to rent an apartment to an otherwise
qualified applicant who has a mobility disability because of
assumptions regarding the applicant’s need for accommodations
and a belief that it will “cost too much.” However, if a housing
provider and an applicant engage in a cooperative dialogue
30
and the housing provider determines that it will pose an undue
hardship
31
to provide an accommodation that the housing
applicant will need, it may lawfully determine that it cannot rent
that apartment to the applicant.
An employer decides not to hire an otherwise qualified applicant
who uses a mobility device because of assumptions regarding
30
See Local Law No. 59 (2018).
31
See N.Y.C. Admin. Code § 8-102(18).
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the applicant’s abilities to travel to off-site meetings, events, and
conferences.
An employer decides not to hire an otherwise qualified applicant
whose recent bout with cancer is now in remission because the
employer believes that that the condition will recur and cause the
employee to miss work.
A gym asks an individual with a mobility disability to sign extra
waivers that other patrons do not sign because of a fear that the
individual poses a liability.
A pool does not allow an individual with a disability to swim
unless a lifeguard is on duty because of assumptions regarding
the individual’s capabilities, but does not impose this restriction
on other patrons.
Neutral Policies That Have a Discriminatory Impact
While the central question in a disparate treatment case is whether
the protected trait, at least in part, motivated the covered entity’s
decision or actions, disparate impact claims involve policies or
practices that are facially neutral, but disproportionately or more
harshly impact one group. Unless such policies or practices bear a
significant relationship to a significant business objective of the
covered entity, they are unlawful under the NYCHRL.
32
Therefore,
under a disparate impact theory of discrimination, a facially neutral
policy or practice may be found to be unlawful discrimination even
without evidence of the covered entity’s subjective intent to
discriminate.
33
For example, a policy that imposes a penalty without
32
N.Y.C. Admin. Code § 8-107(17)(2).
33
Raytheon Co. v. Hernandez, 540 U.S. 44, 52–53 (2003).
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exception on employees for exceeding a permissible amount of sick
leave may appear facially neutral, but it may disparately impact
individuals with disabilities, which may result in a finding that the
policy is unlawful under the NYCHRL. By contrast, a policy that allows
for the possibility of additional sick leave as a reasonable
accommodation for individuals with disabilities would not run afoul of
the NYCHRL.
The NYCHRL explicitly creates a disparate impact cause of action.
The law also explicitly makes disparate impact applicable to
discrimination claims beyond the employment context,
34
applying to
claims of discrimination in housing, public accommodations, and other
covered contexts.
The standard for establishing a prima facie case of disparate impact
under the NYCHRL is lower than the standard for analogous claims
under federal laws such as the ADA or Title VII, or the New York
State Human Rights Law.
35
Under the NYCHRL, a complainant must
show that a facially neutral policy or practice has a disparate impact
on a protected group.
36
Once such a showing has been made, the
34
Levin v. Yeshiva Univ., 96 N.Y.2d 484, 492–93 (2001).
35
Teasdale v. N.Y.C. Fire Dep't, FDNY, 574 F. App’x 50, 52 (2d Cir.
2014).
36
N.Y.C. Admin. Code § 8-107(17)(1); see N.Y.C. Admin. Code § 8-
107(17)(2)(b) (“The mere existence of a statistical imbalance between
a covered entity’s challenged demographic composition and the
general population is not alone sufficient to establish a prima facie
case of disparate impact violation, unless the general population is
shown to be the relevant pool for comparison, the imbalance is shown
to be statistically significant, and there is an identifiable policy or
practice, or group of policies or practices, that allegedly causes the
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covered entity has an opportunity to plead and prove as an affirmative
defense that either: (1) the policy or practice complained of bears a
significant relationship to a significant business objective; or (2) the
policy or practice does not contribute to the disparate impact.
37
However, this defense is defeated if the complainant produces
substantial evidence of an available alternative policy or practice with
less disparate impact, and the covered entity is unable to establish
that an alternative policy or practice would not serve its business
objective as well as the complained-of policy or practice.
38
“Significant
business objective” includes, but is not limited to, successful
performance of the job.
39
Covered entities should modify policies and practices that could have
a disparate impact on individuals with disabilities or ensure that there
is a mechanism by which covered entities can provide modifications
or exceptions to such policies and practices as reasonable
accommodations. Written policies that express limitations or
prohibitions, such as a “maximum leave policy” in an employee
handbook or a “no pets” policy in a lease, should be clear about the
availability of and the process for seeking and granting an exception
or modification to the policy as a reasonable accommodation. In
determining whether a covered entity’s facially neutral policy or
practice has a discriminatory impact, the Commission will consider all
written policies, including employee handbooks and manuals, and
whether and how staff are trained to address requests for
accommodation.
imbalance.”).
37
N.Y.C. Admin. Code § 8-107(17)(2)(b).
38
Id.
39
Id.
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Examples of Neutral Policies with Disparate Impact in
Employment, Housing, and Public Accommodations
Employment
“No fault” absence or maximum leave policies: Maximum
leave or “no fault” absence policies generally establish the
maximum amount of leave an employer will provide or allow.
They may take different forms, such as establishing a flat limit for
both extended and intermittent time, or limiting unplanned
absences. For example, an employer covered under the Family
Medical Leave Act (FMLA) grants employees a maximum of
twelve weeks of leave per year. If an employee has exhausted
her twelve weeks of FMLA leave,
40
but requires fifteen
additional days of leave due to her disability, the employer must
engage in a cooperative dialogue
41
with the employee to
determine if she needs to take additional leave as a reasonable
accommodation and can only deny that request if it would pose
an undue hardship.
Use of form warning letters: Employers sometimes rely on
“form letters” to communicate with employees who are nearing
the end of leave provided under an employer’s leave program,
that instruct employees to return to work by a certain date or face
termination or other discipline. Such warning letters should let
employees know that if they need additional leave as a
reasonable accommodation for a disability, they should ask for it
40
See Family Medical Leave Act, 29 U.S.C. § 2612(a)(1).
41
See infra Part IV(a) for a discussion of the cooperative dialogue
process.
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29
as soon as possible so that the employer may consider whether
it can grant an extension without causing undue hardship.
Short-term or on-call scheduling: Employers often have short-
term or on-call scheduling for their employees, where employees
do not have regular work hours and are subject to shift
cancellations and last-minute changes to their hours. Such
policies prevent employees from having stable, predictable
schedules, and may have a disparate impact on employees with
disabilities or employees who are caretakers for individuals with
disabilities.
42
While New York City’s Fair Work Week legislation
applies to workers in the fast food and retail sectors, requiring
advance notice of schedule changes, stable schedules, and a
pathway to full-time hours,
43
short-term or on-call scheduling
remains common in many other industries. If an employee
requests advanced notice for schedule changes or a stable
schedule to accommodate their disability, the employer must
engage in a cooperative dialogue with the employee about their
request.
Housing
“No pets” policies: A landlord with a “no pets” policy must have
a process, even if informal, for seeking and obtaining an
exemption or modification of the policy to allow a tenant to live
with his or her service or emotional support animal.
44
42
N.Y.C. Admin. Code § 8-107(20).
43
Local Law No. 107 (2017).
44
See 24 C.F.R. § 100.204(b); Bronk v. Ineichen, 54 F.3d 425, 429
(7th Cir. 1995).
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Policies prohibiting physical modification of units: While a
landlord may generally not allow residents to modify their units,
landlords must have a process, even if informal, for residents
with disabilities to seek and obtain an exemption to the policy to
allow them to request reasonable physical accommodations to
their private living space, as well as to common use spaces.
45
Public Accommodations
“No outside food” policies: A place of public accommodation
that does not allow people to bring outside food into its facility
may need to make an exception for a person who, for example,
has diabetes and needs to eat frequently to control their glucose
level, or has severe food allergies and may not be able to avail
themselves of food options in the facility.
46
“No motorized devices” policies: A covered entity that
prohibits use of motorized devices on its premises must allow
people with disabilities who use mobility devices such as
wheelchairs and electric scooters to enter the premises unless a
particular type of device cannot be accommodated because of
legitimate safety requirements.
47
Entities such as small
convenience stores or small offices, where it may not be feasible
45
See 42 U.S.C. 3604(f)(3)(A).
46
See U.S. Dep’t of Justice, Civil Rights Div., Disability Rights
Section, ADA Update: A Primer for State and Local Governments
(June 8, 2015),
https://www.ada.gov/regs2010/titleII_2010/titleII_primer.pdf.
47
See U.S. Dep’t of Justice, Civil Rights Div., Disability Rights
Section, ADA Requirements: Wheelchairs, Mobility Aids, and Other
Power-Driven Mobility Devices (Jan. 31, 2014),
https://www.ada.gov/opdmd.pdf.
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31
to accommodate certain types of mobility devices, are required
to serve a person with a disability using one of these devices in
an alternate manner if possible, such as providing curbside
service or meeting the person at an alternate location.
Associational Discrimination
1. Associational Disparate Treatment Claims
The NYCHRL’s anti-discrimination protections extend to prohibit
unlawful discriminatory practices based on a person’s relationship to
or association with a person with an actual or perceived disability.
48
The law does not require a familial relationship for an individual to be
protected by the association provision; the relevant inquiry is whether
the covered entity was motivated by the individual’s relationship or
association with a person who has a disability.
To establish a disparate treatment claim of associational
discrimination based on disability under the NYCHRL, a complainant
must show that: (1) the covered entity knew of the individual’s
relationship or association with a person with an actual or perceived
disability; (2) the individual suffered an independent injury, separate
from any injury the person with the disability may have suffered;
49
and
48
N.Y.C. Admin. Code § 8-107(20).
49
N.Y.C. Admin. Code § 8-107(20); see Bartman v. Shenker, 5 Misc.
3d 856, 860 (Sup. Ct. N.Y. Cty. 2004); Jing Zhang v. Jenzabar, Inc.,
No. 12 Civ. 2988, 2015 WL 1475793, at *12 (E.D.N.Y. Mar. 30, 2015)
(“To maintain a claim for association discrimination, [plaintiff] must
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32
(3) the covered entity treated the individual less well and was at least
in part motivated by discriminatory animus.
50
A complainant may
show this through direct evidence of discrimination. Alternatively, if a
complainant provides evidence that would support an inference of
discrimination, the burden shifts to the respondent to advance a
legitimate, non-discriminatory reason for its actions. If it is able to do
so, the burden shifts back to the complainant to demonstrate that
discriminatory animus was at least a factor in the adverse action.
51
The prohibition against associational disability discrimination prevents
covered entities from taking adverse actions against individuals who
associate with people who have disabilities based on unfounded
stereotypes and assumptions. This means that a covered entity may
not take adverse action based on unfounded concerns about the
simply allege that it suffered an independent injury because of its
relationship with [a person] who alleges unlawful discriminatory
practices related to her terms, conditions, or privileges of
employment.”).
50
See In re Comm’n on Human Rights ex rel. Blue v. Jovic, OATH
Index No. 1624/16, Dec. & Order, 2017 WL 2491797, at *9 (May 26,
2017) aff’d sub nom. Jovic v. N.Y.C. Comm’n on Human Rights, Index
No. 100838/2017 (Sup. Ct. N.Y. Cty. Feb. 14, 2018).
51
Id.; see Manon v. 878 Educ., LLC, No. 13 Civ. 3476, 2015 WL
997725, at *6 (S.D.N.Y. Mar. 4, 2015) (holding that a complainant
need not establish that but for her association with a person with a
disability, the adverse action would not have occurred; rather, the
NYCHRL standard for associational disability discrimination is far less
onerous; a complainant need only point to a medical impairment and
establish that discrimination was a motivating factor in the adverse
action).
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known disability of a family member or anyone else with whom the
applicant, employee, or customer has a relationship or association.
Examples of Associational Disparate Treatment Claims
An employer refuses to hire an individual who has a child with a
disability based on an assumption that the applicant will be away
from work excessively or otherwise be unreliable.
An employer fires an employee who volunteers helping people
who are HIV-positive or have AIDS out of fear that the employee
will contract the disease.
A landlord refuses to work with a broker who is assisting a client
who uses a wheelchair in renting an apartment in the landlord’s
building because the landlord assumes that he will have to install
a ramp.
A landlord refuses to rent to an applicant whose child has a
mental health disability based on an assumption that the child
may cause a disturbance to other residents.
2. Associational Reasonable Accommodations Claims
A covered entity’s failure to provide reasonable accommodations to
an individual with a disability can cause injuries to people beyond the
individual. For example, caretakers, parents, children, or other
persons related to or associated with an individual with a disability
and who also have a relationship to the covered entity—e.g. as the
co-tenant of the individual with a disability—may suffer independent
injuries as a direct result of the covered entity’s failure to provide a
reasonable accommodation. Such injuries may include, but are not
limited to, emotional distress and other damages associated with
having to live without the accommodation. Therefore, if an individual
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34
with a disability is unlawfully denied a reasonable accommodation,
their relative or associate may also have an associational claim for
failure to accommodate under the NYCHRL.
52
To establish a claim of associational discrimination for failure to
accommodate under the NYCHRL, a complainant must show that: (1)
the covered entity knew of the complainant’s relationship or
association with a person with an actual or perceived disability; (2) the
complainant suffered a direct, independent injury as a result of the
52
In re Comm’n on Human Rights ex rel. Blue v. Jovic, OATH Index
No. 1624/16, Dec. & Order, 2017 WL 2491797, at *10 (May 26, 2017)
aff’d sub nom. Jovic v. N.Y.C. Comm’n on Human Rights, Index No.
100838/2017 (Sup. Ct. N.Y. Cty. Feb. 14, 2018); see In re Comm’n on
Human Rights ex rel. Torres v. Prince Mgmt. Corp., OATH Index No.
301/98, R&R, 1997 WL 1129224 (Aug. 14, 1997), adopted, Dec. &
Order, 1997 WL 34613064 (Oct. 27, 1997) (mother awarded damages
for independent injury arising from failure to accommodate children
with disabilities); accord Loeffler v. Staten Island Univ. Hosp., 582
F.3d 268, 278 (2d Cir. 2009) (reinstating NYCHRL claim of children
who suffered a direct, independent injury because of the need to
provide sign-language interpretation services to their parent with
disabilities when hospital failed to provide reasonable
accommodation). “A claim of associational discrimination under § 8-
107(20) of the NYCHRL based on a failure to provide a reasonable
accommodation is essentially the same as a claim for failure to
accommodate under § 8-107(15) ...” In re Comm’n on Human Rights
ex rel. Blue v. Jovic, OATH Index No. 1624/16, Dec. & Order, 2017
WL 2491797, at *10 (May 26, 2017) aff’d sub nom. Jovic v. N.Y.C.
Comm’n on Human Rights, Index No. 100838/2017 (Sup. Ct. N.Y.
Cty. Feb. 14, 2018).
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35
respondent’s failure to provide a reasonable accommodation;
53
(3) a
reasonable accommodation would enable the complainant to use or
enjoy a housing accommodation or public accommodation or to
perform the essential functions of their job; and (4) the covered entity
has failed to provide an accommodation.
54
Example Associational Reasonable Accommodations Claims
A tenant who lives with her daughter requested that the landlord
replace her bathtub as a reasonable accommodation for her
daughter’s disability. The landlord’s failure to provide a
reasonable accommodation caused the tenant to strain her back
while helping her daughter in and out of the bathtub and created
tensions in her relationship with her daughter, due to difficulties
involved in bathing her safely. Therefore, the tenant has a
cognizable associational reasonable accommodation claim.
55
53
See In re Comm’n on Human Rights ex rel. Blue v. Jovic, OATH
Index No. 1624/16, Dec. & Order, 2017 WL 2491797, at *10 (May 26,
2017) aff’d sub nom. Jovic v. N.Y.C. Comm’n on Human Rights, Index
No. 100838/2017 (Sup. Ct. N.Y. Cty. Feb. 14, 2018).
54
See id.; Nieblas-Love v. N.Y.C. Hous. Auth., 165 F. Supp. 3d 51
(S.D.N.Y. 2016) (discussing failure to provide reasonable
accommodation in the employment context).
55
In re Comm’n on Human Rights ex rel. Blue v. Jovic, OATH Index
No. 1624/16, Dec. & Order, 2017 WL 2491797, at *11 (May 26, 2017),
aff’d sub nom. Jovic v. N.Y.C. Comm’n on Human Rights, Index No.
100838/2017 (Sup. Ct. N.Y. Cty. Feb. 14, 2018).
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Postings, Applications, and Selection
Processes
Declaring, printing, or circulating any statement, advertisement, or
publication that directly or indirectly discriminates or expresses an
intent to discriminate based on an individual’s disability or perceived
disability is a violation of the NYCHRL.
56
Therefore, covered entities
should work to ensure that their postings, applications, interviews, and
other selection processes do not directly or indirectly discriminate
against individuals with disabilities.
Employment
1. Job Postings and Advertisements
Under the NYCHRL, it is unlawful for an employer to “declare, print or
circulate or cause to be declared, printed or circulated any statement,
advertisement or publication” which “expresses, directly or indirectly,
any limitation, specification or discrimination” against individuals with
disabilities, or “any intent to make any such limitation, specification or
discrimination.”
57
Job postings or advertisements that state physical
requirements or specifications that are unrelated to the essential
requisites of the job may violate the NYCHRL by directly or indirectly
expressing a limitation or specification that discriminates against
individuals with disabilities.
56
N.Y.C. Admin. Code §§ 8-107(1)(d), 8-107(4)(a)(2), 8-107(5)(a)(2).
57
N.Y.C. Admin. Code § 8-107(1)(d).
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Employers should be careful to word job postings in a way that
conveys the essential requisites of the job without implicitly excluding
individuals with disabilities. In specifying essential requisites of the
job, job postings should focus on required performance outcomes or
deliverables rather than the method by which outcome are achieved,
unless the method is in fact essential to the job. For example,
employers might list the ability to “draft letters and memoranda” rather
than the ability to type, since writing duties may be accomplished with
accommodations such as dictation software. Furthermore, employers
are encouraged to include on their advertisements a statement that
informs applicants that they can request a reasonable
accommodation for interviews and to satisfy the essential requisites of
the job.
2. Applications
Under the NYCHRL, it is unlawful for an employer to “use any form of
application for employment or to make any inquiry in connection with
prospective employment, which expresses, directly or indirectly, any
limitation, specification or discrimination” against individuals with
disabilities, or “any intent to make any such limitation, specification or
discrimination.”
58
Therefore, application forms that include inquiries
about an applicant’s disability may violate the NYCHRL, although
there are some circumstances where such inquiries are allowed, as
described in this section. To avoid improper inquiries about disability,
applications should seek information about an applicant’s skills
related to the essential requisites of the job. An application may
include a yes or no question about an applicant’s ability to perform
those functions with or without an accommodation.
58
N.Y.C. Admin. Code § 8-107(1)(d).
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Example of an Employer’s Unlawful Job Application
An employer’s job application includes various questions related
to applicants’ medical history and disabilities, such as asking
whether applicants would consent to a physical examination or
an HIV test if they were hired and asking them to explain their
physical/mental restrictions or impairments. This job application
violates the NYCHRL by indirectly expressing a limitation,
specification, or discrimination on the basis of disability.
59
There are, however, certain circumstances in which an employer may
inquire about an applicant’s disability status. For example, if an
employer is participating in an affirmative action program for
individuals with disabilities or applying for a Work Opportunity Tax
Credit,
60
the employer may ask applicants to voluntarily self-identify
59
See In re Comm’n on Human Rights v. A Nanny on the Net, OATH
Index Nos. 1364/14 & 1365/14, Dec. & Order, 2017 WL 694027, at *4
(Feb. 10, 2017) (Questions deemed unlawful on the employer’s
application form included: “Do you have any problems with: Drug or
alcohol abuse? Emotional illness? Eating disorder? If yes, when?
How was it resolved? How did this affect you?”; “Do you take any
frequent medication? If yes, please list.”; “Do you have any
physical/mental restrictions or impairments or congenital defects? If
yes, explain”; “Do you suffer from depression? If yes, are you
currently, or have you ever taken any medication for depression?”).
60
The Work Opportunity Tax Credit (WOTC) is a federal tax credit
available to employers for hiring individuals from certain targeted
groups who have consistently faced significant barriers to
employment, including veterans with disabilities, and individuals with
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39
their eligibility for the program on the employment application for
purposes of qualifying for the program. Additionally, some federal,
state, or local laws or regulations may require inquiries into disability
status to determine eligibility in certain employment programs, such
as those applicable to veterans with disabilities. Inquiries about
disabilities may be necessary under such laws to identify applicants
with disabilities in order to provide them with required special
services.
61
In any such instance, the employer must state clearly on
the application that the information requested is used solely in
connection with its affirmative action obligations or efforts; that the
information is being requested on a voluntary basis; and that it will be
kept confidential. The employer may request information or
documentation of the disability needed to qualify for the program.
Employers are advised to ensure that any medical or disability-related
information is kept confidential and in medical files separate from an
employee’s general personnel file to avoid unnecessarily disclosing
the applicant’s private medical documents and to ensure that
managers and other employees are not accidentally given access to
the information.
62
disabilities who are completing or have completed rehabilitative
services by specified providers. See U.S. Dep’t of Labor, Emp’t &
Training Admin., Work Opportunity Tax Credit,
https://doleta.gov/business/incentives/opptax/ (last visited Oct. 25,
2017).
61
See U.S. Equal Emp. Opportunity Comm’n & U.S. Dep’t Of Justice,
Civil Rights Div., Americans with Disabilities Act: Questions and
Answers (May 2002), https://www.ada.gov/archive/q&aeng02.htm.
62
See, e.g., 29 C.F.R. § 1630.14.
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3. Interviews
The NYCHRL prohibits employers from making any inquiries in
connection with prospective employment that directly or indirectly
express any limitation, specification, or discrimination based on an
individual’s disability, or any intent to make any such limitation,
specification or discrimination.
63
Examples of inquiries that may
express discrimination based on an individual’s disability include
asking an individual whether they currently have, or have ever had, a
disability; inquiring about the nature or severity of the disability; or
asking for medical documentation regarding a disability. Employers
should focus their interview questions instead on the ability of the
applicant to perform the essential requisites of the job. For example,
while it may be unlawful for the employer to ask a job applicant if he
has a disability, it is not unlawful for an employer to ask a job
applicant whether he can perform the essential requisites of the job,
with or without an accommodation. Employers are also required to
provide reasonable accommodations for applicants during the
interview process.
64
Employers should be cautious about asking applicants about gaps in
work history, as this may lead to inquiries relating to an applicant’s
disability.
65
It may also lead to inquiries relating to an applicant’s
relationship or association with an individual with a disability for whom
63
N.Y.C. Admin. Code § 8-107(1)(d).
64
See infra Part III(a), discussing reasonable accommodations in the
pre-employment context.
65
This line of questioning could potentially violate the NYCHRL’s
prohibition on inquiries for the purpose of obtaining information about
an applicant’s criminal history. See N.Y.C. Admin. Code §§ 8-107(10)
– 8-107(11).
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41
the applicant may be a caregiver.
66
Employers should instead focus
their interview questions on what skills and experiences applicants
bring to the table.
4. Selection Processes After Interviews
Employers cannot use qualification standards, employment tests, or
other selection criteria that intentionally screen out individuals with
disabilities, or unintentionally screen out or tend to screen out
individuals with disabilities, unless the standard, test, or other
selection criteria, as used by the employer bears a significant
relationship to a significant business objective of the covered entity.
67
As such, selection criteria should be focused on the essential
requisites of the job. Selection criteria that do not concern an
essential job function do not bear a significant relationship to a
significant business objective. Employers are also required to provide
reasonable accommodations for applicants during pre-employment
testing.
68
Example of Lawful Pre-Employment Test
Applicants for an accounting position may be required to take a
test of accounting knowledge. However, the employer must
provide reasonable accommodations if necessary, such as
providing screen reading software for a visually impaired
66
See supra Part II(c), discussing associational disability claims.
67
N.Y.C. Admin. Code § 8-107(17), see infra Part II(b), discussing
neutral policies that have a disparate impact.
68
See infra Part III(a), discussing reasonable accommodations in the
pre-employment context.
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42
applicant, to ensure that all applicants are fairly assessed on the
essential requisites of the job.
Requiring the passage or completion of a medical exam, inquiry, or
test prior to a conditional offer of employment is a violation of the
NYCHRL because it expresses or implies a limitation based on an
individual’s disability.
69
Employers may only require the passage or
completion of a medical exam, inquiry, or test if the requirement is
applied consistently to all prospective employees, after a conditional
offer of employment, regardless of the existence of an actual or
perceived disability. Even if a medical exam, inquiry, or test does not
occur until after a conditional offer, such medical exam, inquiry, or test
may still be unlawful if it is used to screen out applicants with
disabilities where the exclusionary criteria is not job-related and
consistent with business necessity, and performance of the essential
job functions could be accomplished with a reasonable
accommodation.
70
For example, a medical examination for a
physically demanding job that involves danger to the prospective
employee or to the public, such as a firefighter, may be related to the
applicant’s ability to perform the essential requisites of the job. In
contrast, a medical examination for an attorney position would likely
not be related to an applicant’s ability to perform the essential
requisites of the job. Employers are advised to ensure that any
medical information obtained by the employer is kept confidential and
in separate medical files to avoid unnecessarily disclosing an
applicant’s private medical documents and to ensure that managers
and other employees are not accidentally given access to the
information.
69
See N.YC. Admin. Code § 8-107(1)(d); see also 42 U.S.C.
§12112(d)(3).
70
See 29 C.F.R. § 1630.14(b)(3).
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43
5. Procedures Related to Current Employees
The NYCHRL prohibits discrimination against current employees with
disabilities in compensation, terms, conditions, or privileges of
employment,
71
and prohibits most policies or practices that result in a
disparate impact to the detriment of individuals with disabilities.
72
Therefore, employers should generally not ask employees with
disabilities questions about their disabilities or ask them to undergo
disability-related medical examinations, except under one of three
circumstances: 1) when an employer has reason to believe that an
employee’s ability to perform the essential requisites of the job is
impaired by a medical condition; or 2) the employer is concerned that
an employee will pose a direct threat
73
to the safety and security of
themselves, other employees, or the public due to the medical
71
N.Y.C. Admin. Code § 8-107(1)(a)(2).
72
N.Y.C. Admin. Code § 8-107(17)(a).
73
The Equal Employment Opportunity Commission (EEOC)
regulations implementing the ADA define a “direct threat” as “a
significant risk of substantial harm to the health or safety of others that
cannot be eliminated or reduced by reasonable accommodation.” 41
C.F.R. § 60-741.2(e). The regulations further state that “[t]he
determination that an individual with a disability poses a direct threat
shall be based on an individualized assessment of the individual’s
present ability to perform safely the essential functions of the job” and
in determining whether an individual would pose a direct threat,
factors to be considered include: (1) the duration of the risk; (2) the
nature and severity of the potential harm; (3) the likelihood that the
potential harm will occur; and (4) the imminence of the potential harm.
Id.
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44
condition;
74
or (3) the employer is engaging in a cooperative dialog to
determine whether a reasonable accommodation should be provided
for the employee.
Employers may make disability-related inquiries or require a medical
exam when an employee who has been on leave for a medical
condition seeks to return to work, if an employer has a reasonable
belief that an employee’s ability to perform essential requisites of the
job may be impaired by a medical condition or that they may pose a
direct threat due to a medical condition. Any inquiries or examination,
however, must be limited in scope to what is needed to make an
assessment of the employee’s ability to work.
75
Employers that require all employees to undergo periodic medical
examinations in the regular course of business may only do so in
limited circumstances. Specifically, such periodic medical
examinations must be narrowly focused on the employee’s ability to
perform the essential requisites of the job.
76
Such periodic medical
examinations must be administered to all employees in the same
74
See U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance:
Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans With Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html#9.
75
See id.
76
See id. Any medical information obtained by the employer during
periodic medical examinations or in any other context, such as a
request for reasonable accommodations, should be kept confidential
and in separate medical files to avoid unnecessarily disclosing an
applicant’s private medical documents and to ensure that managers
and other employees are not accidentally given access to the
information.
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45
manner and cannot be administered in such a way that they target
employees with disabilities.
Examples of Medical Examinations for Current Employees
A hazardous waste disposal company may require all its
employees to undergo a yearly physical examination and regular
medical monitoring based on specific exposures. Monitoring
employees’ potential health effects from exposure to toxic
substances and their ability to safely work in sites with specific
exposures are related to their ability to perform the essential
requisites of the job.
A police department cannot require all its employees to
periodically undergo medical testing to determine whether they
are HIV-positive because a diagnosis of that condition alone is
not likely related to officers’ abilities to safely perform the
essential requisites of the job.
An employee has a mental health disability that has caused her to act
erratically in the office and has raised significant and realistic
concerns about the safety of other employees and customers. The
employer determines that, to ensure the safety and security of their
employees and members of the public, it will require that the
employee take leave as an accommodation for her disability and
require a doctor’s note stating that the employee is able to return to
work safely. The employee takes leave for several months to receive
treatment and her medical provider determines that she is able to
safely return to work part-time. The employer determines that a part-
time position is not an undue hardship and the employee returns to
work in a part-time position.
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46
Housing
1. Postings
Under the NYCHRL, it is unlawful for a housing provider to “declare,
print or circulate or cause to be declared, printed or circulated any
statement, advertisement or publication” for “the purchase, rental or
lease of . . . a housing accommodation or an interest therein” which
“expresses, directly or indirectly, any limitation, specification or
discrimination” against individuals with disabilities or “any intent to
make any such limitation, specification or discrimination.”
77
Examples of Unlawful Postings
An advertisement for an apartment that simply states, “no dogs”
would be unlawful under the NYCHRL because it expresses a
limitation, specification, or discrimination against individuals with
service animals and emotional support animals.
An advertisement for an apartment that states, “No HASA
vouchers”
78
would be unlawful under the NYCHRL because it
expresses a limitation, specification, or discrimination against
individuals with HIV/AIDS. Such an advertisement would also
77
N.Y.C. Admin. Code § 8-107(5)(a)(2).
78
HASA is a program administered through the NYC Human
Resources Administration that assists individuals living with AIDS or
HIV illness to live healthier, more independent lives. See N.Y.C.
Human Res. Admin., HIV/AIDS Services,
https://www1.nyc.gov/site/hra/help/hiv-aids-services.page (last visited
Mar. 6, 2018).
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47
violate NYCHRL’s prohibitions against discrimination in housing
based on lawful source of income.
79
2. Applications and Interviews
Under the NYCHRL, it is unlawful for a housing provider to “use any
form of application for the purchase, rental or lease” of “a housing
accommodation or an interest therein or to make any record or inquiry
in conjunction with the prospective purchase, rental or lease of such a
housing accommodation or an interest therein which expresses,
directly or indirectly, any limitation, specification or discrimination”
against individuals with disabilities, or “any intent to make any such
limitation, specification or discrimination.”
80
Therefore, subject to
exceptions described below, it is unlawful for applications or
interviewers to ask housing applicants whether they have a disability,
or whether a person intending to reside in the dwelling has a
disability. Applications and interviews should instead focus inquiries
on an applicant’s ability to meet the requirements of the tenancy.
There are, however, a narrow set of circumstances in which a housing
provider may inquire about a housing applicant’s disability. For
example, if a dwelling is legally available only to persons with a
disability or to individuals with a particular type of disability, a housing
provider may inquire about an applicant’s disability status. Similarly,
housing providers may make inquiries to determine if an applicant
qualifies for housing where a disability is one of the characteristics
that is necessary to qualify for the program, such as NYC Housing
79
See N.Y.C. Admin. Code § 8-107(5)(a)(2).
80
N.Y.C. Admin. Code § 8-107(1)(a)(3).
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48
Connect.
81
The housing provider should not, however, ask applicants
if they have other types of medical conditions. Additionally, if an
applicant’s disability and need for accessible features is not readily
apparent, the housing provider may request reliable information or
documentation of the disability needed to qualify for the housing. In
other circumstances, however, it would be unlawful for housing
providers to require medical documentation. Where a housing
provider is permissibly inquiring about an individual’s disability, the
provider must provide an explanation for why they are requesting this
information. Any medical information obtained by the housing provider
should be kept confidential.
Public Accommodations
1. Postings
Under the NYCHRL, it is unlawful for a place or provider of public
accommodation to “directly or indirectly make any declaration,
publish, circulate, issue, display, post or mail any written or printed
communication, notice or advertisement”
82
that communicates that the
full and equal enjoyment of any of the accommodations would “be
81
NYC Housing Connect has housing lotteries for affordable housing
in New York City. Five percent of developments are set aside for
tenants with mobility impairments and two percent are set aside for
tenants with visual and hearing disabilities. See Affordable/Low-
Income Housing,
NYC.gov, http://www1.nyc.gov/site/mopd/resources/affordable-low-
income-housing.page (last visited Mar. 6, 2018).
82
N.Y.C. Admin. Code § 8-107(4)(a)(2).
NYC Commission on Human Rights
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NYC.gov/HumanRights | @NYCCHR
49
refused, withheld from, or denied to any person”
83
on account of their
disability or that the patronage of an individual with a disability is
“unwelcome, objectionable, not acceptable, undesired, or
unsolicited.”
84
Example of an Unlawful Posting
A sign on the window of a restaurant that simply states “no dogs”
would be unlawful under the NYCHRL because it expresses that
the accommodations would be denied to a person with a service
animal, or that an individual with a service animal would be
unwelcome. Instead, the sign should say, for example, “Service
animals welcome; unfortunately, no other animals allowed.”
2. Applications and Interviews
The NYCHRL prohibits a place or provider of public accommodation
from “directly or indirectly making any declaration, or publishing,
circulating, issuing, displaying, posting or mailing any written or
printed communication, notice or advertisement” that communicates
that the patronage of an individual with a disability is “unwelcome,
objectionable, not acceptable, undesired, or unsolicited.”
85
Therefore,
where public accommodations have application and interview
processes (for example, for programs, classes, or schools),
applications or interviews that convey to applicants with disabilities
that they are unwelcome, undesired, or unacceptable would violate
the NYCHRL.
83
N.Y.C. Admin. Code § 8-107(4)(a)(2)(a).
84
N.Y.C. Admin. Code § 8-107(4)(a)(2)(b).
85
N.Y.C. Admin. Code § 8-107(4)(a)(2).
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50
Examples of Unlawful Applications and Interviews
A parent fills out a form to enroll her child in summer day camp.
The form includes a question asking the parent to identify
whether the child has a disability, allergies, and/or requires any
medications. Under the question, the form states, “While our
program is not equipped to provide services to children with
disabilities, we will provide you with references to other programs
that may better suit your needs.” This would be unlawful under
the NYCHRL. A form that inquires about disabilities, allergies,
and/or requirements regarding medication should clarify that
such information is not being used to exclude anyone and
recognize the duty to provide reasonable accommodations. For
example, the form could say that the provider asks for medical
information in order to accommodate the needs of all children to
the best of their ability.
An individual with a mobility disability asks to meet with a
membership advisor to fill out an application for a gym
membership. The employee discourages the individual from
applying based on assumptions they have made about the
individual’s abilities. This would be unlawful under the NYCHRL
because it communicates that the individual is unwelcome.
However, the membership advisor may inquire about whether
the individual may need accommodations to provide the
individual with access to the facilities or activities the gym offers.
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51
Reasonable Accommodations in
Employment, Housing, and Public
Accommodations Based on Disability
Under the NYCHRL, covered entities must make reasonable
accommodations to enable individuals with disabilities “to satisfy the
essential requisites of a job or enjoy the right or rights in question
provided that the disability is known or should have been known by
the covered entity.”
86
Under the law, all accommodations are
reasonable unless a covered entity shows that the requested
accommodation would cause it an “undue hardship.”
87
This standard
is more protective than the ADA, FHA, and the New York State
Human Rights Law and does not require that the employee, tenant, or
customer prove that the reasonable accommodation is readily
achievable, necessary, or does not pose an undue hardship.
88
Rather,
86
N.Y.C. Admin. Code § 8-107(15)(a).
87
N.Y.C. Admin. Code § 8-102(18); see infra Part IV(c)(i) for a
discussion about undue hardship.
88
The New York State Human Rights Law places the burden on
employees seeking reasonable accommodations to show that “upon
the provision of reasonable accommodations, the employee could
perform the essential functions of his job.” See N.Y. Exec. Law §
292(21-e); Romanello v. Intesa Sanpaolo, S.P.A., 22 N.Y.3d 881, 884
(2013). Both the Fair Housing Act and the New York State Human
Rights Law expect residents to show that modifications are
“necessary,” and even then, only obligate a landlord to “permit”
reasonable modifications, not to provide them. See 42 U.S.C.A. §
3604(f)(3)(A); N.Y. Exec. Law § 296(18).
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52
the employee, tenant, or customer must only establish their prima
facie case: (1) that they have a disability; (2) that the covered entity
knew or should have known about the disability; (3) that an
accommodation would enable the employee, tenant, or customer to
perform the essential requisites of the job or enjoy the rights in
question; and (4) that the covered entity failed to provide an
accommodation.
89
The burden then shifts to the covered entity to
show that the proposed reasonable accommodation would cause
them an undue hardship. Each interaction regarding a reasonable
accommodation must be considered on a case-by-case basis given
the needs of the individual and the unique circumstances of the
covered entity. For example, covered entities may consider the
duration that the accommodation is needed in determining whether
the time and expense to provide the accommodation would cause an
undue hardship. In addition, the type of service a public
accommodation provides and the community it serves will be
considered in determining whether a public accommodation was on
notice that a reasonable accommodation should have been made to
accommodate the needs of their served population. The covered
entity is responsible for the cost of providing reasonable
accommodations.
Process for Requesting or Offering Reasonable
Accommodations
89
See In re Comm’n on Human Rights ex rel. Stamm v. E&E Bagels,
OATH Index No. 803/14, Dec. & Order, 2016 WL 1644879, at *6 (Apr.
21, 2016).
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53
1. Initiating a Cooperative Dialogue
Under the NYCHRL, the first step in providing a reasonable
accommodation to an individual with a disability is to begin a
cooperative dialogue that assesses the needs of the individual.
90
Local Law No. 59 (2018), effective on October 15, 2018, makes it
unlawful for a covered entity to fail to engage in a cooperative
dialogue “with an individual who has requested an accommodation or
who the covered entity has notice may require such an
accommodation.”
91
The “cooperative dialogue” is “the process by which a covered entity
and a person who is entitled to, or may be entitled to an
accommodation under the law, engage in good faith in a written or
oral dialogue concerning the person’s accommodation needs;
potential accommodations that may address the person’s
accommodation needs, including alternatives to a requested
accommodation; and the difficulties that such potential
accommodations may pose for the covered entity.”
92
A cooperative
dialogue involves an evaluation of the individual’s needs and
consideration of the possible accommodations for the individual that
would allow them to perform the essential requisites of the job or
enjoy the right or rights in question, without creating an undue
hardship for the covered entity.
When a covered entity learns, either directly or indirectly, that an
individual requires an accommodation due to their disability, the
covered entity has an affirmative obligation to engage in a cooperative
90
Local Law No. 59 § 1 (2018); N.Y.C. Admin. Code § 8-102.
91
N.Y.C. Admin. Code § 8-102.
92
Id.
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54
dialogue with the individual. The NYCHRL imposes a duty on covered
entities to provide reasonable accommodations not only when an
individual’s disability is known,
93
but also when the covered entity
“should have…known” about the individual’s disability,
94
regardless of
whether the individual requested an accommodation. For example, if
an employer has knowledge that an employee’s performance at work
is diminished or that their behavior at work could lead to an adverse
employment action and has a reasonable basis to believe that the
issue is related to a disability, the employer must initiate a cooperative
dialogue with the employee to explore whether the employee needs
an accommodation to continue performing the essential requisites of
the job. In doing so, the employer should not ask the employee if the
employee has a disability,
95
but may ask if there is anything going on
that the employer can help with, inform the employee that various
types of support are available, including reasonable accommodations,
to enable employees to satisfy the essential requisites of the job, and
remind them of workplace policies and procedures for requesting a
reasonable accommodation. The employer should do so as a way to
open the conversation and invite the employee to feel comfortable in
making a request. If an employee chooses not to disclose that they
have a disability in that conversation, the employer has met their
obligation to initiate a cooperative dialogue.
93
By contrast, the New York State Human Rights Law discusses
reasonable accommodations in the context of “known physical or
mental limitations,” and “known disabilities.” See N.Y. Exec. Law §
296(3)(a).
94
N.Y.C. Admin. Code § 8-107(15)(a).
95
See infra Part III for a discussion on prohibited disability-related
inquiries.
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55
If a covered entity approaches an individual to initiate a cooperative
dialogue and the individual does not reveal that they have a disability
in that conversation, the individual does not waive their opportunity to
reveal their disability and initiate a cooperative dialogue with the
covered entity at a later time. In addition, it is unlawful to terminate an
employee for failing to disclose their disability status or need for a
reasonable accommodation prior to the offer of employment or for
failing to disclose such information during the interview process.
96
Similarly, a housing provider is not permitted to penalize a prospective
tenant for failing to volunteer information about their disability or need
for a reasonable accommodation at the time of applying for housing.
97
Covered entities should strive to create an environment in which
individuals feel comfortable engaging in the process of requesting an
accommodation by developing a transparent, clear, and fair process.
In order to avoid situations in which covered entities are not sure
whether employees, residents, or customers are aware of their right to
request reasonable accommodations and engage in a cooperative
dialogue, the NYCHRL encourages covered entities to provide notice
or information to employees, residents, and customers detailing their
right to be free from discrimination based on disability. For example,
an employer should include procedures in an employee handbook
that identify staff who will respond to requests for accommodations,
and a landlord should include procedures on their website about how
and where an applicant or resident can request a reasonable
accommodation.
96
Hirschmann v. Hassapoyannes, 11 Misc. 3d 265, 270 (Sup. Ct. N.Y.
Cty. 2005).
97
Hirschmann v. Hassapoyannes, 16 Misc. 3d 1014, 1018–20 (Sup.
Ct. N.Y. Cty. 2007), aff'd, 52 A.D.3d 221, 859 N.Y.S.2d 150 (2008).
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2. Engaging in a Cooperative Dialogue
The purpose of a cooperative dialogue is to ensure that covered
entities understand the individualized
needs of the person with a disability and have the opportunity to
explore the various ways in which they can meet those needs.
Without this type of dialogue, individuals with disabilities and covered
entities may not realize the full universe of available accommodations.
The covered entity need not provide the specific accommodation
sought by the individual making the request so long as they propose
reasonable alternatives that meet the specific needs of the individual
or that specifically address the impairment at issue.
98
A cooperative dialogue involves a covered entity communicating in
good faith with the individual requesting an accommodation in a
transparent and expeditious manner, particularly given the time-
sensitive nature of many of these requests. If a covered entity offers
an accommodation and the individual with a disability reasonably
determines that the first accommodation offered is not sufficient to
meet their needs, the covered entity has not met their obligation to
engage in the cooperative dialogue. In such circumstances, the
covered entity must continue to engage in a conversation with the
individual to determine if there are other alternatives that would meet
their needs. However, both parties must engage in the cooperative
dialogue “in good faith” which means that an individual with a
disability cannot simply reject an offered accommodation that would
be sufficient to meet their needs because it is not their preferred
accommodation. The covered entity should focus on understanding
98
See Cruz v. Schriro, 51 Misc. 3d 1203(A) (Sup. Ct. N.Y. Cty. 2016)
(“[A]n employer is not obligated to provide a disabled employee with
the specific accommodation that the employee requests or prefers...”).
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57
the need for the request and how the request can be accommodated.
The dialogue may be in person, in writing, by phone, or via electronic
means. If a covered entity does not have enough information to
understand the individual’s needs to offer an appropriate
accommodation, it may ask for additional information about the
specific impairment.
In evaluating whether or not a covered entity has engaged in a
cooperative dialogue in good faith with an individual who requests an
accommodation, the Commission will consider various factors,
including, without limitation: (1) whether the covered entity has a
policy informing employees, residents, or customers how to request
accommodations based on disability;
99
(2) whether the covered entity
responded to the request in a timely manner in light of the urgency
and reasonableness of the request; and (3) whether the covered
entity sought to obstruct or delay the cooperative dialogue or in any
way intimidate or deter the individual from requesting the
accommodation. An indeterminate delay may have the same effect as
an outright denial.
100
99
It is a best practice for covered entities to have a written policy that
they disseminate to all employees, residents, etc.
100
See Logan v. Matveevskii, 57 F. Supp. 3d 234 (S.D.N.Y. 2014)
(finding that under the Fair Housing Act, a refusal of a request for a
reasonable accommodation can be actual or constructive, and
therefore an indeterminate delay has the same effect as an outright
denial).
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58
a. Applicants for Employment, Housing, and Programs that
Are Public Accommodations
As discussed in Part III, the NYCHRL expressly prohibits housing
providers and employers from making any inquiries in connection with
prospective employment or the prospective purchase, rental, or lease
of a housing accommodation that express, directly or indirectly, any
limitation, specification, or discrimination against an individual with a
disability. Similarly, to the extent that public accommodations have
applications or interviews for their programs, such as some drug
treatment programs or schools, providers cannot communicate that
applicants with disabilities are unwelcome, undesired, or
unacceptable. However, when an individual makes a request for a
reasonable accommodation during the application process, a covered
entity is entitled to obtain information that is necessary to evaluate if
the requested accommodation is being sought due to a disability.
101
If
a disability is readily apparent—for example, if an individual
requesting a ramp is in a wheelchair—formal medical documentation
or additional information would not be necessary to evaluate the
accommodation. Therefore, a covered entity may make inquiries that
will allow them to assess the individual needs of the requester and the
reasonableness of the request as part of the cooperative dialogue.
101
See U.S. Dep’t of Hous. & Urban Dev. & U.S. Dep’t of Justice,
Joint Statement: Reasonable Accommodations Under the Fair
Housing Act (May 17, 2004),
https://www.hud.gov/sites/documents/DOC_7771.PDF; U.S. Equal
Emp. Opportunity Comm’n, Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the
Americans With Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html.
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59
Examples
An employer is impressed with an applicant’s resume and
contacts the applicant to schedule her for an interview. The
applicant, who is deaf, requests a reasonable accommodation
for her interview. The employer engages in a cooperative
dialogue—by asking the applicant what she needs in order to be
able to participate in the interview. The applicant explains that
she will need a sign language interpreter. The employer
identifies a service that provides sign language interpreters via
Skype, and determines that the cost to contract with the service
for the interview would not pose an undue hardship to the
employer. The applicant agrees that a sign language interpreter
via Skype would be sufficient for her to participate in the
interview.
A housing applicant with an apparent vision disability requests
that the leasing agent provide her with assistance in filling out a
rental application form as a reasonable accommodation for her
disability. The applicant’s disability and her need for the
requested accommodation are readily apparent because she
uses a walking cane to get around, so the housing provider
should not make further inquiries or request medical
documentation.
102
Asking the applicant to provide information
relating to her apparent disability could constitute harassment.
102
See U.S. Dep’t of Hous. and Urban Dev. & U.S. Dep’t of Justice,
Joint Statement: Reasonable Accommodations Under the Fair
Housing Act (May 17, 2004),
https://www.hud.gov/sites/documents/DOC_7771.PDF.
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b. Current Employees, Residents, and Participants in
Programs/Clubs
103
When an individual requests an accommodation, a covered entity
may ask the individual to provide medical documentation that is
sufficient to substantiate that the requester has a disability, identifies
the functional limitation due to the disability, and explains the need for
the requested accommodation.
104
Unless the exact diagnosis is
necessary to determine what accommodation may be needed, a
covered entity cannot require that the specific disability or diagnosis
be disclosed and must only request information or medical
documentation related to the impairment and need at issue. The
covered entity may not ask for unrelated documentation, such as
complete medical records.
105
Any information or documentation
shared must be kept confidential.
103
Under the NYCHRL, a “club” which “proves that it is in its nature
distinctly private” is not included in the definition of “place or provider
of public accommodation.” See N.Y.C. Admin. Code § 8-102(9); see
47 R.C.N.Y. § 2-01.
104
See U.S. Equal Emp. Opportunity Comm’n, Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans With Disabilities Act (ADA) (July 27,
2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html. An
employer may not require an employee to provide medical
confirmation of pregnancy, childbirth, or related medical condition,
unless it is a pregnancy-related disability.
105
See U.S. Equal Emp. Opportunity Comm’n, Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations of
Employees Under the Americans With Disabilities Act (ADA) (July 27,
2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html.
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Example
An employee who has exhausted all of his available sick leave
calls his supervisor to inform him that he had a severe pain
episode due to his sickle cell anemia, is in the hospital, and
requires additional time off. Prior to this call, the supervisor was
unaware of the employee’s medical condition. The supervisor
should initiate a cooperative dialogue with the employee to
assess his individual needs and the accommodation requested.
In doing so, the supervisor may ask the employee to provide
information or medical documentation to substantiate that the
employee has a disability and provide information on how long
he may be absent from work.
106
In some circumstances where an individual’s disability and the need
for the requested accommodation is readily apparent or otherwise
known to the covered entity, or to the person making the decision
regarding the request for an accommodation, making additional
inquiries or asking for medical documentation about the requester’s
disability or the disability-related need for the accommodation may
constitute harassment.
107
106
See id.
107
See U.S. Dep’t of Hous. and Urban Dev. & U.S. Dep’t of Justice,
Joint Statement: Reasonable Accommodations Under the Fair
Housing Act (May 17, 2004),
https://www.hud.gov/sites/documents/DOC_7771.PDF; U.S. Equal
Emp. Opportunity Comm’n, Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the
Americans With Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html.
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Example
An employee who has a disability that causes him to rely on a
wheelchair approaches his supervisor with a request for an
accommodation—that a temporary ramp be installed where there
are steps to access the conference room. The supervisor is the
decision-maker regarding the request for an accommodation.
The supervisor should not ask the employee for additional
information or medical documentation to prove that he has a
disability. As his disability and need for a reasonable
accommodation are apparent, asking for additional information
or documentation could constitute harassment.
If the requester’s disability is known or readily apparent to the
provider, but the need for the accommodation is not readily apparent
or known, the provider should only request information that is
necessary to evaluate how the accommodation would ameliorate the
effects of the person’s disability.
108
Example
A tenant informs the housing provider that he wishes to keep an
emotional support dog in his unit, and asks for an exception to
108
See U.S. Dep’t of Hous. and Urban Dev. & U.S. Dep’t of Justice,
Joint Statement: Reasonable Accommodations Under the Fair
Housing Act (May 17, 2004),
https://www.hud.gov/sites/documents/DOC_7771.PDF; U.S. Equal
Emp. Opportunity Comm’n, Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the
Americans With Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html.
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the “no pets” policy as a reasonable accommodation. The need
for an emotional support animal is not apparent to the housing
provider. The housing provider may therefore make inquiries of
the tenant that will provide information that confirms that the dog
ameliorates the effects of the tenant’s disability.
109
While covered entities may require medical documentation to support
a request for an accommodation, they cannot require a specific type
or form of documentation. Medical documentation should be
considered broadly. For example, a covered entity should not reject a
note from a medical professional simply because it is handwritten,
because it is not printed on letterhead, because it is not provided by
the individual’s long-term care provider, or because it is from an
alternative medicine professional where such medical professional is
the appropriate specialist for the impairment at issue. Covered entities
should focus on the content of the medical documentation and not its
form. If a covered entity has reason to believe that the provided
documentation is insufficient, it should not reject the accommodation
request, but should instead request additional documentation, or,
upon the consent of the individual, speak with the health care provider
who provided the documentation before denying the request based on
insufficient documentation. A covered entity must allow an individual
to submit sufficient supplemental written verification should an
109
See U.S. Dep’t of Hous. and Urban Dev. & U.S. Dep’t of Justice,
Joint Statement: Reasonable Accommodations Under the Fair
Housing Act (May 17, 2004),
https://www.hud.gov/sites/documents/DOC_7771.PDF; U.S. Equal
Emp. Opportunity Comm’n, Enforcement Guidance: Disability-Related
Inquiries and Medical Examinations of Employees Under the
Americans With Disabilities Act (ADA) (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html.
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individual not want the covered entity speaking with their medical
provider.
c. Customers and Visitors to Public Accommodations
Places of public accommodation should make every effort to ensure
that they are accessible and engage with customers in a cooperative
dialogue to ensure they are providing reasonable accommodations.
While the determination of whether a provider of public
accommodation has failed to provide reasonable accommodations to
individuals with disabilities involves an individualized assessment of
the undue hardship to the covered entity, the Commission will
generally consider the following factors in assessing reasonableness
and the adequacy of the cooperative dialogue: the nature of the
relationship between the covered entity and the individual (a longer-
term relationship such as a regular client, student, member, or patient,
or a shorter-term relationship, such as a one-time customer); whether
the covered entity knew or should have known of the individual’s
disability; the nature and duration of the interaction; and the
accommodation requested. For example, a deli would generally not
be required to provide a qualified sign language interpreter for a
customer who is deaf during a short and relatively simple
conversation regarding a purchase. Instead, the deli should find an
alternative way to effectively accommodate the customer, such as
exchanging written notes. A hospital, by comparison, must provide a
qualified sign language interpreter to a patient who is deaf as a
reasonable accommodation because, in order for a patient in a
hospital setting to “enjoy the right or rights in question,”
110
they require
in-depth, time-sensitive, and nuanced communications with medical
110
N.Y.C. Admin. Code § 8-107(15)(a).
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personnel. A patient will therefore not be able to enjoy the right or
rights in question without an interpreter. However, there are certain
types of accommodations that all public accommodations must
consider regardless of an individual customer’s or member’s need.
For example, all public accommodations should evaluate whether it
will be an undue hardship to install a ramp at the entrance of their
facility; and hospitals should similarly be prepared to provide sign-
language interpretation by video or in-person interpretation.
3. Concluding the Cooperative Dialogue
A cooperative dialogue is ongoing until one of the following occurs: (1)
a reasonable accommodation is granted; or (2) the covered entity
reasonably arrives at the conclusion that: (a) there is no
accommodation available that will not cause an undue hardship to the
covered entity; (b) a reasonable accommodation was identified that
meets the individual’s needs but the individual did not accept it and no
reasonable alternative was identified during the cooperative dialogue;
or (c) in the case of an employer, that no accommodation exists that
will allow the employee to perform the essential requisites of the job.
In the context of employment and housing, Local Law No. 59 (2018)
requires that “the covered entity shall provide any person requesting
an accommodation who participated in the cooperative dialogue with
a written final determination identifying any accommodation granted
or denied.”
111
There is no such requirement in the public
accommodations context.
111
Local Law No. 59 § 2 (2018); N.Y.C. Admin. Code § 8-107(28)(d)
(“Upon reaching a final determination at the conclusion of a
cooperative dialogue pursuant to paragraphs (a) and (c) of this
subdivision, the covered entity shall provide any person requesting an
accommodation who participated in the cooperative dialogue with a
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If an individual with a disability rejects an accommodation offered by
the covered entity, the covered entity should continue to engage with
the individual to identify alternatives. However, if the individual rejects
accommodations offered that would not cause an undue hardship to
the covered entity and would meet the individual’s needs and/or
would allow the employee to perform the essential requisites of the
job and is unable or unwilling to propose any alternative options that
would address the individual’s needs, the covered entity may
conclude the cooperative dialogue. If there are two possible
reasonable accommodations and one costs more or is more
burdensome than the other, the covered entity may choose the less
expensive or burdensome accommodation. If more than one
accommodation is effective, the preference of the individual with the
disability should be given primary consideration, but the covered
entity has the ultimate discretion to choose between effective
accommodations.
112
Once a conclusion is reached, either to offer an accommodation, or
that no accommodation can be made, a covered entity must promptly
notify the individual seeking an accommodation of the determination.
Housing providers and employers must notify the individual in writing
that the cooperative dialogue has concluded. As an individual’s
condition changes over time, an individual may make new requests
for accommodations. Each time an individual makes a new request,
written final determination identifying any accommodation granted or
denied.”).
112
U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (Oct. 17, 2002),
https://www.eeoc.gov/policy/docs/accommodation.html.
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the covered entity must engage in a cooperative dialogue with the
individual. Where an accommodation proposed by an individual with a
disability is immediately agreed to by a covered entity, the cooperative
dialogue will consist solely of the individual with a disability making
the request and the covered entity granting the accommodation; even
in these circumstances, documentation of the final determination is
still required in the cases of employers and housing providers.
4. Cooperative Dialogue Sample Scenarios
Examples in Employment
An employee has exhausted her paid sick leave and has been
on unpaid leave as an accommodation to recover from surgery
for four weeks. The employee notifies her employer that she will
be able to return to work in one week. Her employer extends her
leave by the additional week and requests documentation from
the employee’s doctor confirming that she is fit to return to work,
and provides the employee with confirmation of the one-week
extension by email to conclude the cooperative dialogue. The
employee provides the documentation when she returns to the
workplace the following week.
An employee experiences complications related to multiple
sclerosis and requires several months off to recuperate and
complete intensive physical therapy at a rehabilitation facility.
The employee is eligible for twelve weeks of FMLA leave and
uses all of it. At the conclusion of the twelve weeks, the employer
asks the employee if she is able to return to work. She is not,
and tells the employer that she needs approximately four more
weeks. The employer determines that holding the employee’s
position for an additional period of approximately four weeks is
not an undue hardship and tells the employee to check in with
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her in two weeks to share any updates on her expected return
date. The employer memorializes this communication in writing
and provides a copy to the employee to conclude the
cooperative dialogue until the next conversation.
An employer notices that an employee has been struggling to
complete tasks that the employee previously had no trouble
performing and appears tired and withdrawn. The employer
hears from a co-worker that the employee is dealing with a
health issue and approaches the employee and initiates a
cooperative dialogue. The employer says, “I have noticed you
are struggling to finish your tasks as quickly as usual, is there
something I can do to help?” The employee says no. The
problem persists, and the employer again approaches the
employee and asks if he may need an accommodation, and
reminds the employee of the accommodation request policy. The
employer tells the employee that he will check in again in a week
or so, and reiterates that he will work to accommodate or
otherwise support the employee if there is anything going on.
One week later, the employer tells the employee that the
employee will be written up if the behavior does not improve and
again asks if the employee needs assistance and offers to set up
a meeting to discuss the issue. The employee declines, and after
another week, the employer issues a disciplinary notice. The
employer attempted to engage the employee in a cooperative
dialogue because he believed the employee may have needed
accommodations based on a disability. Despite repeated
attempts to engage the employee in a cooperative dialogue, the
employee was not responsive. The employer does not need to
provide the employee with written notice of the conclusion of the
cooperative dialogue because the employer attempted to engage
in a cooperative dialogue with the employee but he declined.
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Under these circumstances, the employer was justified in taking
disciplinary action.
An employee who works in a specific physically-demanding
position is placed on light duty as an accommodation after an off-
the-job injury causes a herniated disk in his back. His employer
requires that he report to an employer-specified physician, at the
employer’s expense, every two weeks to determine whether he
is able to return to regular duty. The physician reports to the
employer regarding the employee’s ability or inability to return to
his regular duty and the employer keeps the employee on light
duty until the physician determines he is able to return to regular
duty. The physician provides the employer with a note updating
the employer on the employee’s status, and the employer
communicates all updates to the employee in writing. This
process serves as a periodic cooperative dialogue.
An employee has a diagnosed anxiety disorder and informs his
supervisor that a particular co-worker’s behavior, which involves
speaking very loudly and sometimes aggressively to him,
exacerbates his condition. The employee has requested to be
relocated to a different floor within the office to avoid interacting
with this particular employee. The employer asks the employee
to provide a doctor’s note regarding the need for the
accommodation, which the employee provides. Interactions with
the co-worker are not required for the employee to successfully
complete his job responsibilities as they work in different
departments. The employer determines that relocating the
employee to another floor is not possible given office space
constraints, but offers to relocate the employee to a space far
from his co-worker on the same floor. The employee rejects the
accommodation, insisting that he must be moved to a different
floor. The employer again determines that moving the employee
to a different floor would cause significant disruption for many
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other workers because of limited space. The employee decides
to stay where he is. The employer sends the employee a note
concluding the cooperative dialogue and stating that no
accommodation was reached. The employer has met his
obligation to engage in the cooperative dialogue and offer a
reasonable accommodation.
An employee is on medication for depression that causes
excessive tiredness. The employee’s supervisor has noticed the
employee has fallen asleep on the job twice. After the second
incident, the employee informs his supervisor that he is on
medication for an illness that causes excessive tiredness. The
supervisor asks what, if anything, they can do to help prevent
him from falling asleep while working. The employee consults
with his doctor who recommends that the employer adjust his
schedule to allow for a later start time and space for the
employee to rest during his breaks. The supervisor finds that
adjusting the employee’s schedule slightly and providing him
with a quiet space to rest during his breaks is not an undue
hardship. The employer provides the employee with a letter
summarizing the accommodation and concluding the cooperative
dialogue.
An employee requests an accommodation of time off for gender
confirmation surgery and recuperation related to a diagnosis of
gender dysphoria.
113
The employee provides her employer with a
113
Some transgender and gender non-conforming individuals have a
diagnosis of gender dysphoria, which qualifies as a disability under
the NYCHRL. See N.Y.C. Comm’n on Human Rights, Legal
Enforcement Guidance on Discrimination on the Basis of Gender
Identity or Expression: Local Law No. 3 (2002); N.Y.C. Admin. Code §
8-102(23), 10 n.17 (revised June 26, 2016),
http://www1.nyc.gov/assets/cchr/downloads/pdf/publications/GenderI
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71
note from her doctor stating the date of the surgery and the
anticipated recovery period. The employer allows the employee
to use her accrued sick time for the surgery and recuperation.
The employee returns to work and requests a schedule
adjustment as an accommodation to go to twice-monthly voice
training appointments with a speech therapist. The employer
determines that a schedule adjustment of two hours twice a
month is not an undue hardship, grants the request, and
provides, via email, confirmation that the accommodation is
granted and the cooperative dialogue has concluded.
An employee with a hearing impairment requests an
accommodation of a headset and amplifier that will enable him to
communicate on office calls with increased volume when using
his phone. The employer provides this accommodation at the
employee’s desk. However, the employee is regularly required to
attend meetings in large conference rooms, where the employee
requires the use of an assistive listening device to participate.
The employee should not have to request an accommodation
every time a meeting is scheduled; instead, either the employer
should ask if there is any other equipment the employee needs
to participate in meetings in the conference room or the
employee can raise the need for additional equipment for the
conference room that he can use for conference room meetings.
A maintenance worker with a mobility impairment is unable to
perform some of the more physically-demanding aspects of her
job, including lifting or pushing items, and standing for long
periods of time. She requests that another worker be assigned to
her worksites to assist her with the more physical aspects of the
job. Her employer cannot afford to pay for another worker to
assist her, because typically workers are placed on small
D_InterpretiveGuide_2015.pdf.
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worksites alone and not in pairs. The employer instead offers to
provide the worker with additional time to complete her tasks by
giving her a lighter schedule, which would also result in a pay
cut. The worker rejects this proposal. The worker then requests
that she be given a desk job at the company instead, but none
are available. Neither the employer nor the worker is able to
propose any additional options that might accommodate the
worker’s needs without imposing an undue hardship. As a result,
the employer has met its obligation to engage in the cooperative
dialogue and informs the worker in writing that they cannot
accommodate her request.
Examples in Housing
A landlord receives complaints about a long-time resident’s
potential hoarding tendencies. The resident’s neighbors are
complaining about an odor and have also seen glimpses inside
the apartment when he opens the door. The landlord approaches
the resident, notifies him of the other residents’ complaints, and
asks if she can inspect the apartment. The resident says no. The
landlord states that she will need to inspect the apartment, but
offers to give the resident a reasonable amount of time to
prepare and asks if the resident may need a reasonable
accommodation to prepare the apartment for inspection. This
constitutes an appropriate initiation of a cooperative dialogue
with the tenant.
A tenant with an emotional support animal consistently pays her
rent late. The landlord approaches the tenant to inquire if there is
a reason why the rent is late so frequently. The tenant replies
that her depression and anxiety occasionally result in her being
unable to get out of bed for days at a time and she cannot get to
the mailbox to send in the rent. The landlord offers several
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options to the tenant to make the rent payment easier: the tenant
can pay the rent online, the landlord can offer to have someone
pick up the check each month from the tenant’s apartment, or
the landlord agrees to waive any incidental late fees as an
accommodation. The tenant decides that it is easiest for her pay
her rent online, and the landlord provides instructions on how to
do so. The landlord sends the tenant a note saying that they
reached a reasonable accommodation and the cooperative
dialogue has concluded.
Examples in Public Accommodations
A parent is hard of hearing and requests a Computer Assisted
Real-time Translation (CART)
114
system for PTA meetings at his
child’s school. The school communicates with the parent to
create a process for ensuring that a CART system will be
provided at all meetings he intends to attend. The parent agrees
to notify the parent coordinator one week in advance of each
meeting he will attend to provide the school with adequate time
to confirm a CART system is in place for the meeting. The school
has satisfied its obligation to engage in the cooperative dialogue.
A deli has aisles that are too narrow to accommodate individuals
with certain mobility assistive devices. When a customer using a
walker enters the deli to make a few purchases, the manager
offers to have a deli employee collect the items and bring them
to the customer at the front. The customer agrees and is able to
pay for her purchases at the register near the entrance. While
114
CART instantly transforms speech into text. See Job
Accommodation Network, CART Services,
http://soar.askjan.org/Solution/307 (last visited Mar. 19, 2018).
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the cooperative dialogue ultimately allowed the customer to
receive services in this particular instance, this does not preclude
future claims based on failure to accommodate if the deli does
not proactively assess the feasibility of making the store actually
accessible, now that it has been put on notice.
A government program that administers rental subsidies to
people with disabilities requires that the recipients find an
apartment within a specified period of time before the subsidy
expires. A program recipient with a mobility disability is unable to
visit apartments to find a placement without assistance. The
government program offers to provide the recipient with
assistance in securing housing and additional time to do so. The
program recipient agrees to the accommodation. The program
has met its obligation to engage in the cooperative dialogue.
Failure to Engage in the Cooperative Dialogue in
Employment, Housing, and Public
Accommodations
Pursuant to Local Law No. 59 (2018), a covered entity’s failure to
engage in a cooperative dialogue with an individual requesting an
accommodation is an independent violation of the NYCHRL.
115
Without engaging in a cooperative dialogue, a covered entity will be
unable to completely assess the individual needs of the person
requesting an accommodation.
115
Local Law No. 59 (2018).
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Examples of Failure to Engage in a Cooperative Dialogue
An employee injures herself on the job. Her employer removes
the employee from her position and puts her on unpaid leave,
without engaging with the employee to determine whether
unpaid leave was an appropriate accommodation for the
employee’s specific condition.
116
A landlord ignores his tenant’s repeated requests that grab bars
be installed in her shower as an accommodation for her
disability.
Failure to Provide Reasonable Accommodations
for Disabilities in Employment, Housing, and Public
Accommodations
The NYCHRL requires covered entities to provide reasonable
accommodations for an individual’s disability that will allow the
individual to enjoy the right or rights in question or perform the
essential requisites of the job, so long as the covered entity knew or
should have known of the individual’s disability. Reasonable
accommodation is defined as such accommodation that can be made
that shall not cause undue hardship in the conduct of the covered
entity’s business.
117
116
See Miloscia v. B.R. Guest Holdings, LLC, 33 Misc. 3d 466, 476
(Sup. Ct. N.Y. Cty. 2011), aff’d in part, modified in part, 94 A.D.3d 563
(1st Dep’t 2012).
117
See N.Y.C. Admin. Code § 8-102(18).
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To establish discrimination on the basis of a covered entity’s failure to
provide a reasonable accommodation, the aggrieved individual must
show that: (1) they have a disability; (2) the covered entity knew or
should have known of the disability; (3) an accommodation would
enable the individual to enjoy the right or rights in question, or perform
the essential requisites of their job; and (4) the covered entity failed to
provide a reasonable accommodation.
118
The covered entity may
then, as a defense, establish that the potential accommodation poses
an undue hardship and no other accommodation was available that
would not pose an undue hardship on the covered entity and that
would allow the individual to enjoy the rights in question.
119
Although a
failure to provide a reasonable accommodation is its own distinct
claim under the NYCHRL, depending on the specific facts of the case,
a failure to accommodate could also implicate a disparate treatment
claim.
Defenses to a Claim of Failure to Provide
Reasonable Accommodations for Covered Entities
If a covered entity fails to provide an accommodation, it may defend
its decision by asserting that there is no accommodation available that
will meet the needs of the individual with the disability that does not
pose an undue hardship, or, in the employment context, would allow
the employee to perform the essential functions of the job. It is not a
118
See N.Y.C. Admin. Code § 8-107(15); In re Comm’n on Human
Rights ex rel. Stamm v. E&E Bagels, OATH Index No. 803/14, Dec. &
Order, 2016 WL 1644879, at *6 (Apr. 21, 2016).
119
See infra Part IV(d), discussing defenses to claims of failure to
provide reasonable accommodations.
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defense to a reasonable accommodation claim that the covered entity
engaged in a cooperative dialogue.
120
When the Commission’s Law Enforcement Bureau is investigating a
covered entity based on a claim of failure to provide a reasonable
accommodation, the covered entity is strongly encouraged to
immediately cooperate with the LEB’s investigation, which may
resolve through negotiation to find an accommodation that meets the
complainant’s needs and does not pose an undue hardship to the
covered entity. Such negotiation could serve to mitigate penalties and
damages.
1. Undue Hardship
“Reasonable accommodation” is defined in the NYCHRL as an
accommodation that can be made that does not cause undue
hardship in the conduct of the covered entity’s business. The
concepts of “reasonable accommodation” and “undue hardship” are
inextricably intertwined in the NYCHRL. All accommodations are
presumed reasonable unless the covered entity shows that they pose
an undue hardship.
121
The covered entity has the burden to prove
120
Local Law No. 59 (2018).
121
N.Y.C. Admin. Code § 8-102(18) (“The term ‘reasonable
accommodation’ means such accommodation that can be made that
shall not cause undue hardship in the conduct of the covered entity’s
business.”); see Phillips v. City of N.Y., 66 A.D.3d 170, 185 (1st Dep’t
2009) (“Under the City HRL . . . the concepts of ‘reasonable
accommodation’ and ‘undue hardship’ are inextricably intertwined. An
accommodation under Administrative Code § 8–102(18) cannot be
considered unreasonable unless the covered entity proves that the
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undue hardship by showing the unavailability of a reasonable
accommodation.
122
Evidence of undue hardship is assessed by a
preponderance of the evidence standard.
123
There is no accommodation—whether indefinite leave or any other
need created by a disability—that is categorically excluded from the
universe of reasonable accommodations under the NYCHRL because
a covered entity must assess on a case-by-case basis whether a
particular accommodation would cause undue hardship.
124
In making a determination of undue hardship, the NYCHRL sets forth
the following non-exhaustive list of factors:
a) the nature and cost of the accommodation;
b) the overall financial resources of the facility or the facilities
involved in the provision of the reasonable accommodation;
the number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility;
accommodation would cause undue hardship.”), overruled on other
grounds by Jacobsen v. N.Y.C. Health & Hosps. Corp., 22 N.Y.3d 824
(2014).
122
N.Y.C. Admin. Code § 8-102(18).
123
See In re Comm’n on Human Rights ex rel. Agosto v. Am.
Construction Assocs., OATH Index No. 1964/15, Am. Dec. & Order,
2017 WL 1335244, at *5 (Apr. 5, 2017).
124
Phillips v. City of N.Y., 66 A.D.3d 170, 182 (1st Dep’t 2009),
overruled on other grounds by Jacobsen v. N.Y.C. Health & Hosps.
Corp., 22 N.Y.3d 824 (2014); Forgione v. City of N.Y., No. 11 Civ.
5248, 2012 WL 4049832, at *9 (E.D.N.Y. Sept. 13, 2012).
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c) the overall financial resources of the covered entity; the
overall size of the business of a covered entity with respect to
the number of its employees; the number, type, and location
of its facilities; and
d) the type of operation or operations of the covered entity,
including the composition, structure, and functions of the
workforce of such entity; the geographic separateness,
administrative, or fiscal relationship of the facility or facilities in
question to the covered entity.
125
A covered entity cannot refuse to provide an accommodation just
because it involves cost. Instead, there will be a consideration of the
overall resources available to the business or agency, including the
entity as a whole, outside resources, and tax incentives. Furthermore,
as undue hardship is assessed on a case-by-case basis, a specific
cost may result in undue hardship for one covered entity, but may not
for another.
126
If a covered entity asserts that providing an
accommodation will cause an undue hardship, it will be expected to
disclose to the Commission financial documents to allow for an
assessment of the alleged financial hardship. Without relevant
financial information, it will be very challenging to make this
assessment, which could result in a finding that the proposed
accommodation is not an undue hardship because the requisite
125
N.Y.C. Admin. Code § 8-102(18).
126
See EEOC, ENFORCEMENT GUIDANCE: REASONABLE
ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH
DISABILITIES ACT, (Oct. 17, 2002),
https://www.eeoc.gov/policy/docs/accommodation.html (“Undue
hardship means significant difficulty or expense and focuses on the
resources and circumstances of the particular employer in relationship
to the cost or difficulty of providing a specific accommodation.”).
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financial showing to establish otherwise was not made. Further,
failure to provide relevant financial information may result in an
adverse inference against the covered entity with respect to the
determination of civil penalties.
A covered entity need not provide the specific accommodation
sought; rather, a covered entity may propose reasonable alternatives
that meet the specific needs of the person with the disability or that
specifically address the limitation at issue.
127
Moreover, a covered
entity is not required to substantially change its business processes or
structure to afford an accommodation; if such a change is required, it
will likely cause an undue hardship. Similarly, a covered entity will not
be required to take extraordinary financial measures, such as closing
business operations, or changing compensation practices, to afford
an accommodation. Where it is clearly established that the necessary
accommodation will pose an undue hardship on the covered entity
due to expense, a covered entity may explore the possibility of
seeking third party funding, through a grant or other means, or assist
the individual in applying for a grant to obtain the accommodation, or
present the possibility of having the individual pay for part or all of the
accommodation.
128
Covered entities should immediately cooperate
127
In re Comm’n on Human Rights ex rel. Stamm v. E&E Bagels,
OATH Index No. 803/14, Dec. & Order, 2016 WL 1644879, at *6 (Apr.
21, 2016).
127
Phillips v. City of N.Y., 884 N.Y.S.2d 369, 378 (1st Dep’t 2009),
overruled on other grounds by Jacobsen v. N.Y.C. Health & Hosps.
Corp., 22 N.Y.3d 824 (2014).
128
See In re Russell v. Chae Choe, OATH Index No. 09-1021033,
Dec. & Order, 2009 WL 6958753 (Dec. 10, 2009) (holding respondent
liable for failure to accommodate where removal of a tub and
installation of a shower would not cost the respondent any money,
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with any investigation to determine what may or may not be
reasonable given the unique situations of the individual seeking the
accommodation and the covered entity’s ability to provide an
accommodation.
Requests for accommodations that require physical changes or
accommodations to a space may constitute an undue hardship if, for
example, they would be architecturally infeasible.
129
In addition, if a
physical change or accommodation is needed for a limited period of
time because a tenant has a temporary disability, the period of time
for which the accommodation is needed will be considered in
determining whether the time and expense to provide the
accommodation would cause an undue hardship.
If a housing provider is required to make a reasonable
accommodation for a tenant’s disability, the housing provider is
generally prohibited from passing, directly or indirectly, any portion of
the cost of providing the reasonable accommodations onto the tenant
since United Cerebral Palsy of New York had agreed to bear the
cost).
129
See, e.g., In re Comm’n on Human Rights ex rel. Rose v. Riverbay
Corp., OATH Index No. 1831/10, Dec. & Order, 2010 WL 8625897, at
*2 (Nov. 1, 2010) (“. . . the Commission interprets the New York City
Human Rights Law as requiring that housing providers, public
accommodations and employers (where applicable), make the main
entrance to a building accessible unless doing so creates an undue
hardship, or is architecturally infeasible. Only then, should an
alternative entrance be considered . . . [The NYCHRL] requires that
every entrance or exit available to an able-bodied person be made
accessible for a disabled person, assuming it would be architecturally
feasible and not cause an undue hardship”).
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through any fee, rent increase, or other charge.
130
Furthermore, once
an accommodation is made, under the NYCHRL, a housing provider
cannot require a tenant to restore the housing back to its original
condition at the end of the tenancy or pass the cost of doing so onto
the tenant.
Examples of Undue Hardship
An employee of a small business with six other employees has a
disability that prevents him from being at the office. He works as
the only receptionist and administrative assistant for the office.
He asks his employer if he can work remotely as an
accommodation, which is the only accommodation that will allow
him to continue working with his condition. The employer
considers the employee’s job functions, which include greeting
visitors to the office, answering the phone and directing calls,
130
See Phillips v. City of N.Y., 66 A.D.3d 170,177 n.5 (1st Dep’t 2009)
(“the City HRL . . . requires the housing provider to make the change,
and does not shift the cost to the person with a disability (unless the
housing provider demonstrates undue hardship)”), overruled on other
grounds by Jacobsen v. N.Y.C. Health & Hosps. Corp., 22 N.Y.3d 824
(2014); see also In re Comm’n on Human Rights ex rel. Blue v. Jovic,
OATH Index No. 1624/16, Dec. & Order, 2017 WL 2491797, at *18
(May 26, 2017) aff’d sub nom. Jovic v. N.Y.C. Comm’n on Human
Rights, Index No. 100838/2017 (Sup. Ct. N.Y. Cty. Feb. 14, 2018)
(“Consistent with §§ 8-102(18) and 8-107(15)(a) of the NYCHRL,
Respondent . . . shall bear the full cost of providing the reasonable
accommodation and is prohibited from passing directly or indirectly
any portion of that expense onto Complainants through any fee, rent
increase, or other charge.”).
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making copies, filing documents, preparing materials for
meetings, ordering supplies, and maintaining an orderly and
organized office space. The employer determines that the
majority of the employee’s job functions require that he be
present in the office and that it would be a financial undue
hardship to hire additional staff to cover those responsibilities,
given the size of the business. The employer memorializes his
determination in writing and provides it to the employee to
conclude the cooperative dialogue.
An employee who works at a small real estate office requests an
accommodation of specialized equipment and a license to use a
service that will cost approximately $5,000 per year. The
employer determines that they do not have the financial
resources to pay for an accommodation at that expense and
would have to take out a loan to cover the cost. They explore
other alternative accommodations but none adequately provide
the services the employee needs. The employer informs the
employee that the full cost would pose an undue hardship but
offers to split the cost with the employee instead. The employee
agrees to the arrangement, and the employer sends an email to
the employee memorializing the agreement and concluding the
cooperative dialogue.
A tenant who, due to a mobility limitation, can no longer regularly
use the stairs in his building, requests to be relocated from his
third-floor apartment to a first-floor apartment in a building with
four floors and eight total units. His landlord denies the request
because the first-floor apartments rent for several hundred
dollars more per month than the tenant’s third-floor apartment
and the landlord cannot afford to offer the apartment at the
tenant’s current rent, because he would lose several thousand
dollars per year in rental income, and the tenant cannot afford
the higher rent. The landlord has an available apartment at a
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neighboring building on a lower floor that rents for $50 more per
month, and the landlord offers the apartment to the tenant at his
current rent. The tenant does not wish to relocate and rejects the
offer. The landlord has appropriately denied the original request
based on a more than de minimis loss in rental income that he
cannot absorb and offered an alternative arrangement that the
tenant is free to accept or reject. The landlord leaves the tenant
a note concluding the cooperative dialogue by stating that the
tenant has rejected the offer of an apartment at a neighboring
building and therefore the cooperative dialogue has concluded.
2. Essential Requisites of the Job
In employment cases where the need for a reasonable
accommodation is placed at issue, the employer may raise the
affirmative defense that the person aggrieved by the alleged
discriminatory practice could not, even with a reasonable
accommodation, satisfy the essential requisites of the job or enjoy the
right or rights in question.
131
This means that even when the
accommodation does not create an undue hardship for the employer,
if it would not enable the employee to perform the basic duties and
responsibilities required of the job, the employer may deny the
accommodation. The employer has the burden to prove that the
employee could not, with reasonable accommodation, satisfy the
essential requisites of the job.
132
An employer can establish this by
131
N.Y.C. Admin. Code § 8-107(15)(b).
132
Phillips v. City of N.Y., 66 A.D.3d 170, 183 (1st Dep’t 2009),
overruled on other grounds by Jacobsen v. N.Y.C. Health & Hosps.
Corp., 22 N.Y.3d 824 (2014).
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appropriately engaging in the cooperative dialogue with the employee
and arriving at this conclusion.
In raising this defense, an employer must show that there are no
comparable positions available for which the employee is qualified
that would accommodate the employee, and that a lesser position or
an unpaid leave of absence is either not acceptable to the employee
or would pose an undue hardship.
133
Example
An employee is injured in a car accident after working
successfully for six months. The employee, due to her disability,
is no longer able to perform the essential requisites of her
current position, with or without a reasonable accommodation.
The employee seeks a reassignment. A position for which the
employee is qualified will become vacant in four weeks. If it
would not pose an undue hardship to the employer, the employer
must offer this position to the employee. The employer may
place the employee on a paid or unpaid leave consistent with its
existing policies until the position becomes vacant.
Essential requisites of a job, or essential functions of a job, are not
synonymous with all the functions of the job. In evaluating whether
certain functions of a job are considered “essential,” factors including,
but not limited to, the following will be considered:
133
See infra Part V(a) for a discussion on when an employer may offer
an alternative position or unpaid leave as a reasonable
accommodation.
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Whether the position exists for performance of that particular
function;
Whether other employees perform that function and/or whether it
can be reassigned;
Whether the function is highly specialized so that the employee
in the position is hired for their specific expertise or ability to
perform it;
Whether removal or reassignment of the function would
fundamentally alter the position;
How much time is spent performing the function;
Whether there are consequences associated with failing to
perform the function;
Whether the function is merely a requirement “on paper” or is
actually required of employees; and
Whether the function is critical to one’s job performance.
134
In making this determination, no one factor is dispositive, and a fact-
specific inquiry will be conducted into both the employer’s description
of a job and how the job is actually performed in practice.
135
A job
description or job posting, while informative, is not considered an
absolute list of essential job functions; rather, the specific day-to-day
essential functions that the employee performs will be considered.
Example
An employee’s schizophrenia requires him to take medication
that makes him drowsy and sluggish in the morning and often
results in late arrival at work. Because his employer allows all
134
See 29 C.F.R. § 1630.2(n).
135
McMillan v. City of N.Y., 711 F.3d 120, 126 (2d Cir. 2013).
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employees to have flexible start times and work late as needed,
and the employee is able to perform his job duties with modified
hours, his request that he work through lunch and/or work late to
make up time lost due to late arrivals would not cause undue
hardship to the employer, and thus was reasonable.
136
3. Requested Accommodation Implicates Other City, State, or
Federal Law
In some instances, a requested accommodation may conflict with
federal, state or local law or regulations. In such circumstances, the
covered entity must make inquiries about the possibility of a waiver
from the requirements of other laws that would allow it to make the
requested accommodation. If a waiver is unavailable, the potential
conflict of providing an accommodation that would violate another law
may be an undue hardship.
Examples
Establishments that sell or prepare food must allow service
animals in public areas.
137
136
Id. at 123.
137
The N.Y.C. Health Code exempts service animals from its
prohibitions of live animals in food service establishments. N.Y.C.
Health Code § 81.25. See also U.S. DEP’T OF JUSTICE, CIVIL RIGHTS
DIV., DISABILITY RIGHTS SECTION, ADA 2010 REVISED REQUIREMENTS:
SERVICE ANIMALS (July 12, 2014),
https://www.ada.gov/service_animals_2010.pdf.; N.Y. State Public
Health Law § 1352-e (recognizing that service animals are not
covered by restrictions applicable to pets).
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The NYC Landmarks Preservation Commission has a long
history of approving proposals for work that accommodates
barrier-free access at landmark properties, including ramps, lifts,
and associated fixtures, such as signage, push plates, and free-
standing hardware. If a covered entity’s building is landmarked
and an individual with a disability requests a reasonable
accommodation, the covered entity must contact the Landmark
Preservation Commission regarding guidance on whether and
how accessibility renovations can be made so that all New
Yorkers and visitors can utilize the building.
138
Types of Accommodations Based on
Disability
The following section is intended to provide an illustrative, non-
exhaustive list of a range of possible accommodations available to
individuals with disabilities.
Employment
A reasonable accommodation in employment enables an individual
with a disability to apply for a job, interview for a job, perform a job, or
have equal access to the workplace and employee benefits. In
138
N.Y.C. Landmarks Pres. Comm’n, Fact Sheet: Barrier-Free Access
for Historic Buildings (Nov. 3, 2016),
http://www1.nyc.gov/assets/lpc/downloads/pdf/pubs/Barrier-
Free%20Access.pdf.
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considering accommodations for current employees, an employer’s
first obligation is to accommodate an employee so that they may
remain in their current position. When that is not possible, an
employer may then consider whether the employee could be
reassigned to a vacant position. In considering alternative positions,
an employer may consider the qualifications necessary for the
position and whether the pay, status, and benefits are equivalent to
the employee’s current position. When a comparable position is
unavailable, an employer may then explore alternative positions that
are not comparable. In circumstances in which no other
accommodation can be made, a paid or unpaid leave of absence—
consistent with policies for other forms of leave (including whether
benefits are continued beyond other statutory requirements to
maintain benefits) that do not treat individuals with disabilities less
well than other employees on leave—may be offered as a temporary
accommodation. However, in some circumstances, leaves of absence
may be the preferred accommodation or the only accommodation
available.
1. Hiring
An employer’s obligation to provide reasonable accommodations is
not limited to current employees, but equally applies to applicants and
interviewees. Employers must provide reasonable accommodations to
enable applicants to apply for jobs and be considered for job
openings, unless the accommodation poses an undue hardship. For
example, employers should make their online application processes
accessible to individuals with visual impairments or provide alternative
means to apply for jobs, and prepare printed internal job information
posted on employee bulletin boards in large print and in a location
that is accessible. Employers may tell applicants what the hiring
process involves—for example, an interview, a timed written test, or a
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presentation—and may ask applicants whether they will need a
reasonable accommodation for any part of the process.
Examples
Providing an applicant who is deaf with a sign language
interpreter for his interview.
Administering a typing test for an administrative position in a
wheelchair-accessible location for an applicant who uses a
wheelchair.
Assisting an applicant who is blind in completing application
forms.
Providing an applicant who has dyslexia with additional time for
his pre-employment test.
2. Physical Space, Assistants, Technology, and Service
Animals
Often, a reasonable accommodation will involve making the
workplace more accessible for individuals with disabilities.
Reasonable accommodations may include obtaining equipment,
making changes to existing equipment, providing an assistant,
allowing a service animal in a business setting, or making non-
structural or structural changes to workspaces or support facilities
such as restrooms and cafeterias. While employers should provide
equipment that is specifically needed to perform a job, they are not
obligated to provide equipment that an employee uses in daily life,
such as glasses, a cane, or a hearing aid, that are readily
transportable to the workplace.
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Employment activities should take place in integrated settings and
employees with disabilities should not be segregated into particular
facilities or parts of facilities, unless the segregated setting itself is a
form of reasonable accommodation.
139
In existing facilities, structural
changes may be necessary to the extent that they will allow an
employee with a disability to perform the essential requisites of the
job, including access to work stations and support facilities such as
restrooms and cafeterias. Non-structural changes may also be
explored if they achieve the same result.
Individuals with speech disabilities, or sensory disabilities such as
those relating to vision or hearing, should be able to communicate
effectively with others in the workspace. In some employment
contexts, an interpreter, reader, or note-taker may be an effective
accommodation for an employee. In other contexts, technology or
equipment such as assistive listening systems and devices, screen-
reader software, magnification software and optical readers, or other
electronic and information technology that is accessible may enable
more effective communication. In assessing accommodations, the
employer should engage in a cooperative dialogue with the employee
to assess their specific needs in relation to their job tasks.
Examples
Purchasing a talking calculator for an employee with a vision
disability.
139
For example, a segregated setting may be a reasonable
accommodation for an employee with a disability that requires a
quieter workspace with less noise or fewer distractions.
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Allowing an employee who has epilepsy to bring her service dog
to the office.
Purchasing a teletypewriter, telecommunications device, text
telephone, or video phone for an employee with a hearing and/or
speech disability to communicate over the telephone.
Providing telephone headsets, speaker phones, and adaptive
light switches for employees with manual disabilities.
Providing a quieter workspace or making other changes to
reduce noisy distractions for an employee with a mental health
disability.
Installing a cup dispenser at the water fountain to allow an
employee who uses a wheelchair to access the water fountain.
Providing a part-time assistant to support an employee with
quadriplegia with clerical duties, such as retrieving items on
shelves or filing.
3. Work Restructuring or Reassignment
Job restructuring may be a reasonable accommodation for an
employee with a disability, and may involve reallocating or
redistributing some of the non-essential functions of a job. For
example, an employer may reassign work at an office among
coworkers, eliminate non-essential tasks, reassign visits to accessible
sites, or allow work in settings other than the traditional office setting.
If an employee develops their disability after being on the job and can
no longer perform some or all of the essential requisites of the job, an
employer must consider reassignment of the employee to a vacant
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position within the organization, if doing so does not constitute an
undue hardship.
140
4. Leave
One type of reasonable accommodation for an employee’s disability is
allowing the use of accrued paid leave or unpaid leave so that the
employee can return to work after the leave and perform the essential
requisites of the job. In some circumstances, it may be an
accommodation of last resort, or it may be the only or preferred option
for the employee. Employers should allow employees to exhaust
accrued paid leave first and then provide unpaid leave. Leave for
disability must be administered consistently with policies for other
forms of leave (including whether benefits are continued beyond any
other statutory requirements to maintain benefits) that do not treat
individuals with disabilities less well than other employees on leave.
The use of leave may be a reasonable accommodation for a number
of reasons related to the disability, including but not limited to
receiving medical treatment, rehabilitation services, or physical or
occupational therapy; recuperating from an illness or an episodic
manifestation of the disability; getting repairs on a wheelchair or
prosthetic device; avoiding temporary adverse conditions in the work
environment such as an air conditioning breakdown causing unusually
140
The new position should be one that the employee is qualified to
perform and that pays a comparable salary. Reassignment does not
require the employer to violate a bona fide seniority system or
collective bargaining agreement under which someone else is entitled
to the vacant position. Reassignment should be considered only if
there are no reasonable accommodations available that would allow
the employee to perform the essential functions of his/her current job.
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warm temperatures that might exacerbate symptoms; or receiving
training in the use of Braille or learning sign language.
141
In some circumstances when an employee requests leave as a
reasonable accommodation, the employee, or the employee’s doctor,
may be able to provide a definitive date on which the employee can
return to work, but in some instances, only an approximate date or
range of dates can be provided. A projected return date or range of
return dates may need to be modified in light of changed
circumstances, such as when an employee’s recovery takes longer
than expected. In order to determine if such accommodations cause
an undue hardship, they must be evaluated on a case-by-case
basis.
142
Leave as a reasonable accommodation includes the
employee’s right to return to his or her original position in
circumstances where keeping that job open for the employee does
not impose undue hardship. In many instances, an employer can
reassign work tasks, schedule additional workers to cover shifts, or
hire a temporary or part-time employee to minimize any hardship.
However, if an employer determines that holding the job for the
employee on leave will cause an undue hardship, then it must
consider whether there are alternatives that permit the employee to
complete the leave and return to work in a different position.
141
See U.S. Equal Emp. Emp’t Opportunity Comm’n, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under
the Americans with Disabilities Act (Oct. 17, 2002),
https://www.eeoc.gov/policy/docs/accommodation.html.
142
See U.S. EQUAL EMP. EMP’T OPPORTUNITY COMM’N, EMPLOYER-
PROVIDED LEAVE AND THE AMERICANS WITH DISABILITIES ACT (May 9,
2016), https://www1.eeoc.gov//eeoc/publications/ada-
leave.cfm?renderforprint=1.
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95
Another type of reasonable accommodation is allowing a change in
an employee’s regular work schedule or establishing a flexible leave
policy. For example, a modified work schedule may involve moving an
employee from a 9am to 5pm shift to an 11am to 7pm shift to
accommodate the employee’s disability. This type of accommodation
may be effective for an employee who requires regular medical
appointments for treatment for their disability or an employee whose
disability is affected by eating or sleeping schedules. A flexible work
schedule may also be a reasonable accommodation for an
employee’s disability, allowing an employee to vary their arrival or
departure times. Additionally, allowing an employee to work from
home may be a reasonable accommodation for an employee with a
disability. While many employers rely on policies that require
employees to “earn the privilege” of working from home, if an
employee requests to work from home as an accommodation, the
employer cannot rely on such policies and must instead do an
individualized analysis of the employee’s actual work tasks to see
whether they can perform them from home on the schedule requested
by the employee.
Housing
A reasonable accommodation in housing enables
143
an individual with
a disability an equal opportunity to apply for, obtain recertification for,
143
Unlike state law, the NYCHRL requires housing providers to grant
reasonable accommodations that would enable a resident equal use
and enjoyment of their housing unit. This is a distinctly broader
standard than the state law which requires the accommodation be
“necessary” to use and enjoy the apartment. See In re Comm’n on
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96
use, and enjoy a dwelling, including public and common use
spaces.
144
This may involve a structural change to the physical space,
or an exception or adjustment to a policy or practice. In considering
accommodations for tenants or residents with disabilities, a housing
provider’s first obligation is to accommodate a resident so that they
may remain in their current unit.
145
When that is not possible, a
housing provider may then consider whether the resident may be
relocated to an accessible unit, or other potential accommodations
that may allow the resident to equally use and enjoy their home.
146
1. Physical Space and Technology
A reasonable accommodation will often involve making the housing
accommodation more accessible for individuals with disabilities, either
through alterations to the existing physical space and structures, or
Human Rights ex rel. L.D. v. Riverbay Corp., OATH Index No.
1300/11, Rep. & Rec. 2011 WL 126879737, at *12 (Aug. 26, 2011),
aff’d Dec. & Order, 2012 WL 1657555 (Jan. 9, 2012).
144
Unlike state law, the NYCHRL does not make a distinction between
modifications in common areas and non-common areas in apartment
buildings. See N.Y. Exec. Law § 296(18).
145
Although the vast majority of housing examples here speak to
rental scenarios, it is important to note the breadth of the definition of
housing provider under the NYCHRL, which also applies to
condominium and cooperative living situations.
146
If a tenant is in a rent-stabilized or rent-controlled unit, the housing
provider should make every reasonable effort to relocate the tenant to
another rent-stabilized or rent-controlled unit.
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97
through the installation and/or use of technology, at the housing
provider’s expense.
147
If the main entrance to a building is not accessible to a resident who
resides in the building, the housing provider must explore how to
make the entrance accessible.
148
This may involve building a ramp;
installing an electric door that opens automatically; installing a lift;
installing intercoms or doorbells that light up instead of make sound;
or issuing hard keys to individuals, such as the visually impaired, who
have greater difficulty accessing doors with electronic key fobs. Under
the NYCHRL, it is a best practice for housing providers to make every
entrance or exit accessible to the extent that such alternations do not
pose an undue hardship, where a tenant has made such a request.
149
147
Unlike the Fair Housing Act, under which housing providers are
only responsible for the cost of reasonable physical accommodations
in buildings built after March 13, 1991, all housing providers are
responsible for the cost of reasonable physical accommodations to
their buildings under the NYCHRL (although condo and coop boards
are only responsible for the cost of accommodations in common
areas). See In re Comm’n on Human Rights ex rel. Blue v. Jovic,
OATH Index No. 1624/16, Dec. & Order, 2017 WL 2491797, at *17
(May 26, 2017) ) aff’d sub nom. Jovic v. N.Y.C. Comm’n on Human
Rights, Index No. 100838/2017 (Sup. Ct. N.Y. Cty. Feb. 14, 2018).
148
Some factors that may be considered in determining whether an
entrance is a main entrance include the location of security,
mailboxes, and the lobby area, access to elevators and other
amenities in the building, and the area the residents consider the
main entrance.
149
In re Comm’n on Human Rights ex rel. Rose v. Riverbay Corp.,
OATH Index No. 1831/10, Dec. & Order, 2010 WL 8625897, at *2 n.1
(Nov. 1, 2010).
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If a main entrance cannot be made accessible because doing so
poses an undue hardship, the housing provider must consider
whether an alternative entrance could be made accessible. However,
it is impermissible for a housing provider to determine that a front
entrance cannot be made accessible due to aesthetic concerns
unrelated to legal restrictions such as Landmarks Preservation.
Apartment units and common spaces may be configured in a way that
makes it extremely difficult or impossible for a resident with a disability
to navigate or perform day-to-day activities such as bathing, cooking,
or sleeping. In such circumstances, housing providers must provide
alterations such as installing grab bars to a bathtub, installing a roll-in
shower, or adjusting the location of appliances or other fixtures unless
such alterations pose an undue hardship.
Examples
Installing a flashing light function to a doorbell may be an
effective accommodation for an individual who is deaf or hard of
hearing.
Replacing door knobs with lever hardware may be an effective
accommodation for an individual with a disability affecting their
dexterity.
Constructing a ramp at the main entrance to the building and/or
to access the building’s elevator may be an effective
accommodation for an individual with a mobility disability.
Replacing a bathtub or shower stall with a roll-in shower may be
an effective accommodation for an individual with a mobility
disability.
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Re-configuring the furniture in the apartment lobby to allow for an
accessible path to the elevator may be an effective
accommodation for an individual who uses a wheelchair.
Replacing a complicated latch on a gate surrounding the
swimming pool with a lever or loop handle may be an effective
accommodation for an individual with a manual disability.
When a housing accommodation has an elevator outage, it is a best
practice for the housing provider to give notice of the disruption and
provide a timeframe for the disruption to all residents. Reasonable
accommodations in such circumstances may include relocating a
resident to the ground floor if an apartment of suitable size to meet
the resident’s needs is available; relocating a resident to another
building if the housing provider has multiple buildings on one site;
relocating a resident to another complex; paying any reasonable
moving expenses; paying for a hotel or other residential option;
providing services (i.e., grocery delivery or mail delivery to the
individual); providing assistance to navigate the stairs; or providing
rent abatement if the resident cannot safely stay in the apartment.
2. Policies and Practices
Housing accommodations may also provide reasonable
accommodations by making exceptions or changes to their policies
and practices.
Examples
Permitting a live-in personal care attendant or live-in aide to live
with a resident with a disability who might need 24-hour
assistance or waiving any guest fees due to this need.
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Accepting a reference from a housing applicant’s social worker
or employer if an applicant does not have a rental history due to
their disability.
Changing the method by which a housing provider
communicates with a resident with a disability or provides
information, such as providing more frequent reminders of rent
due for someone with a mental health disability who needs such
reminders or informing an individual designated by the resident
(e.g. family member or social worker), in addition to the resident,
of new policies.
Doing a home visit to fill out forms for voucher recertification for a
resident with a mobility disability.
3. Service Animals and Emotional Support Animals
Housing providers are required to reasonably accommodate persons
with disabilities who rely on service animals or emotional support
animals by providing exceptions to “no pet” or “no dog” policies. A
service animal is an animal that does work or performs tasks for an
individual with a disability. For example, a dog that guides an
individual with a visual impairment is a service animal. An emotional
support animal is an animal that provides emotional support or other
assistance that ameliorates the symptoms of a disability.
150
If housing
150
Unlike under state law, under the NYCHRL a person need only
show that the presence of the emotional support animal in some way
alleviates symptoms of their disability in order to justify their request
for the accommodation. They need not show that the animal is
“necessary” to their use and enjoyment of the residential unit. In re
Comm’n on Human Rights ex rel. L.D. v. Riverbay Corp., OATH Index
No. 1300/11, Rep. & Rec. 2011 WL 126879737, at *11-12 (Aug. 26,
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101
providers have “no pets” policies, charge pet fees, or have breed,
weight, or size restrictions on pets, they must make exceptions to
these policies in situations in which a resident requests to keep a
service animal or emotional support animal in their housing unit due to
a disability, unless doing so would cause the housing provider an
undue hardship.
City, state, and federal laws may prohibit certain animals.
151
Unless
an exception is made to the prohibition, it will be an undue hardship to
permit a prohibited animal as a service or emotional support animal.
However, it will rarely cause an undue hardship for a resident to keep
a service or emotional support animal as an exception to a building’s
“no pet” policy. The possibility of potential incidental property damage
is rarely an undue hardship. Where a particular animal creates
legitimate health or safety concerns, the housing provider and the
resident must engage in a cooperative dialogue to determine what
other accommodation may be available.
152
2011), aff’d Dec. & Order, 2012 WL 1657555 (Jan. 9, 2012).
151
The New York City Health Code enumerates a list of animals that
are prohibited within the City of New York. N.Y. Rules, Tit. 24, Health
Code, § 161.01, available at
http://www1.nyc.gov/assets/doh/downloads/pdf/about/healthcode/heal
th-code-article161.pdf.
152
See infra IV(a) for a discussion on cooperative dialogue. If the
animal poses a direct threat (i.e., a significant risk of substantial harm)
to the health or safety of other individuals that cannot be eliminated or
reduced to an acceptable level by another reasonable
accommodation, the housing provider may deny the request. In
evaluating whether an animal poses a direct threat, the housing
provider should consider the health and safety of other individual(s)
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When a resident’s disability and/or the need for the requested animal
is not apparent,
153
the housing provider may ask that the resident
provide a statement from a health professional
154
indicating: (1) that
the person has a disability; and (2) information that an animal is able
to perform tasks, or provide emotional support or other assistance,
that would ameliorate one or more symptoms or effects of the
disability. If a resident requests an accommodation for a service
animal or emotional support animal, and if both the resident’s
disability and the need for the requested animal are apparent or
otherwise known to the housing provider, the housing provider may
not inquire about the individual’s disability or the need for the animal.
For example, if a resident who is blind requests an accommodation
and whether those concerns may be addressed by an
accommodation, or if the animal has caused substantial physical
damage to the property of others that cannot be reduced or eliminated
by another reasonable accommodation. The housing provider must
base such determinations upon consideration of the behavior of the
particular animal at issue and not on speculation or fear about the
types of harm or damage an animal may cause.
153
See infra Part IV(a)(ii)(1), discussing how in circumstances where
an applicant’s disability and the need for the requested
accommodation is readily apparent or otherwise known to the covered
entity, making additional inquiries or asking for medical
documentation about the requester’s disability or the disability-related
need for the accommodation may constitute harassment.
154
“Health professional” means a person who provides medical care,
therapy, or counseling to persons with disabilities, including, but not
limited to, doctors, physician assistants, psychiatrists, psychologists,
or social workers.
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for his service animal who guides him, the housing provider may not
inquire about the resident’s disability or the animal’s training, or
require medical documentation to justify the need for the service
animal.
A housing provider may not require individuals to provide medical
records or details of a disability beyond that which is minimally
sufficient to demonstrate the existence of a disability and the
relationship between the disability and the requested
accommodation.
155
4. Relocation
Where a reasonable accommodation is not possible given certain
structural limitations of the building, the housing provider must
consider alternative accommodations. Alternatives may include a
temporary or permanent relocation of the resident, to a different
apartment building within the housing provider’s control, or to a
different apartment within the same building. For example, if an
elevator is not functioning, and will not be repaired for a long period of
time, and it prevents a resident who uses a wheelchair from being
able to enter and exit their apartment, the housing provider must
consider whether temporarily relocating the resident to a unit on a
lower floor or in another building is possible. However, relocation,
particularly to a different building, is generally an accommodation of
155
However, if the animal is a dog or cat, once the animal has been
selected, the housing provider may request copies of the license, tag,
or rabies certificate and other vaccination information as required by
New York State law, and a photograph of the animal. If the housing
provider requests such information, the resident must provide it.
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last resort. A resident is not required to relocate if a physical
modification to their unit is available and does not pose an undue
hardship on the housing provider.
Public Accommodations
1. Physical Space and Technology
Places and providers of public accommodations are required to
provide reasonable accommodations for people with disabilities to
allow equal and independent access. These types of
accommodations can include alterations to the existing physical
space and structures or the use of assistive technology.
Examples
A bank may install ATMs with Braille on the keypads and glare-
free screens to accommodate individuals with visual
impairments.
A theater may install closed captioning in certain seat sections to
accommodate individuals with hearing disabilities during
performances.
A clothing store may alter the height at which they mount mirrors
and shelves so they can be accessible for individuals using
wheelchairs.
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2. Policies and Practices
Places of public accommodation must also provide reasonable
accommodations by making exceptions or changes to their policies
and practices that would allow for equal and independent access for
individuals with disabilities.
Examples
A museum may provide a sign language interpreter for a lecture
as an accommodation for participants who are deaf.
A fitness facility may waive a guest fee for an aide or nurse who
is required to be with an individual with a disability while he
exercises.
A restaurant that does not have menus available in Braille or
large print may have its waiter read a menu to a customer who is
blind or has low vision.
A college may appoint a note-taker to a student with a disability
to take notes for her classes.
A doctor’s office may schedule an appointment at a specific time
that will reduce or eliminate waiting for a patient whose disability
is aggravated by waiting in a crowded waiting room.
A restaurant may allow an individual with a service animal to
access the restaurant with their animal.
Allergies or fear of animals by fellow patrons, staff members, or
providers of public accommodations generally will not be a basis for
denying access or refusing service to people using service animals.
For example, if a person who is allergic to dogs and a person who
uses a service dog must spend time in the same room or facility, they
should both be accommodated by providing services to them, if
possible, in different locations within the facility. Otherwise, individuals
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with disabilities who use service animals cannot be isolated from
other patrons. An individual with a disability cannot be asked to
remove their service animal from the premises unless: (1) the animal
is out of control and the handler does not take effective action to
control it; or (2) the animal is not housebroken or otherwise creates a
nuisance. When there is a legitimate reason to ask that a service
animal be removed, staff must offer the person with the disability the
opportunity to obtain the goods or service without the animal’s
presence.
156
“[S]ervice animals should be harnessed, leashed, or tethered, unless
these devices interfere with the animal’s work or the individual’s
disability prevents them from using these devices. In that case, the
individual must maintain control of the animal through voice, signal, or
other effective controls.”
157
When it is not apparent whether the animal is a service animal, only
limited inquiries are allowed. Staff may ask two questions: (1) is the
service animal required because of a disability; and (2) what work or
task has the service animal been trained to perform. Staff cannot ask
about the person’s disability, require medical documentation, require
a special identification card or training documentation for the animal,
or ask that the service animal demonstrate its ability to perform a
specific task.
158
156
See U.S. Dep’t of Justice, Civil Rights Div., Disability Rights
Section, ADA 2010 Revised Requirements: Service Animals (July 12,
2014), https://www.ada.gov/service_animals_2010.pdf.
157
U.S. Dep’t of Justice, Civil Rights Div., Disability Rights Section,
ADA 2010 Revised Requirements: Service Animals (July 12, 2014),
https://www.ada.gov/service_animals_2010.pdf.
158
See U.S. Dep’t of Justice, Civil Rights Div., Disability Rights
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Retaliation
The NYCHRL prohibits retaliation against an individual for opposing
discrimination. The purpose of the retaliation provision is to enable
individuals to speak out against discrimination and to freely exercise
their rights under the NYCHRL. Freedom from retaliation helps ensure
that individuals needing accommodations will request them and
promotes a culture where people are not afraid to exercise their
rights. Retaliating against an individual because they opposed
discrimination based on disability or perceived disability is a violation
of the NYCHRL.
A covered entity may not retaliate against an individual because they
engaged in protected activity, including: (1) oppose a discriminatory
practice prohibited by the NYCHRL; (2) raise an internal complaint
regarding a practice prohibited under the NYCHRL; (3) make a
charge or file a complaint with the Commission or any other
enforcement agency; or (4) testify, assist, or participate in an
investigation, proceeding, or hearing related to an unlawful practice
under NYCHRL.
159
In order to establish a prima facie claim for
retaliation, an individual must show that: (1) the individual engaged in
a protected activity; (2) the covered entity was aware of the activity;
(3) the individual suffered an adverse action; and (4) there was a
Section, ADA 2010 Revised Requirements: Service Animals (July 12,
2014), https://www.ada.gov/service_animals_2010.pdf.
159
N.Y.C. Admin. Code § 8-107(7).
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causal connection between the protected activity and the adverse
action.
160
When an individual opposes what they believe in good faith to be
unlawful discrimination, it is illegal to retaliate against the individual
even if the conduct they opposed is not ultimately determined to
violate the NYCHRL. For example, if an employee experiences
adverse action for raising concerns to their employer about the
treatment of a colleague with disabilities, even if the treatment of the
colleague does not amount to discrimination, the employee may have
a claim for retaliation.
161
An action taken against an individual that is reasonably likely to deter
them from engaging in such activities is considered unlawful
retaliation. The action need not rise to the level of a final action or a
materially adverse change to the terms and conditions of
employment, housing, or participation in a program to be retaliatory
under the NYCHRL.
162
The action could be as severe as termination,
demotion, removal of job responsibilities, or eviction, but could also be
relocating an employee to a less desirable part of the workspace,
shifting an employee’s schedule, failing to grant an accommodation,
or failing to make repairs in a resident’s unit.
An individual needing an accommodation for their disability must be
able to seek assistance and engage in the cooperative dialogue with
covered entities without fear of adverse consequences for making the
request. While a request for a reasonable accommodation itself is not
160
Id.
161
See, e.g., Albunio v. City of N.Y., 16 N.Y.3d 472 (2011).
162
N.Y.C. Admin. Code § 8-107(7).
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protected activity under the NYCHRL,
163
if a request for a reasonable
accommodation leads to an adverse action, there may be a claim for
disparate treatment under the NYCHRL.
164
Claims for disability discrimination under the NYCHRL may be based
on a failure to provide a reasonable accommodation.
165
Therefore, it
would be retaliation for a covered entity to take an adverse action
against an individual with a disability for making a complaint alleging a
failure to provide a reasonable accommodation.
166
Examples of Retaliation
An employee is diagnosed with cancer and speaks to her
employer about a reasonable accommodation that would allow
her to attend regular appointments for treatment. Her employer
fails to engage in a cooperative dialogue and ignores her
request. The employee submits an internal complaint with
Human Resources regarding her employer’s failure to
accommodate. When the employer learns of the employee’s
complaint, he demotes her.
163
McKenzie v. Meridian Cap. Grp., 35 A.D.3d 676, 677 (2d Dep’t
2006) (dismissing claim that plaintiff was fired in retaliation for
requesting additional leave time to accommodate her disability
because plaintiff failed to allege “that her request was made in
opposition to a practice forbidden by” the NYCHRL).
164
See N.Y.C. Admin. Code §§ 8-107(1) – 8-107(5).
165
N.Y.C. Admin. Code § 8-107(15)(a).
166
See Serdans v. N.Y. Presbyterian Hosp., 112 A.d.3d 449, 450 (1st
Dep’t 2013).
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A tenant informs his landlord of his need to keep an emotional
support animal in his apartment as a reasonable accommodation
for his disability. While the landlord routinely approves such
requests, she denies the request because the tenant had
testified on behalf of another tenant’s case alleging
discrimination.
It is a best practice for covered entities to implement internal anti-
discrimination policies to educate employees, residents, and program
participants of their rights and obligations under the NYCHRL with
respect to individuals with disabilities, and regularly train staff on
these issues. Covered entities should create procedures for
employees, residents, and program participants to internally report
violations of the law without fear of adverse action and train those in
supervisory capacities on how to handle those claims when they
witness discrimination or instances are reported to them by
subordinates. Covered entities that engage with the public should
implement a policy for interacting with the public in a respectful, non-
discriminatory manner consistent with the NYCHRL, and ensuring that
members of the public do not face discrimination.
Discriminatory Harassment
The NYCHRL prohibits discriminatory harassment or violence
motivated by a person’s actual or perceived disability.
167
Discriminatory harassment occurs when someone uses force or
threatens to use force against a victim because of the victim’s actual
or perceived disability. Discriminatory harassment also occurs when
167
N.Y.C. Admin. Code §§ 8-602 – 8-604.
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111
someone damages or destroys another person’s property because of
their disability.
Examples of Discriminatory Harassment
An individual who uses a cane due to a mobility disability is
walking home from work. Two men who are approaching him on
the sidewalk point at him and laugh, yelling insults such as
“deformed” and “gimp.” When the individual ignores them and
continues on his way, one of the men kicks his cane out of his
hand, while the other pushes him to the ground.
An individual who uses a wheelchair is seated in an accessible
area at the end of an aisle in a movie theater. Another patron is
seated next to her. When he sees her, he gets up and stands
over her, and says, “Can you find somewhere else to park
yourself? You’re blocking the aisle. Move your stupid chair out of
the way or I’ll push you out of here myself,” and hits the wheel of
her wheelchair.
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Appendices
Cooperative Dialogue
Sample Reasonable Accommodation Request Form
(Employment)
Sample Grant or Denial of Reasonable Accommodation
Request Form (Employment)
Sample Letter to Employee on Leave
Service Animal One-Pager
Sample Sign Notifying Public How to Request
Accommodation in Public Accommodations
Sample Service Animals Welcome Sign
Sample Reasonable Accommodation Policy
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Cooperative Dialogue
Step 1
A covered entity’s obligation to engage in a cooperative dialogue is
triggered when it learns, either directly or indirectly, that an individual
requires an accommodation due to their disability.
The covered entity may learn direct of the accommodation need if, for
example, the individual reveals to the covered entity that they have a
disability, or requests an accommodation. The covered entity may
learn indirectly of the accommodation need if, for example, the
employer (1) has knowledge that an employee’s performance at work
is diminished or that their behavior at work could lead to an adverse
employment action, and (2) has a reasonable basis to believe that the
issue is related to a disability.
Step 2
After the covered entity learns, directly or indirectly that an individual
requires an accommodation, due to their disability, the covered entity
must initiate a cooperative dialogue with the individual.
If the covered entity approaches the individual to initiate a cooperative
dialogue and the individual does not reveal that they have a need for
an accommodation related to a disability, the covered entity has met
their obligation to initiate a cooperative dialogue and need not do
anything further.
If, however, individual reveals that they have a need for an
accommodation for a disability, the covered entity must proceed to
Step 3.
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Step 3
The covered entity must communicate in good faith with the individual
in a transparent and expeditious manner. The entity evaluates the
individual’s needs and considers the possible accommodations for the
individual that would allow them to perform the essential requisites of
the job or enjoy the right or rights in question, without creating an
undue hardship on the covered entity.
Step 4
Once a conclusion is reached, either to offer an accommodation, or
that no accommodation can be made, the covered entity must
promptly notify the individual seeking an accommodation of the
determination. In the case of housing providers and employers, this
notice must be provided in writing to conclude the cooperative
dialogue.
Continuing Obligation
As an individual’s condition changes over time, an individual may
make new requests for accommodations. Each time an individual
makes a new request, the covered entity must engage in a
cooperative dialogue with the individual.
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Sample Reasonable Accommodation Request
Form (Employment)
This form and all information must be kept confidential.
Applicant/Employee Information
Print Full Name:
Job Applicant Current Employee Other
Home or Work Address:
Phone Number:
Employee Information
(Complete this section if you currently employed with [EMPLOYER]
even if you are currently on leave.)
Title:
Email:
Office Telephone Number:
Division:
Supervisor Name and Phone Number:
Location:
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Applicant Information
(Complete this section only if you are a job applicant)
Position/Title Sought:
Division/Unit (if known):
Location of Position (if known):
Part(s) of employment process for which an accommodation is
requested:
Completing Job Application
Job Vacancy Notice Number (if known):
Interview:
Interview Date:
At Work:
Other (please specify):
[Employer] Contact Person (if known):
Phone Number:
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Identify the limitation(s) that impacts your ability to complete your
assigned tasks or complete the application process. Please be
specific. (Attach additional sheets of paper if necessary).
Is the condition for which you are requesting an accommodation?
Permanent Temporary Unknown
If temporary, anticipated date accommodation(s) no longer needed:
Describe the nature of the accommodation requested and how the
accommodation will assist you to perform the essential functions of
the job held or desired, or to enjoy the benefits and privileges of
employment. Please be specific. (Attach additional sheets and
present supporting documentation as appropriate.)
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If equipment is requested, please specify preferred brand, model
number and vendor, if known.
You may be required to provide verification by a health
professional or a disability service provider (e.g. ACCESS-VR,
NYS Commission for the Blind and Visually Impaired).
This CONFIDENTIAL documentation should be provided to
[identify the individual handling accommodation requests].
Medical verification/documentation should, to the extent possible:
Be written on the official letterhead of the qualified health
professional or health professional’s organization.
Identify the health professional’s credentials. E.g., M.D., D.O.
Be dated and signed by the health professional.
Describe the limitations in detail as they currently exist and only
in relation to the job.
State whether the duration of the limitation is permanent or
temporary or unknown.
If temporary, specify the date the limitation is expected to no
longer require accommodation.
I certify that I have read and understood the information provided in
this request, and that it is true to the best of my knowledge,
information and belief.
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Requestor’s Signature/Authorized Agent’s Signature:
Date:
DO NOT WRITE IN THIS SECTION
To be completed by staff supervising the employment application
process or supervising an employee requesting a reasonable
accommodation. After completing, supervisors must provide a copy
of the entire form to the employee or applicant, and immediately send
a copy to the [individual handling accommodation requests].
Name and Title of Supervisor or Staff supervising application process:
Unit/Division:
Location:
Email and Phone Number:
Date Request Received:
Supporting Documentation Included:
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Supporting Documentation Not Included:
Date:
Signature:
To be completed by [xxxx]:
Date Request Received by [xxxx]:
Date Supporting Documentation Received by [xxxx] (if any):
Signature:
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Sample Grant or Denial of Reasonable
Accommodation Request Form (Employment)
To be completed by:
Date:
Name of Individual requesting reasonable accommodation:
Specific Accommodation Requested:
Decision:
Reasonable Accommodation Granted as Requested
Alternative Accommodation Granted
Describe Alternative Accommodation Granted:
Request for reasonable accommodation denied because (you may
check more than one box):
Employee’s Request Determined Not to be Related to a Disability
Accommodation Would Not Meet Requested Need
Accommodation Would Cause Undue Hardship
Documentation of Need for the Accommodation Inadequate
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Accommodation Would Require Removal of an Essential Requisite
of the Job
Accommodation Would Pose Direct Threat
Other (Please specify):
If the individual proposed one type of reasonable accommodation,
which is being denied, and rejected an offer of a different type of
reasonable accommodation, explain both the reasons for denial of the
requested accommodation and reason why chosen accommodation
would be effective.
Deciding Official:
Name (print):
Telephone:
Email:
Signature:
Date Granted or Denied:
This serves as documentation of the conclusion of the
cooperative dialogue.
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Sample Letter to Employee on Leave
[Date]
[Addressee]
Re: Leave of Absence
Dear [Employee],
I write regarding your leave of absence from [employer]. When
we last spoke on [date], you informed me that you would be visiting
your doctor on [date] and would be able to update me as to your
ability to return to work following that appointment.
As you know, [employer] has a policy of allowing employees up
to [xx] weeks of disability-related leave from work. According to our
records, you have now been on leave since [date]. Therefore, your
available leave will expire on [date]. In order to maintain your status
as an employee, we need to hear from you regarding your plans and
ability to return to work. If you need a modification of your job duties
or workspace in order to return to work, or if you need an extension of
your leave beyond the [xx] weeks allowed by our policy, please
contact me at [phone] or [email] to discuss a possible reasonable
accommodation. We may ask that you submit a note from your
medical provider specifying what accommodations you need and/or
when you will be able to return to work.
If we do not hear from you at all by [date], we will unfortunately
be left with no option but to terminate your employment. When you
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receive this letter, please contact me at [phone] or [email] to discuss
your employment status and future plans.
Sincerely,
[XX]
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Service Animal One-Pager
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Definition of a Service Animal
Service Animal is defined as a dog that has been partnered with a
person who has a disability and has been trained or is being trained,
by a qualified person, to aid or guide a person
with a disability.
Allowed Questions
Questions allowed:
Staff may ask TWO questions.
Is the dog a service animal required because of a disability?
What work or task has the Service Animal been trained to
perform?
Questions Not Allowed
Questions NOT Allowed:
Staff cannot ask about the person’s disability.
Require medical documentation.
Require a special identification card or training documentation for
the dog.
Require that the animal demonstrate its ability to perform the
work or task.
Enforcement of the Law
Denied Access: You have the right to file a complaint with the New
York City Commission on Human Rights please call 311.
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Where Service Animals Are Allowed
Under the ADA, State and Local Governments, businesses, and
nonprofit organizations that serve the public generally must allow
service animals to accompany people with disabilities in all areas of
the facility where the public is normally allowed to go.
Reasons for Denied Service
A person with a disability can be asked to remove their Service
Animal from the premises if:
The Service Animal is out of control and the handler does not
take effective action to control it.
The Service Animal is not housebroken.
When there is a legitimate reason to ask that a Service Animal be
removed, staff must offer the person with the disability the opportunity
to obtain goods or services without the animal’s presence.
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Sample Sign Notifying Public How to Request
Accommodation in Public Accommodations
If you need help
accessing certain
spaces or any
merchandise in the
[store, bar, restaurant]
due to a disability,
please ask one of our
staff and we will assist
you as quickly as
possible.
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Sample Service Animals Welcome Sign
Service animals
welcome;
unfortunately, no
pets allowed.
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Sample Reasonable Accommodation Policy
Reasonable Accommodation Policy
[Landlord] is committed to granting reasonable accommodations to its
rules, policies, practices or services where such accommodations
enable people with disabilities the equal opportunity to use and enjoy
their dwellings as required by federal, state and local law. A
reasonable accommodation may include an exception to a rule or
policy or physical change to a unit or common area. A disability-
related reasonable accommodation exists when there is an
identifiable relationship, or nexus, between the requested
accommodation and the individual’s disability. No accommodation is
on its face unreasonable. An accommodation is reasonable unless it
causes undue hardship.
Reasonable Accommodation Requests
[Landlord] accepts reasonable accommodation requests from persons
with disabilities and those acting on their behalf. Individuals who
would like to request a reasonable accommodation may use, but are
not required to use, [landlord]’s “Application for Reasonable
Accommodation” Form. Reasonable Accommodation Application
Forms are available [place where available]. If you require assistance
in completing the Form, or wish to make the request orally, please
contact the [job title] at [contact information]. You may also make a
Reasonable Accommodation Request orally to [name and job title] at
[contact information].
We will make a decision on your request within [timeframe –
NYCCHR recommends no longer than ten] calendar days following
the receipt of all required documentation. If the request is of a time-
sensitive nature, please let us know and we will make our best efforts
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to expedite the decision-making process. If we grant the request, we
will let you know in writing by sending you a dated letter.
In the event we need additional information to make a determination,
we will advise you of the specific information needed within
[timeframe – NYCCHR recommends no longer than ten] calendar
days of your request. It is [landlord]’s policy to seek only the
information needed to determine if a reasonable accommodation
should be granted under federal, state or local law. [Landlord] will
never require individuals to provide medical records or to provide
details of a disability beyond that which is minimally sufficient to
demonstrate the existence of a disability and the relationship between
the disability and the requested accommodation.
If we deny the request, we will provide you with a dated letter stating
all the reasons for our denial. If an individual with a disability believes
a request for reasonable accommodation has been unreasonably
delayed, denied unlawfully, or that he or she has otherwise been
discriminated against on the basis of a disability, then he or she may
file a complaint by writing or calling any of the following:
New York City Commission on Human Rights
22 Reade Street
New York, NY 10007
(718) 722-3131
NYC.gov/HumanRights
US Department of Housing and Urban Development Office of
Fair Housing and Equal Opportunity
26 Federal Plaza, Rm 3532
New York, NY 10278
(212) 542-7519
http://hud.gov/complaints
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New York State Division of Human Rights
1 Fordham Plaza, 4th Fl.
Bronx, NY 10458
(718) 741-8400
https://dhr.ny.gov/how-file- complain
Service Animals and Emotional Support Animals
One type of reasonable accommodation is allowing a person with a
disability to keep a service animal or an emotional support animal. A
service animal is an animal that does work or performs tasks for an
individual with a disability. For example, a dog that guides an
individual with a visual impairment is a service animal. An emotional
support animal is an animal that provides emotional support or other
assistance that ameliorates the symptoms of a disability. [Landlord] is
committed to ensuring that individuals with disabilities may keep such
animals to the extent required by federal, state, and local law.
Except as provided under this Reasonable Accommodation Policy,
[landlord] prohibits residents from having animals. For that reason,
individuals with disabilities must request a reasonable
accommodation to have a service animal or an emotional support
animal live with them. Residents who have been allowed a
reasonable accommodation to keep a service animal or an emotional
support animal are not in violation of [landlord]’s rules and regulations.
[Landlord] encourages, but does not require, residents to make an
accommodation request before, or as soon as reasonably possible
after, their service animal or emotional support animal moves into the
residence. However, the fact that the animal is already living with the
individual in the residence or the fact that the individual has been
issued a violation for having an animal is not a factor that will be
considered in reviewing a request for a reasonable accommodation.
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[Landlord] does not place any breed or weight restrictions on the
animals which it allows, and does not require animals to wear any
item that identifies the animal as an assistance animal. [Landlord]
does not require that assistance animals complete behavioral training.
[Landlord] does not require individuals to indemnify [landlord] or pay a
fee to have an assistance animal.
If service animal or emotional support animal is a dog or cat, once the
animal has been selected, the individual must submit a photograph of
the animal. If the animal is a dog, the individual must also submit
information that the animal has been vaccinated as required by New
York State law. For purposes of this requirement, evidence that the
dog has a current license will be sufficient evidence that the dog has
been vaccinated.
In the event the service animal or emotional support animal passes
away or is no longer living, and the individual who has received a
reasonable accommodation to [LANDLORD]’s no pet policy obtains a
new service animal or emotional support animal, the individual must
provide a photograph of the new animal and proof of vaccination as
required above.
3. Service Animals
A service animal is an animal that does work or performs tasks for an
individual with a disability. For example, a dog that guides an
individual with a visual impairment is a service animal. If a person’s
disability is apparent, or otherwise known to [landlord], and if the work
or task that the animal performs is apparent or otherwise known, for
example, a dog that guides an individual with a visual impairment,
[landlord] will not inquire about the individual’s disability or the
animal’s training. Otherwise, [landlord] may require that the resident
provide:
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a. A statement from a health professional (“Health professional”
means a person who provides medical care, therapy, or
counseling to persons with disabilities, including, but not limited
to, doctors; physician assistants; psychiatrists; psychologists; or
social workers.) indicating that the person has a disability; and
b. Information that an animal is able to do work or perform tasks
that would ameliorate one or more symptoms or effects of the
disability.
[Landlord] will not require that the animal demonstrate its work or task
or require that the animal be registered with, or certified by, any
organization.
Emotional Support Animals
An emotional support animal is an animal that provides emotional
support or other assistance that ameliorates the symptoms of a
disability. When a resident requests a reasonable accommodation for
an emotional support animal, [landlord] may require a statement from
a health or social service professional indicating:
a. That the applicant has a disability; and
b. That the animal would provide emotional support or other
assistance that would ameliorate one or more symptoms or
effects of the disability.
[Landlord] will not require information about how an emotional support
animal assists with the “activities of daily living.”
If an animal both provides emotional support or other assistance that
ameliorates one or more effects of a disability and does work or
performs tasks for the benefit of a person with a disability, [landlord]
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may require compliance with either the service animal or emotional
support animal requirements above, but not both.
Conduct of Approved Service and Emotional Support
Animals
In most cases [landlord] requires that service and emotional support
animals be leashed or harnessed in the elevators and common areas
unless doing so would interfere with the animal’s work, or the person’s
disability prevents use of these devices. Service and emotional
support animals that cannot be leashed for the aforementioned
reasons must be otherwise under the control of their handler at all
times.
If an assistance animal poses a direct threat to the health or safety of
other individuals, or if the animal causes substantial physical damage
to the property of others that cannot be reduced or eliminated by
another reasonable accommodation, [landlord] maintains its right to
pursue legal action to abate a nuisance or to enforce the terms and
conditions of the lease.
Approved Tags
Upon approval of an individual’s request, [landlord] will provide them
with a tag for the animal (“Approved Tag”) to indicate that the animal
is permitted to be on [landlord]’s premises. Use of the tag is optional.
The purpose of the Approved Tag is to notify [landlord]’s staff that the
animal has been approved as an accommodation. If an individual opts
not to use the tag, [landlord] may stop them in order to verify that they
are approved to have an animal. If the animal is wearing an Approved
Tag, [landlord] will not stop the individual for the purpose of
determining if the assistance animal is on the approved animal list.
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In any event, [landlord]’s right to confirm that an animal is an
approved assistance animal will not be used to harass or annoy any
individual. Only employees that have the specific job duty of checking
whether an animal is an approved animal will stop any individual for
this purpose. Employees will not stop individuals who are with an
animal that the employee recognizes as a service or emotional
support animal.
Damage Caused by Service or Emotional Support
Animals
Residents will be responsible for the cost of any damage caused by
their service animal or emotional support animal in the same manner
in which they would be responsible for any damage caused by
themselves to their unit or the building.
Residents will not be charged any additional security deposit up front
for their service animal or emotional support animal.
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Sample Form A: Application for Reasonable Accommodation
Please complete this form to request an accommodation. If you
require assistance completing the form or wish to make the request
orally, please contact [job title] at [contact information]. [landlord] will
keep a record of reasonable accommodation requests relating to
requests for assistance animals. The reasonable accommodation
policy is available on [landlord]’s website and in writing at [address].
Applicant Name (please print):
Address:
Telephone Number:
Shareholder or leaseholder name (If different from the person
requesting a reasonable accommodation.):
Your relationship to the shareholder or leaseholder
1. Please describe the reasonable accommodation you are
requesting:
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2. Please explain why this reasonable accommodation is needed.
You should explain the connection between the disability
(physical or mental impairment) you live with and the
accommodation you are requesting. Beyond that, you do not
need to provide detailed information about the nature or severity
of the disability:
3. If you are requesting permission to have a service or emotional
support animal in your apartment, unless it is clear or obvious
that the animal is a service animal, please answer the following
questions. (Please note: if an assistance animal provides you
service and emotional support you do not need to provide
information about both categories.)
a. Type of animal (for example, dog or cat):
b. Is the animal required because of a disability?
Yes or No
c. Does the animal for which you are making a reasonable
accommodation request perform work or do tasks for you
because of your disability? Yes or No
d. If the answer to 3(c) is YES:
i. Please explain what work or tasks the animal does for
you:
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ii. Please provide a statement from a health or social
service professional indicating:
that you have a disability (i.e., you have a physical or
mental impairment); and
explaining that an animal is able to do work or perform
tasks to ameliorate symptoms or effects of the
disability.
e. If the answer to 3(c) is NO: does the animal for which you are
making a reasonable accommodation request provide
emotional support or ameliorate (improve) one or more
symptoms or effects of your disability? Yes or No
f. If the answer to 3(e) is yes, please submit a statement from a
health or social service professional stating that:
you have a disability (i.e., you have a physical or mental
impairment); and
the animal would provide emotional support or other
assistance that would ameliorate (improve) one or more
symptoms or effects of your disability and how the animal
ameliorates (improves) the symptoms or effects.
4. If you are requesting a physical change to the interior of your
unit, please describe the modifications you are requesting.
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5. If you are requesting a physical change to the exterior of your
unit or to a public or common use area, please describe the
modification you are requesting.
6. If you are requesting a different accommodation, please describe
it here:
Signature:
Date:
You will receive a response to your request in 10 calendar days. If
your request is not granted, you will receive a written explanation and
what additional information, if any, we need to make a decision about
your request.
If an individual with a disability believes that they have been denied a
reasonable accommodation or otherwise discriminated against on the
basis of disability they have the right to file a lawsuit in court or
contact one of the following agencies to file a complaint:
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New York City Commission on Human Rights
22 Reade Street
New York, NY 10007
(718) 722-3131
NYC.gov/HumanRights
US Department of Housing and Urban Development Office of
Fair Housing and Equal Opportunity
26 Federal Plaza, Rm 3532
New York, NY 10278
(212) 542-7519
http://hud.gov/complaints
New York State Division of Human Rights
1 Fordham Plaza, 4th Fl.
Bronx, NY 10458
(718) 741-8400
https://dhr.ny.gov/how-file-complaint
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Sample Form B: Service and Emotional Support Animal
Requests
Sample Health Professional Form
Resident Name:
Address:
Telephone Number:
I, (applicant name)
intend to request that the [landlord] permit me to keep an assistance
animal as a reasonable accommodation for my disability. In
connection with that application, I am requesting that you complete
this form regarding my disability.
Applicant Signature:
Date:
Name of Applicant:
Relationship to Tenant:
To be Completed by Health Professional
(“Health professional” means a person who provides medical care,
therapy or counseling to persons with disabilities, including, but not
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limited to, doctors; physician assistants; psychiatrists; psychologists;
or social workers.)
Name (please print):
Address:
Telephone Number:
A disability within the meaning of the New York City Human Rights
Law is any physical, medical, mental or psychological impairment, or
a history or record of such impairment. Does the individual identified
above have a disability? Yes or No
Does or would a service or emotional animal be able to do work or
perform tasks to ameliorate symptoms or effects of the individual’s
disability? Yes or No
If Yes, please describe:
For animals that do not perform work or do tasks for the individual,
would the animal provide emotional support or other assistance that
would ameliorate one or more symptoms or effects of the disability?
Yes or No
If YES, please describe:
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If you would like to submit additional supporting materials (other than
medical records), please provide them with this form.
Name:
Signature:
Title:
Date:
Sample Animal Registration Form
This form must be completed before or as soon as reasonably
possible after an assistance animal moves into the residence.
Thank you for your cooperation!
Background
Tenant Name:
Apartment Number:
Service/Emotional Support Animal Name:
Animal Type:
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Vaccinations
* For dogs only: Attach documentation of vaccination to this form.
Documentation can consist of proof of vaccination from veterinarian or
proof of current dog license.
Emergency Contacts
Emergency Contact #1
Name:
Phone Number:
Address:
Emergency Contact #2
Name:
Phone Number:
Address:
Tenant Acknowledgement of Rules and Request for Approval
Please initial and sign below where indicated after reviewing your
lease and reading the Assistance Animal Policy and Guidelines
included with this registration form.
______ (Initial) I have read the above Reasonable Accommodation
Policy regarding Service and Emotional Support Animals and agree to
follow it.
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______ (Initial) I have provided a photograph of my animal to
Resident Services.
I hereby request permission to have an assistance animal.
Tenant Signature:
Date:
Print Name:
Apartment Number:
Management Signature of Approval:
Management Signature:
Date:
Print Name:
Title:
