Under the NYCHRL, the employer must prove that indefinite leave constitutes undue hardship

On October 10, 2013, the New York Court of Appeals ruled that an indefinite leave for a disability is not per se an unreasonable accommodation, but that it is the employer’s burden to plead and prove undue hardship.

Plaintiff Giuseppe Romanello worked as an executive for Intesa and its predecessor for approximately 25 years when he became ill and unable to work. He was diagnosed with a series of disorders including major depression. Mr. Romanello was out of work for almost five months when Intesa sent him a letter stating that his FMLA was about to expire and that he needed to make a choice between returning to work or abandoning his position. M. Romanello responded, through his counsel, that he has « been suffering from severe and disabling illnesses that have prevented him, and continue to prevent him, from working in any capacity, let alone in the capacity in which he had been serving [Intesa] » and that Mr. Romanello “has not at any time evinced or expressed an intention to ‘abandon his position’ with [Intesa]. His counsel added that a return work date could not be determinated. Following this response of Mr. Romanello’s counsel, Intesa terminated Mr. Romanello’s employment.

In his claim against Intesa, Mr. Romanello stated that Intesa discriminated against him on the basis of his disability in violation of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). The lower courts dismissed plaintiff’s claims under both laws reasoning that Romanello had requested an indefinite leave which is not a reasonable accommodation under those laws. The Appellate Division voted to reinstate the Mr. Romanello’s claim under the NYCHRL because under the NYCHRL, the term « disability » is to be construed broadly in favor of the Plaintiff.

The New York Court of Appeals held that:
« The NYCHRL requires that an employer “make reasonable accommodation to enable a person with a disability to satisfy the essential requisites of a job . . . provided that the disability is known or should have been known by the [employer].” Contrary to the NYSHRL, it is the employer’s burden to prove undue hardship (Phillips, 66 AD3d at 183). And, the NYCHRL provides employers an affirmative defense if the employee cannot, with reasonable accommodation, “satisfy the essential requisites of the job” (Administrative Code 8-107 [15] [b]). Thus, the employer, not the employee, has the “pleading obligation” to prove that the employee “could not, with reasonable accommodation, satisfy the essential requisites of the job”.

The Court concluded that :
« Although the employee, through his letter from counsel, made his disability known to his former employer, because his employer did not meet its obligation under Administrative Code of the City of NY § 8-107(1)(a) of the NYCHRL to plead and prove that the employee could not perform his essential job functions with an accommodation, that claim for disability discrimination should not have been dismissed. »

If you believe you are disabled under the New York State Human Rights Law or/and the New York City Human Rights Law and are being discriminated against by your employer, please contact The Harman Firm, LLP.