Disability Law Summaries
New York, Disability Law Summaries
New York has two laws dealing with disability discrimination in employment. The Human Rights Law, which is located in Article 15 of the state's Executive Law, is summarized at ¶33-2500 . The provisions relating to disability discrimination are also summarized below.
The full text of New York's Human Rights Act is available beginning at Employment Practices Guide ¶33-20,025.01 .
Employers covered under New York's Human Rights Law include persons who employ four or more employees (Sec. 292, as amended by Ch. 133 (A.7952), L.2007, effective Oct. 1, 2007).
Bona fide occupational qualifications are exceptions to the law (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Article 4-B of the state's Civil Rights Law, which relates to employment rights of persons with a disability accompanied by guide, hearing or service dogs, is also summarized below. The law, applicable to both public and private employers, does not apply if it can be clearly shown that a person's disability would prevent him or her from performing a particular job (Sec. 47-a).
Other disability provisions are located in the Public Building Laws at Article 4-A (Accessibility); Transportation Law, Article 6 (Transportation); Social Services Law, Article 5 (Telecommunications); and Executive Law, Article 5 (Housing and Education).
Interaction of disability laws.- State or local disability laws that provide protection greater than or equivalent to that of the Americans with Disabilities Act are not nullified by the Act, and neither are laws that provide less protection than the ADA. However, if either law provides less protection than the other, the law with the lesser standard cannot be used as a defense to the law with the higher standard.
Before making any decisions that will affect the rights of people with disabilities, state laws should be compared to the ADA and the Rehabilitation Act of 1973. A person with a disability may prefer to file charges under a state law with fewer protections if that state law has greater remedies than the ADA.
DEFINITIONS
“Direct threat” means a significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced by reasonable accommodation (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
“Disability” means (Sec. 292, as amended by Ch. 133 (A. 7952), L. 2007, effective Oct. 1, 2007):
a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions that prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques;
a record of such an impairment; or
a condition regarded by others as such an impairment, provided, however, that the term will be limited to disabilities that, upon the provision of reasonable accommodations, do not prevent an individual from reasonably performing job activities.
The Human Rights Law protects from discrimination those individuals with disabilities that, with or without reasonable accommodation, do not prevent the individual from performing the duties of the job in a reasonable manner. The definition of “disability” in the Human Rights Law, above, is more comprehensive than that under federal law, in that it covers many conditions that have been found not to be a disability under the federal Americans with Disabilities Act (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Not every disability covered by the Human Rights Law requires the consideration of reasonable accommodation. Only those disabilities that actually impede, as a matter of fact, the individual in performing the job give rise to a consideration of accommodation. This includes those situations in which the job impedes the individual's recovery or ability to obtain treatment, and accommodation can make recovery or treatment possible while the individual continues to be employed (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
For the purposes of Sec. 296(2)(a) of the Executive Law (see ACCESSIBILITY, Discrimination, below), “Discriminatory practice” includes (Executive Law, Sec. 296(2)(c), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008):
a refusal to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford facilities, privileges, advantages or accommodations to individuals with disabilities, unless such person can demonstrate that making such modifications would fundamentally alter the nature of such facilities, privileges, advantages or accommodations;
a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services, unless such person can demonstrate that taking such steps would fundamentally alter the nature of the facility, privilege, advantage or accommodation being offered or would result in an undue burden;
a refusal to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and
where such person can demonstrate that the removal of a barrier under item (3) just above is not readily achievable, a failure to make such facilities, privileges, advantages or accommodations available through alternative methods if such methods are readily achievable.
For the purposes of Sec. 296(2) of the Executive Law, “readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include (Executive Law, Sec. 296(2)(d), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008):
the nature and cost of the action needed under this subdivision;
the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources or the impact otherwise of such action upon the operation of the facility;
the overall financial resources of the place of public accommodation, resort or amusement; the overall size of the business of such a place with respect to the number of its employees; the number, type and location of its facilities; and
the type of operation or operations of the place of public accommodation, resort or amusement, including the composition, structure and functions of the workforce of such place; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to such place.
“Auxiliary aids and services” include (Executive Law, Sec. 296(2)(d), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008):
qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
qualified readers, taped texts or other effective methods of making visually delivered materials available to individuals with visual impairments;
acquisition or modification of equipment or devices; and
other similar services and actions.
“Undue burden” means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered shall include (Executive Law, Sec. 296(2)(d), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008):
the nature and cost of the action needed under this article;
the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
the geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
if applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
if applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
Executive Law, Sec. 296(2)(c) and (d) (just above) do not apply to any air carrier, the national railroad passenger corporation, or public transportation facilities, vehicles or services owned, leased or operated by the state, a county, city, town or village, or any agency thereof, or by any public benefit corporation or authority (Executive Law, Sec. 296(2)(e), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
“Employee” does not include individuals employed their parents, spouses or children, or in domestic service (Sec. 292, as amended by Ch. 133 (A. 7952), L. 2007, effective Oct. 1, 2007).
“Employer” includes persons who employ four or more employees (Sec. 292, as amended by Ch. 133 (A. 7952), L. 2007, effective Oct. 1, 2007).
“Essential functions” are those fundamental to the position. A function is essential if not performing that function would fundamentally change the job or occupation for which the position exists. What is an essential function is a factual question to be resolved by all relevant evidence. Evidence for determining the essential functions of a particular position would include, but would not be limited to, the following (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999):
the employer's judgment as to which functions are essential, particularly where so indicated in a preexisting written job description;
how often the function is actually performed by other employees in the position;
how many other employees are available to whom the function could be reallocated by job restructuring;
the direct and specific consequences to the employer's business if the function is not performed by the particular individual with a disability;
the terms of a collective bargaining agreement.
“Guide dog” means any dog that is trained to aid a person who is blind by a recognized guide dog training center or professional guide dog trainer, and is actually used for such purpose (Sec. 292, as amended by Ch. 133 (A.B. 7952), L. 2007, effective Oct. 1, 2007).
“Hearing dog” is defined as any dog that is trained to aid a person with a hearing impairment by a recognized hearing dog training center or professional hearing dog trainer, and is actually used for such purpose (Sec. 292, as amended by Ch. 133 (A.B. 7952), L. 2007, effective Oct. 1, 2007).
“Service dog” means any dog that is trained to work or perform specific tasks for the benefit of a person with a disability by a recognized service dog training center or professional service dog trainer, and is actually used for such purpose Sec. 292, as amended by Ch. 133 (A.B. 7952), L. 2007, effective Oct. 1, 2007).
“Reasonable accommodation” means actions taken that permit an employee or prospective employee with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held and include, but are not limited to, provision of an accessible worksite, acquisition or modification of equipment, support services for persons with impaired hearing or vision, job restructuring and modified work schedules; provided, however, that such actions do not impose an undue hardship on the business, program or enterprise of the entity from which action is requested (Sec. 292, as amended by Ch. 133 (A. 7952), L. 2007, effective Oct. 1, 2007).
Reasonable accommodations may include, but are not limited to, making existing facilities more readily accessible to individuals with disabilities; acquisition or modification of equipment; job restructuring; modified work schedules; adjustments to work schedule for treatment or recovery; reassignment to an available position; adjustment of examinations, training materials or policies; providing readers or interpreters (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Reasonable accommodation does not include, among other things: providing for personal care needs, such as a personal care assistant, although such a personal care assistant should be accommodated where provided by the employee at no cost to the employer; providing non-work-related aids, such as a personal hearing aid or wheelchair, which are the employee's own responsibility (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Whether an accommodation that has been requested or is under consideration is a “reasonable accommodation” required by the Human Rights Law turns on a balancing of the following factors (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999):
efficacy or benefit provided by the accommodation toward the impediments to performance caused by the disability;
convenience or reasonableness of the accommodation for the employer, including its comparative convenience as opposed to other possible accommodations; and
the “hardships,” costs or problems it will cause for the employer, including those that may be caused for other employees.
Accommodations that pose an “undue hardship” for the employer will not be required. “Undue hardship” means significant difficulty or expense to the employer. In determining whether an accommodation would result in undue hardship, consideration will be given to any relevant factor. Relevant factors can include, but are not necessarily limited to, those set forth in the Human Rights Law, at Sec. 296.3(b) (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999):
overall size of the business, program or enterprise with respect to the number of employees, number and type of facilities, and size of budget;
type of operation in which the business, program or enterprise is engaged, including the composition and structure of the workforce; and
nature and cost of the accommodation needed, including consideration of any money available from other sources to assist the employer in paying the cost.
Ability to reasonably perform the “activities involved in the job or occupation” means the ability, with or without accommodation, to satisfactorily perform the essential functions of the job or occupation (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Satisfactory performance means minimum acceptable performance of the essential functions of the job as established by the employer. The employer's judgment as to what is minimum acceptable performance will not be second-guessed, so long as standards for performance are applied equivalently to all employees in the same position. Such standards for satisfactory performance may include minimum productivity standards or quotas (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
ACCESSIBILITY
All persons in New York are entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. Accordingly, no person (owner, lessee, proprietor, manager, superintendent, agent or employee) may refuse, directly or indirectly, to withhold from or deny to any person any such accommodation, advantage, facility or privilege (Sec. 40).
Places of public accommodation.- A place of public accommodation, resort or amusement includes inns, taverns, road houses and hotels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest. Other places of public accommodation include restaurants, or eating houses, or any place where food is sold for consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure where spirituous or malt liquors are sold; ice cream parlors, confectioneries, soda fountains, and all stores where ice cream, ice and fruit preparations or their derivatives, or where beverages of any kind are retailed for consumption on the premises; retail stores and establishments, dispensaries, clinics, hospitals, bath houses, barber shops, beauty parlors, theaters, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, golf courses, gymnasiums, shooting galleries, billiard and pool parlors and public libraries (Sec. 40).
Similarly, garages, all public conveyances, operated on land or water, as well as their stations and terminals; public halls and public elevators of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, are public accommodations (Sec. 40).
Kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of the regents of the state of New York or supported in whole or in part by public funds or by contributions solicited from the general public are also public accommodations (Sec. 40).
Penalties. Any person who or any agency, bureau, corporation or association that violates the equal access provisions or who aids or incites its violation are, for each and every violation, liable for a penalty of not less than $100 nor more than $500, to be recovered by the person aggrieved in any court of competent jurisdiction in the county in which the plaintiff or the defendant resides (Sec. 41).
Moreover, individual liability extends to the defendant's managers, owners and officers, acting in his or her behalf, as the case may be. For every such offense they will be deemed guilty of a misdemeanor, and, upon conviction, will be fined not less than $100 nor more than $500, or will be imprisoned not less than 30 days nor more than 90 days, or both. Before the commencement of any action under this section, notice must be served upon the attorney general (Sec. 41).
Public buildings.- New construction, reconstruction, rehabilitation, alteration or improvement (substantial structural or facility changes, not minor repairs necessary for ordinary maintenance) of public buildings and facilities must conform to the requirements of the state building construction code relating to facilities for the individuals with physical disabilities, unless the requirements impair the building's structural stability (Secs. 50(6) and 51).
For those specific requirements, see the New York Uniform Fire Prevention and Building Code Act, which is located in Article 18 of the Executive Code.
The accessibility standards apply to public buildings that are likely to be used by persons with physical disabilities. This includes any building or portion thereof (other than a privately owned residential structure, public housing structure, police, fire or correction structure) constructed wholly or partially with state or municipal funds, whether tax funds, funds obtained through bond issues or grants or loans under any state law. Public buildings include, but are not limited to, theaters, concert halls, auditoriums, museums, schools, libraries, recreation facilities, transportation terminals and stations, factories, office buildings and business establishments (Sec. 50(1)).
People with physical disabilities have (a) impairments requiring confinement to wheelchairs; or (b) impairments causing difficulty or insecurity in walking or climbing stairs or requiring the use of braces, crutches or other artificial supports; or impairments caused by amputation, arthritis, spastic condition or pulmonary, cardiac or other ills rendering the individual semi-ambulatory; or (c) total or partial impairments of hearing or sight causing insecurity or likelihood of exposure to danger in public places; or (d) impairments due to conditions of aging and incoordination (Sec. 50(5)).
Compliance. The official, governing body or board having design approval authority for state or municipal building construction will determine whether a proposed structure is a “public building” and will ensure that the design of any such building complies with the accessibility requirements (Sec. 52).
Assistive listening devices.- All new public buildings built after January 1, 1991, containing an auditorium, theater, meeting hall, hearing room, amphitheater, or room used in any similar capacity, must be equipped with an assistive listening system for use by hearing impaired persons who require the use of such a system to improve their reception of sound (Sec. 53).
Service animals.- No person may be denied admittance to and/or equal use of and enjoyment of any public facility solely because the person is accompanied by a guide dog, hearing dog or service dog. Accordingly, no one may be denied admittance, equal use and enjoyment of any places where food is offered for sale, theaters, including both live playhouses and motion picture establishments, and all other places of public accommodations, convenience, resort, entertainment, or business to which the general public is normally invited or permitted, including those maintained by the state or by any of its political subdivisions, based solely on the use of a guide dog, hearing dog or service dog (Sec. 47).
Also, persons with disabilities accompanied by guide dogs, hearing dogs or service dogs are guaranteed the right to have the dogs in their immediate custody while using the public facilities described above. The individuals may not be charged for the admittance of their dogs. These rights are also applicable to persons qualified to train dogs to aid and guide persons with disabilities while they are engaged in training activities (Sec. 47-b).
Any person or entity, public or private, that does not comply with the service dog provisions, violates the law. Those who violate the service dog provisions two or more times within a two year period shall be guilty of a violation punishable by a fine of $1,000 (Sec. 47-c, as amended by A. 8752, L. 2003, effective Jan. 1, 2005).
Discrimination.- It is an unlawful discriminatory practice for any owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the disability of any person, to refuse, withhold from or deny any of the accommodations, advantages, facilities or privileges thereof (Secs. 40 and 296(2)(a), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
It is also unlawful to publish, circulate, issue, display, post or mail written or printed communications, notices or advertisements that any of the accommodations mentioned above will be refused an individual because of a disability or that persons with disabilities are unwelcome, objectionable or not acceptable, desired or solicited (Secs. 40 and 296(2)(a), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
All persons within the jurisdiction of New York are entitled to the equal protection of the laws of the state or any of its subdivisions (Sec. 40-c(1)). No person may, because of disability, as the term is defined in Section 292 of the Executive law, be subjected to any discrimination in his or her civil rights, or to any harassment, as defined in Section 240.25 of the penal law, in the exercise thereof, by any other person or by any firm, corporation or institution, or by the state or any agency or subdivision of the state (Sec. 40-c(2)).
Penalties.- Any person who violates the civil rights ban on discrimination or aids or incites its violation is, for each and every violation, liable for a penalty of not less than $100 nor more than $500 to be recovered by the person aggrieved in any court of competent jurisdiction in the county in which the defendant resides. In addition, any person who violates the ban is guilty of a class A misdemeanor. At or before the commencement of any action under this section, notice must be served upon the attorney general (Sec. 40-d).
Innkeepers and common carriers that refuse to entertain guests or carry passengers are guilty of misdemeanors (Sec. 40-e). Similar penalties will be assessed against any place, building or park that discriminates against any class of persons in the price of admission (Sec. 40-f).
EMPLOYMENT
It is an unlawful discriminatory practice for an employer, because of the disability of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment (Sec. 296(1)(a), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Apprenticeship programs.- Employers must admit and employ to a guidance program, apprenticeship training program, on-the-job training program, executive training program, or other occupational training or retraining program without regard to disability (Sec. 296(1-a), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Advertisements.- Employers may not print or circulate, or cause to be printed or circulated, any statement, advertisement or publication that expresses any limitations, specification or discrimination with regard to disability or any intent to make any such limitation, specification or discrimination, unless based on a bona fide occupational qualification (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Retaliation.- Employers may not retaliate or discriminate against an individual because the individual opposes any unlawful employment practice or files a complaint, testifies or assists in any enforcement proceeding (Sec. 296(1)(e), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Reasonable accommodation.- It is an unlawful discriminatory practice for an employer to refuse to provide reasonable accommodations to the known disabilities of an employee or prospective employee in connection with a job or occupation sought or held or participation in a training program (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Accommodations that can be demonstrated to impose an undue hardship on the operation of an employer's business, program or enterprise are not required. In making such a demonstration with regard to undue hardship, the factors to be considered include (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008):
the overall size of the business, program or enterprise with respect to the number of employees, number and type of facilities and size of budget;
the type of operation that the business, program or enterprise is engaged in, including the composition and structure of the workforce; and
the nature and cost of the accommodation needed.
The termination of the employment of a person who, even upon the provision of reasonable accommodations, is physically unable to perform his or her duties, is not unlawful (Sec. 296(3)(A), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Job restructuring.- The Human Rights Law does not require, as a reasonable accommodation in the form of job restructuring, the creation of a completely unique position with either qualifications or functions tailored to the abilities of the individual with a disability (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Reasonable accommodation, in the form of job restructuring, is required if an individual with a disability meets the bona fide job qualifications, and can satisfactorily perform the essential functions of the position; the duties that the individual cannot perform due to the disability, and that are not essential to the position, must not be required of the individual (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Who is entitled to reasonable accommodation.- To be entitled to the protection of the Human Rights Law, an individual with a disability must have the requisite job qualifications as well as be able to satisfactorily perform in the job (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
An individual with a disability must be otherwise qualified for the job by education, skill, experience, ability, etc., to the same extent that such education, skill, experience, ability, etc., are required as a bona fide job qualification for nondisabled applicants or employees (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
An individual with a disability must be able, with or without accommodation, to attain “reasonable performance.” Reasonable performance is not perfect performance or performance unaffected by the disability, but reasonable job performance, reasonably meeting the employer's needs to achieve its business goals (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
To be entitled to a reasonable accommodation, the individual must meet the qualification and performance standards set forth above, and must have a disability and a need for an accommodation that are known, or are made known, to the employer (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
An employer must consider provision of reasonable accommodation where the need for accommodation is known to the employer, or where accommodation is requested by applicant or employee (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Bona fide job qualifications.- When an employer fills a position with a specific purpose of acquiring special ability or expertise (for example: technical expertise, foreign language skill, physical strength in a firefighter), even if the amount of time actually spent on the job using the special ability or expertise is small, this ability or expertise is a bona fide qualification for the job (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
As is true in any area covered by the Human Rights Law, an employer may hire the applicant who is most qualified with regard to the bona fide job qualifications, and is not required to hire an applicant with a disability simply because the applicant meets the minimum job qualifications if there are other more qualified applicants (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Safety concerns/objectionable behaviors.- The Human Rights Law does not require accommodation of behaviors that do not meet the employer's workplace behavior standards that are consistently applied to all similarly situated employees, even if these behaviors are caused by a disability. This would include, but not be limited to (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999):
dress codes, grooming standards and time and attendance policy, though reasonable and necessary deviations must be allowed as accommodations;
conduct standards, including those that prohibit aggressive or threatening behavior;
discipline for theft of company property by a kleptomaniac;
discipline for intoxication or impairment on the job by an alcoholic.
Reasonable accommodation is not required where the disability or the accommodation itself poses a “direct threat” (see DEFINITIONS above) (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
In determining whether a direct threat exists, the employer must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective information, to ascertain: the nature, duration and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable accommodations, such as modification or policies, practices or procedures, will mitigate the risk (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Some jobs may have a bona fide classification as “safety sensitive,” such as, for example, vehicle operators or persons who work with children. Heightened consideration of direct threat is to be encouraged in bona fide safety sensitive jobs (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Drug addiction and alcoholism.- Alcoholism and drug addict ion are diseases. However, an individual who is currently using drugs illegally is not protected in this regard by the Human Rights Law. The law does protect an individual who is a recovered/recovering alcoholic or drug addict (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Adjustments to the work schedule, where needed to allow for ongoing treatment, must be allowed as an accommodation where reasonable, if the individual is still able to perform the essential functions of the job, including predictable and regular attendance (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
The recovered/recovering alcoholic or drug addict should be expected to perform job tasks just as anyone else with similar skills, experience and background (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Where the employer has knowledge of the current illegal use of drugs, the employee is not entitled by law to accommodation, and may be terminated (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Temporary disabilities.- A current employee experiencing a temporary disability is protected by the Human Rights Law where the individual will be able to satisfactorily perform the duties of the job after a reasonable accommodation in the form of a reasonable time for recovery (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
The Human Rights Law requires no more than de minimis accommodations for temporary disabilities in the areas of worksite accessibility, acquisition or modification of equipment, job restructuring, or support services for persons with temporarily impaired hearing or vision (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
The Human Rights Law may require reasonable accommodation of temporary disabilities in the areas of modified work schedules, reassignment to an available position or available light duty, or adjustments to work schedules for recovery. The employer's past practice, preexisting policies regarding leave time and/or light duty, specific workplace needs, the size and flexibility of the relevant workforce, and the employee's overall attendance record will be important factors in determining reasonable accommodation in this context (NYCRR, Title 9, Sec. 466.11, effective August 4, 1999).
Service animals.- Employers may not discriminate against a blind person, a hearing impaired person, or an individual with a disability who uses a guide dog, hearing dog or service dog (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Unless it can be clearly shown that a person's disability would prevent that person from performing a particular job, no person who is otherwise qualified will be denied equal opportunities to obtain or maintain employment or to advance in position in a job solely because that individual is a person with a disability and is accompanied by a guide dog, hearing dog or service dog, regardless of whether the employer or prospective employer is the state of New York or any political subdivision of the state or any other category of employer (Sec. 47-a).
Employment applications.- Employers may not use any form of application for employment that expresses any limitations, specification or discrimination with regard to disability, or any intent to make any such limitation, specification or discrimination, unless based on a bona fide occupational qualification (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Preemployment inquiries.- Employers may not make any inquiry in connection with prospective employment that expresses any limitations, specification or discrimination with regard to disability or any intent to make any such limitation, specification or discrimination, unless based on a bona fide occupational qualification (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Civil service.- The Department of Civil Service or the Department of Personnel of any city containing more than one county may request information from applicants for civil service examinations concerning any of the characteristics outlined above for the purpose of conducting studies to identify and resolve possible problems in recruitment and testing of members of minority groups to insure the fairest possible and equal opportunities for employment in the civil service for all persons, regardless of disability (Sec. 296, as amended by Ch. 133 (A. 7952), L. 2007, effective Oct. 1, 2007).
Public works contracts.- Discrimination in employment on public works contracts because of disability is prohibited. Every contract for or on behalf of the state or a municipality for the construction, alteration or repair of any public building or public work or for the manufacture, sale or distribution of materials, equipment or supplies must contain provisions by which the contractor with the state or municipality agrees that there will be no discrimination against persons with disabilities in the hiring of employees for the performance of work under the contract. Should discrimination occur, a $50 per person, per day penalty may be deducted from the amount payable to the contractor (N.Y. Labor Law, Art. 8, Sec. 220-e).
Minimum wages.- The wage board may recommend, to the extent necessary in order to prevent curtailment of opportunities for employment, regulations for the employment of individuals whose earning capacity is affected or impaired by physical or mental deficiency or injury, under special certificates issued by the commissioner, at subminimum wages and for fixed periods of time (Sec. 652, as amended by Ch. 747 (A. 11760), L. 2004, effective Dec. 6, 2004).
See ¶33-1000 for additional information on minimum and subminimum wages.
Genetic tests.- An employer may not directly or indirectly solicit, require, or administer a genetic test to a person, or solicit or require information from which a predisposing genetic characteristic can be inferred as a condition of employment or preemployment application. Also, an employer may not buy or otherwise acquire the results or interpretation of an individual's genetic test results or information from which a predisposing genetic characteristic can be inferred or to make an agreement with an individual to take a genetic test or provide genetic test results or such information (Sec. 296(19), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Additional genetic testing information, contained in the New York Human Rights Law, is located at ¶33-8700 .
Policies.- Employers may adopt and carry out an affirmative action plan consistent with the Human Rights Division's regulations to increase the employment of members of a minority group that has a state-wide unemployment rate that is disproportionately high in comparison with the state-wide unemployment rate of the general population (Sec. 296, as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
TRANSPORTATION
All persons in New York are entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. Accordingly, no person (owner, lessee, proprietor, manager, superintendent, agent or employee) may refuse, directly or indirectly, to withhold from or deny to any person any such accommodation, advantage, facility or privilege (Sec. 40). Places of public accommodation, resort or amusement include garages, all public conveyances, operated on land or water, as well as their stations and terminals (Sec. 40).
Penalties will be assessed when the equal access provisions are violated.
Accessibility standards.- With respect to the reconstruction, rehabilitation, alteration or improvement of transportation facilities, the obligations of the authorities for complying with the requirements of the New York state building construction code relating to facilities for individuals with disabilities are limited to compliance for rapid transit terminals or stations of the New York city transit authority or of the Staten Island rapid transit operating authority (Sec. 51(b)(2)).
Service animals.- No person will be denied admittance to any public facility solely because he or she is accompanied by a guide dog, hearing dog or service dog. Facility in this context includes public and private transportation facilities and conveyances (Sec. 47).
Persons with disabilities accompanied by guide dogs, hearing dogs or service dogs are guaranteed the right to have the dogs in their immediate custody while using the public facilities described above. The individuals may not be charged for the admittance of their dogs. These rights are also applicable to persons qualified to train dogs to aid and guide persons with disabilities while they are engaged in training activities (Sec. 47-b).
Persons with disabilities are also guaranteed the right to be accompanied by guide dogs, hearing dogs or service dogs on all common and contract carriers of passengers by motor vehicle (Transportation Law, Art. 6, Sec. 147).
“Guide dogs,” “hearing dogs,” or “service dogs” are dogs that are properly harnessed and have been or is being trained by a qualified person, to aid or guide a person with a disability (Sec. 47-b(4)). Disability is defined by Sec. 292, as shown above in DEFINITIONS.
Any person or entity, public or private, that does not comply with the service dog provisions, violates the law. Those persons who violate the service dog provisions two or more times within a two year period shall be guilty of a violation punishable by a fine of $1,000 (Sec. 47-c, as amended by S. 8752, L. 2003, effective Jan. 1, 2005).
TELECOMMUNICATIONS
Participation in the loan of monies from the state's equipment loan fund for the disabled is available to all disabled persons on the basis of need. The loan fund provides the disabled with the financial opportunity to purchase or replace essential equipment used by them for daily living or vocational functioning following rehabilitation, including, telecommunication devices for the deaf and hearing impaired. Loans are available directly to the disabled person, the parent, legal guardian, or individual with whom such disabled person resides. Maximum amount of the loan is $4,000 per applicant (Sec. 326-b).
HOUSING
All persons in New York are entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. Accordingly, no person (owner, lessee, proprietor, manager, superintendent, agent or employee) may refuse, directly or indirectly, to withhold from or deny to any person any such accommodation, advantage, facility or privilege. A place of public accommodation, resort or amusement includes public halls and public elevators of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants (Sec. 40).
Penalties, as described above, will be assessed when the equal access provisions are violated.
Publicly-assisted housing.- It is unlawful for the owner, lessee, sublessee, assignee, or managing agent of publicly-assisted housing accommodations to (Sec. 296(2-a), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008):
refuse to rent or lease or otherwise deny to or withhold from any person or group of persons such housing accommodations because of the disability of such person or persons.
discriminate against any person because of his or her disability in the terms, conditions or privileges of any publicly-assisted housing accommodations or in the furnishing of related facilities or services.
cause to be made any written or oral inquiry or record concerning the disability of a person seeking to rent or lease any publicly-assisted housing accommodation.
refuse to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by the said person, if the modifications are necessary to afford the person full enjoyment of the premises. In the case of rentals, modifications may be conditioned on restoring the interior to the condition that existed before modification (reasonable wear and tear excepted).
refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations are necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.
in connection with the design and construction of covered multi-family dwellings for first occupancy after March 13, 1991, fail to design and construct dwellings in accordance with the accessibility requirements of the New York state uniform fire prevention and building code to provide that: the public use and common use portions of the dwellings are readily accessible to and usable by persons with disabilities; all doors are designed in accordance with the New York state uniform fire prevention and building code to allow passage into and within all premises and are sufficiently wide to allow passage by persons in wheelchairs; and all premises within covered multi-family dwelling units contain an accessible route into and through the dwelling; light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; reinforcements in the bathroom walls to allow later installation of grab bars; and usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space.
Private housing.- There are similar provisions regarding discrimination against persons with disabilities in private housing accommodations (Sec. 296(5) and (18), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Exceptions. However, those provisions do not apply to the rental of a housing accommodation in a building that 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 there. Nor do they apply to the rental of a room or rooms in a housing accommodation, if the owner or members of the owner's family reside there (Sec. 296(5)(a), as amended by Ch. 534 (S. 4956), L.2007, effective Sept. 4, 2008).
Service animals. No person may be denied admittance to and/or equal use of and enjoyment of any public facility or business to which the general public is normally invited solely because the person is accompanied by a guide dog, hearing dog or service dog (Sec. 47). “Public facility” includes, in this context all forms of public and private housing accommodations, whether permanent or temporary (Sec. 47(2)).
Also, persons with disabilities accompanied by guide dogs, hearing dogs or service dogs are guaranteed the right to have the dogs in their immediate custody while using the public facilities described above. The individuals may not be charged for the admittance of their dogs. These rights are also applicable to persons qualified to train dogs to aid and guide persons with disabilities while they are engaged in training activities (Sec. 47-b).
“Guide dogs,” “hearing dogs,” or “service dogs” are dogs that are properly harnessed and have been or is being trained by a qualified person, to aid or guide a person with a disability (Sec. 47-b(4)). Disability is defined by Sec. 292, as shown above in DEFINITIONS.
Any person or entity, public or private, that does not comply with the service dog provisions, violates the law. Those persons who violate the service dog provisions two or more times within a two year period shall be guilty of a violation punishable by a fine of $1,000 (Sec. 47-c, as amended by A. 8752, L. 2003, effective Jan. 1, 2005).
Enforcement.- The enforcement procedures described below apply to cases of housing discrimination. With respect to housing discrimination only, after the filing of any complaint, the New York Human Rights Division will, within 30 days after receipt, serve a copy on the respondent and all persons it deems to be necessary parties, and make a prompt investigation. Within 180 days after a complaint is filed, the Division will determine whether it has jurisdiction and, if so, whether there is probable cause to believe that the person named in the complaint has engaged or is engaging in an unlawful discriminatory practice (Sec. 297(2)(b)).
Injunction.- At any time after the filing of a complaint with the Division alleging an unlawful discriminatory practice, if the Division determines that the respondent acting unlawfully and that action tends to render ineffectual any order the commissioner may enter in the proceeding, the commissioner may apply to the appropriate county supreme court for injunctive relief, including a temporary restraining order (Sec. 297(6)).
EDUCATION
All persons in New York are entitled to the full and equal accommodations, advantages, facilities and privileges of any places of public accommodations, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons (Sec. 40).
Accordingly, no person (owner, lessee, proprietor, manager, superintendent, agent or employee) may refuse, directly or indirectly, to withhold from or deny to any person any such accommodation, advantaged, facility or privilege. A place of public accommodation, resort or amusement includes kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses, and all educational institutions under the supervision of the regents of the state of New York or supported in whole or in part by public funds or by contributions solicited from the general public (Sec. 40).
Penalties will be assessed when the equal access provisions are violated.
Service animals.- No person may be denied admittance to and/or equal use of and enjoyment of any public facility solely because the person is accompanied by a guide dog, hearing dog or service dog (Sec. 47 (1)). “Public facility” in this context includes all educational facilities and institutions, including those maintained by the state or by any of its political subdivisions or business to which the general public or any group of persons is normally or customarily invited or permitted (Sec. 47(2)).
Also, persons with disabilities accompanied by guide dogs, hearing dogs or service dogs are guaranteed the right to have the dogs in their immediate custody while using the public facilities described above. The individuals may not be charged for the admittance of their dogs. These rights are also applicable to persons qualified to train dogs to aid and guide persons with disabilities while they are engaged in training activities (Sec. 47-b).
“Guide dogs,” “hearing dogs,” or “service dogs” are dogs that are properly harnessed and have been or is being trained by a qualified person, to aid or guide a person with a disability (Sec. 47-b(4)). Disability is defined by Sec. 292, as shown above in DEFINITIONS.
Any person or entity, public or private, that does not comply with the service dog provisions, violates the law. Those persons who violate the service dog provisions two or more times within a two year period shall be guilty of a violation punishable by a fine of $1,000 (Sec. 47-c, as amended by A. 8752, L. 2003, effective Jan. 1, 2005).
Discrimination.- It is an unlawful discriminatory practice for an education corporation or association that holds itself out to the public to be nonsectarian and exempt from taxation to deny the use of its facilities because of a person's disability to any person who is otherwise qualified (Sec. 296(4), Ch. 106 (S. 5679), L. 2003, effective July 1, 2003).
ENFORCEMENT
The following enforcement procedures apply to acts of discrimination prohibited by the New York Human Rights Law.
Complaint.- A person aggrieved by an alleged unlawful discriminatory practice may file a complaint with the New York Human Rights Division within one year of the date of occurrence, or the Division itself may issue a complaint (Sec. 297, as amended by Ch. 166 (A. 8413), L. 1999, effective July 18, 2000).
Any employer whose employees refuse to cooperate with the antidiscrimination law may file a complaint asking for assistance by conciliation or other remedial action (Sec. 297(1), as amended by Ch. 166 (A. 8413), L. 1999, effective July 18, 2000).
Investigation and conciliation.- If, after a prompt investigation, there is probable cause that the unlawful discriminatory practice occurred, the Division may try to eliminate the effect of the alleged violation by means of conference, conciliation and persuasion (Sec. 297(2a) and (3a)).
If conciliation is not successful, the Division will notice the complaint for hearing (Sec. 297(3b)). However, the Division has discretion to dismiss the complaint on grounds of administrative convenience if the complainant's objections to the proposed conciliation agreement are without substance or that noticing the complaint for hearing is undesirable (Sec. 297(3c), as amended by Ch. 166 (A. 8413), L. 1999, effective July 18, 2000).
The Division may, subject to judicial review, dismiss the complaint on grounds of untimeliness if the complaint is untimely or on the grounds that the election of remedies is annulled (Sec. 297(3c), as amended by Ch. 166 (A. 8413), L. 1999, effective July 18, 2000).
A voluntary arbitration procedure administered by the American Arbitration Association is available (Sec. 297(4a)(ii)).
Hearing.- Within 270 days after a compliant is filed, or within 120 days after a court has overturned the Division's dismissal of the complaint, the Division must set and notice the complaint for public hearing (Sec. 297(4a), as amended by Ch. 166 (A. 8413), L. 1999, effective July 18, 2000).
Relief.- Within 180 days after the commencement of a hearing, a determination must be made. Upon a finding of an unlawful discriminatory practice, an order will be issued that will effectuate the purposes of the law that may include, separately or in combination, the following provisions requiring the employer or other entity to (Sec. 297(4c), as amended by Ch. 166 (A. 8413), L. 1999, effective July 18, 2000):
cease and desist from the unlawful practice;
take affirmative action such as hire, reinstate or upgrade the individual with or without back pay;
admit or restore the individual in a guidance program, apprenticeship training program, on-the-job training program or other occupational training or retraining program;
pay the individual compensatory damages; and
report as to the manner of compliance.
pay the state any profits obtained through the Commission of unlawful discriminatory acts.
When housing discrimination is involved, punitive damages in an amount not to exceed $10,000 may be ordered (Sec. 297(4c), as amended by Ch. 166 (A. 8413), L. 1999, effective July 18, 2000).
Compliance.- Not later than one year from the date of a conciliation agreement or an order issued after a hearing, or at any time within its discretion, the Division will investigate to determine whether the employer or other entity is complying with the terms of the agreement or order. Upon a finding of noncompliance, the Division will take appropriate steps to assure compliance (Sec. 297(7)).
Court action.- Injunctive relief may be obtained if the Division determines that some action may be taken to render any order of the commissioner ineffectual (Sec. 297(6)).
Complainant's right to sue.- Any person claiming to be aggrieved by an unlawful discriminatory practice has a cause of action for damages and other appropriate remedies, unless an administrative complaint was filed. If the complaint is dismissed on the grounds of administrative convenience, untimeliness or on the grounds that the election of remedies is annulled, the employee may bring a suit as if no complaint had been filed with the Division. At any time before a hearing, the person may request that his or her complaint so the human rights claim may be pursued in court, as long as it is not limited by the statute of limitations in effect when the complaint was initially filed with the Division. A complaint filed by the Equal Employment Opportunity Commission under federal law does not constitute the filing of a complaint under this provision (Sec. 297(9), as amended by S. 5110, L. 1997, effective August 5, 1997).
WHO TO CONTACT
Contact the Human Rights Division, One Fordham Plaza, 4th Floor. Bronx, New York, 10458. Telephone: (718) 941-8400, TDD: (718) 741-8300.
PENALTIES
Commission orders.- Violations of Commission orders under New York's Human Rights Law may be punishable by a fine of not more than $500 or imprisonment for not more than one year, or both (Sec. 299).
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