OPINION OF THE COURT
The issue before us is whether, on a motion for summary judgment disposing of an employee’s disability discrimination claims under the New York City Human Rights Law (see Administrative Code of City of NY § 8-107) and the New York State Human Rights Law (see Executive Law § 296), an employer’s failure to consider the reasonableness of a proposed accommodation for a generally qualified employee’s disability via a good faith interactive process precludes the employer from obtaining summary judgment. In resolving this issue, we reiterate that the State Human Rights Law and the City Human Rights Law set forth distinct legal standards for establishing the existence of a covered disability that can be reasonably accommodated. Despite those differing standards, we conclude that both statutes generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee’s request for a particular accommodation by engaging in a good faith interactive process regarding the feasability of that accommodation.
I
A
In 1979, plaintiff William Jacobsen began his employment with defendant New York City Health and Hospitals Corporation (HHC). Plaintiff joined HHC as an assistant health facilities planner. In this role, roughly twice a week, plaintiff had to
In August 2005, HHC reassigned plaintiff to its Queens hospital network, and he primarily oversaw projects at the Queens Hospital Center (QHC), where HHC was conducting extensive renovations and asbestos abatement. As a result of this transfer, plaintiff had to relocate his office to QHC and visit construction sites more frequently. Plaintiff could no longer visit the central office in Manhattan on a regular basis. In September 2005, plaintiff received a new diagnosis of pneumoconiosis, an occupational lung disease caused by repeated and prolonged inhalation of asbestos or other dust particles.
In October 2005, plaintiff requested a three-month medical leave of absence, during which he would submit to an open lung biopsy to further evaluate his condition. In support of plaintiffs application for medical leave, his physician, Gwen Skloot, M.D., certified to HHC that plaintiff ‘ ‘currently[ j [could not] perform usual tasks” and “should not be exposed to inhaled dusts.” In December 2005, Dr. Skloot sent a letter to HHC informing the corporation that, because plaintiff “ha[d] been treated with systemic corticosteroids and ha[d] demonstrated clinical improvement,” he was “ready to return to work.” However, Dr. Skloot cautioned that plaintiff could “not be further exposed to any type of environmental dust” or “be present at any construction site.” In a reply letter, HHC asked Dr. Skloot to identify the “exact date [plaintiff] c[ould] return” to work and inquired as to whether plaintiff was “medically cleared to fully perform the essential functions of his duties.” A list of plaintiff’s job duties attached to HHC’s letter specified that plaintiff “spen[t] approximately 75% of his working hours in the field monitoring several construction projects and attend[ed] construction management meetings on site,” and that he “spen[t] approximately 25% of his working hours in the office.”
In March 2006, Dr. Skloot replied to HHC’s inquiry about plaintiffs return date and ability to perform his essential job functions, stating:
“[plaintiff] is ready to return to work immediately (as of the date of this letter). He is medically cleared to work in the field so that he can attend project meetings. I have advised him that it is imperative that he not be exposed to any type of environmental dust, and he has assured me that his field work will not include such exposure.”
Thereafter, plaintiff returned to QHC and performed regular site visits until May 2006. During this post-leave work period, according to plaintiff’s subsequent affidavit in opposition to summary judgment, plaintiff told his supervisor, Vincent James, that he was having difficulty breathing. Plaintiff asked James to provide him with protective respiratory equipment and to reassign him to the central office in Manhattan. Plaintiff also complained to Anita O’Brien, HHC’s director of the QHC facility, that he was having trouble breathing. O’Brien provided plaintiff with a dust mask, but he did not use the mask at times because it impeded his ability to communicate. Plaintiff requested that O’Brien supply him with a respirator, by which he meant a device that was “fit tested by an industrial hygienist” and “specifically designed to filter the particulates [one] [is] exposed to” in “asbestos abatement projects.”
In May 2006, plaintiff wrote to HHC requesting a transfer back to the central office, and he maintained that he was “able to perform any and all functions, which [had been] assigned to [him] prior to [his] relocation to QHC.” Plaintiff attached to his request a letter from another physician, Stephen M. Levin, M.D. Dr. Levin stated, “[i]t is my strong recommendation that [plaintiff] be placed in a work setting free from exposure to airborne irritant or fibrogenic dusts, fumes and gases, if his current lung condition is not to be made worse by such exposure.”
“[plaintiff’s] job responsibilities require that he spend 80% of his working hours in the field and 20% of his working hours in central office. ... It was my understanding that [plaintiff] was cleared by (HR) to return to work at full capacity. Due to the high volume of work at Queens Hospital Center, it is imperative that we have a network manager cover the projects at that facility.”
Plaintiff’s union counsel then wrote to HHC, insisting “that HHC find an appropriate place in the agency for him to work where he is not regularly assigned to construction sites.”
On or about June 5, 2006, plaintiff filed a disability discrimination complaint against HHC with the New York State Division of Human Rights.
“[G]iven the nature of your duties as a Health Facilities Planner, there is no position in your title available in the Corporation that would not, of necessity, involve your working in conditions hazardous to your health. Therefore, we must conclude that at present you are not able to perform the essential functions of your job.”
In an August 2006 letter to HHC, Dr. Skloot wrote that “[plaintiff] w[ould] never be medically cleared to ‘fully perform the essential functions of his duties’ ” because “it [wa]s imperative to his health that he not be further exposed to any type of environmental dust.” Dr. Skloot continued, “[Plaintiff] recently attempted] to return to the field and developed significant worsening of his respiratory status, requiring a course of systemic steroids,” adding, “Therefore, the only work he is cleared to do is office work.” At the end of plaintiffs involuntary medical leave in March 2007, HHC terminated plaintiff.
B
In March 2008, plaintiff commenced this action for damages by filing a complaint in which he alleged that HHC had unlawfully
Supreme Court granted HHC’s motion for summary judgment and dismissed the complaint (
The Appellate Division, with one Justice dissenting in part, affirmed Supreme Court’s order (see Jacobsen v New York City Health & Hosps. Corp.,
In a comprehensive opinion, Justice Manzanet-Daniels dissented in part and voted to modify Supreme Court’s order to reinstate plaintiffs disability discrimination claims (see id. at 433-437 [Manzanet-Daniels, J., dissenting in part]). In the dissent’s view, triable issues of fact existed regarding whether plaintiff would have been able to perform the essential functions of his position if he had been provided the appropriate respiratory equipment and whether HHC had “made a reasonable accommodation for plaintiffs disability” (id. at 435-436). The dissent determined that HHC could have reasonably accommodated plaintiffs disability by providing him with proper respiratory equipment or reassigning him to the central office, where he had previously worked for 27 years while making only limited site visits (see id. at 436). The dissent concluded that the dust mask provided by HHC was not a reasonable accommodation because “a specialized mask or respirator device designed to filter and protect against airborne dust from known toxins or potential carcinogens” was a statutorily reasonable accommodation, whereas “a dust mask, of the type to be found in any hardware store,” did not meet that criterion (id. at 437). The dissent further determined that the record was devoid of evidence that HHC had engaged in any good faith interactive process designed to determine the existence of a reasonable accommodation (id.).
Plaintiff appeals to this Court by permission of the Appellate Division, which certified to us the following question: “Was the
II
A
A party moving for summary judgment must demonstrate that “the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment” in the moving party’s favor (CPLR 3212 [b]). Thus, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp.,
Turning from the summary judgment burden to the substance of the statutes at issue, the State HRL forbids employment discrimination on the basis of an employee’s disability, and the
Under the State HRL, if an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment (see Executive Law § 292 [21]; Romanello,
“Unlike the State HRL, the City HRL’s definition of ‘disability’ does not include ‘reasonable accommodation’ or the ability to perform a job in a reasonable manner,” but rather “defines
Although the State HRL and City HRL maintain separate burdens of proof at trial regarding the existence of a reasonable accommodation, under both statutes an employee’s request for an accommodation is relevant to the determination of whether a reasonable accommodation can be made. In that regard, the State HRL defines a “reasonable accommodation” as an accommodating action that does not unreasonably burden the employer “from which [the] action is requested” (Executive Law § 292 [21-e] [emphasis added]). By defining a “reasonable accommodation” in terms of an employee’s request for accommodation and the employer’s ability to conduct its operations within the limits of the employee’s proposed arrangement, the statute indicates that an employee’s suggestion of a specific accommodation must prompt the employer to consider whether the burden thus imposed upon the employer’s business would be reasonable. In this way, the employer’s response to the employee’s request and any ensuing dialogue about the impact of the proposed accommodation on the employer’s business inform the determination of whether a reasonable accommodation exists.
By encouraging employers to consider the viability of impaired employees’ requested adjustments to their working conditions, the State HRL’s definitions of “disability” and “reasonable accommodation” further the legislative intent behind the statute’s coverage of disabilities that may be reasonably accommodated. When it amended the State HRL in 1979 to enhance protections against disability discrimination, the legislature sought to create an “individualized standard” for determining whether an employee could perform the essential functions of his or her job with a reasonable accommodation (Matter of Miller v Ravitch,
Thus, in amending the State HRL, the legislature evidently concluded that an employer cannot disadvantage a disabled employee based on a generalized sense that disabilities of the kind suffered by the employee can rarely be accommodated and that the employee is unlikely to be able to satisfy his or her employment responsibilities. Given that legislative finding, we are bound to interpret the State HRL’s definitions of “reasonable accommodation” and “disability” to require that, where the employee seeks a specific accommodation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee’s proposal without further inquiry (see Budget Rep on Bills, Bill Jacket, L 1979, ch 594 at 6 [stating that the amendments to the State HRL were designed to protect “individuals who can perform a job, but who may use special equipment or some other special arrangements in performing the job . . . from arbitrary discrimination”] [emphasis added]; Letter from Governor’s Office of Employee Relations, June 22, 1979, id. at 18 [stating that, under the amended State HRL, adverse employment actions against an individual could not be justified based upon a mere relationship between the disability and the employee’s ability to perform certain job duties but rather were warranted only “based upon an insurmountable ‘disability’ which would prevent a particular individual from performing the tasks which are inherently involved in a particular job”] [emphasis added]).
Furthermore, this interpretation of the statute, which makes a dialogue about the reasonableness of the employee’s proposed accommodation relevant to the “reasonable accommodation” analysis, comports with the legislature’s goal of encouraging employers to voluntarily integrate disabled employees into the workplace through fair-minded discussion instead of obstinately refusing any accommodation and forcing employees to pursue
In light of the importance of the employer’s consideration of the employee’s proposed accommodation, the employer normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. And, the employer cannot present such a record if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee’s request. Consequently, to prevail on a summary judgment motion with respect to a State HRL claim, the employer must show that it “engage[d] in a good faith interactive process that assesse[d] the needs of the disabled individual and the reasonableness of the accommodation requested” (Phillips,
Our conclusion that, in all but the most extreme cases, the lack of a good faith interactive process forecloses summary judgment in favor of the employer should not be construed too broadly. At a trial on a State HRL claim, the plaintiff employee still bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position (see Executive Law § 292 [21]; Romanello,
As discussed, the employer’s decision to engage in or forgo an interactive process is but one factor to be considered in deciding whether a reasonable accommodation was available for the employee’s disability at the time the employee sought accommodation. Without having participated in that process in response to the employee’s request, the employer cannot prevent the employee from bringing a State HRL claim to trial on the reasonable accommodation issue, but on the other hand, the employee cannot obtain a favorable jury verdict or summary judgment solely based on the employer’s failure to engage in an interactive process. Likewise, at trial on a City HRL claim, the employer does not automatically fail to establish the affirmative defense premised on the lack of any reasonable accommodation solely because it did not participate in an interactive process, though that failure poses a formidable obstacle to the employer’s attempt to prove that no reasonable accommodation existed for the employee’s disability.
The principles outlined above compel us to conclude that HHC was not entitled to summary judgment with respect to plaintiffs State HRL and City HRL claims.
To begin, the trial court erred in granting summary judgment to HHC on plaintiffs City HRL claim because the evidence warranted a trial on HHC’s ability to have reasonably accommodated plaintiffs impairment by reassigning him to its central office in Manhattan. Although, near the end of plaintiffs first medical leave in December 2005, HHC wrote to plaintiffs doctor claiming that 75% of plaintiffs official job duties consisted of on-site construction supervision and 25% consisted of office work, plaintiffs affidavit in support of his complaint and his deposition testimony indicated that, during the decades in which plaintiff worked at the central office in Manhattan and prior to his transfer to QHC, he did office work 80% of the time and on-site supervision 20% of the time. And in May 2006, plaintiff sent a letter to a senior official at HHC stating that, although the conditions at QHC were hazardous to his health, he was “requesting reasonable accommodation” in the form of a transfer to the central office, where he would be “able to perform any and all functions, which were assigned to [him] prior to [his] relocation to QHC.” Plaintiffs union counsel sent a follow-up letter requesting that plaintiff be transferred to any location within HHC’s overall organization that would allow plaintiff to avoid working at construction sites.
In the face of this evidence that plaintiff had been able to work at the central office for decades doing only limited on-site
In addition, by testifying that he had requested a respirator to enable him to perform site visits upon his return from his first medical leave in early 2006, plaintiff raised a material factual issue as to HHC’s ability to have reasonably accommodated his disability by providing him with a respirator or comparable protective gear. As plaintiff testified, he had repeatedly asked his superiors for a respirator, i.e., a “fit tested” de
Additionally, although plaintiffs State HRL claim may prove unsuccessful at trial because he will be required to show that his disability could have been reasonably accommodated, this claim should have survived summary judgment because, at that pretrial stage, HHC still bore the burden of establishing that, as a matter of law, plaintiff did not have a statutorily covered disability for which a reasonable accommodation had been available. As discussed, HHC failed to carry that burden insofar as plaintiffs testimony and the correspondence, taken in the light most favorable to plaintiff (see Vega,
Moreover, with respect to both claims, HHC failed to show the lack of any material issue of fact regarding its participation in a good faith interactive process. When plaintiff asked for a respirator shortly after his return to work, HHC denied that request without considering it and instead merely provided plaintiff with a dust mask. Around that time, plaintiff and his union counsel repeatedly requested that HHC reassign him to the central office, and HHC belatedly responded by placing plaintiff on involuntary medical leave in June 2006, at which point HHC did not specifically address the viability of the requested transfer to the central office but rather made the conclusory assertion that plaintiff could not work safely in any position at the corporation. Thus, far from showing that, as a matter of law, HHC had participated in a good faith interactive process which revealed that plaintiffs proposed accommodations were unreasonable, the record demonstrates that, given HHC’s limited interactions with plaintiff, a material issue of fact existed as to whether plaintiffs proposed accommodations or any other potential accommodation was reasonable.
Nonetheless, HHC posits that plaintiffs lung disease prevented him from performing the essential field work required by his job, and that HHC carried its burden on summary judgment of demonstrating that no reasonable accommodation for that disability existed. In support of that argument, HHC relies on: (1) Dr. Skloot’s October 2005 letter in support of plaintiffs request for a voluntary medical leave, in which Dr. Skloot stated that plaintiff could not perform the “usual tasks” associated with his job; (2) Dr. Skloot’s December 2005 letter reporting on plaintiffs condition toward the end of his first medical leave, in which Dr. Skloot stated that plaintiff could not visit any construction site; and (3) Dr. Skloot’s August 2006 letter stating that, after plaintiffs return from his first medical leave and his attempt to continue working at the QHC site, plaintiffs condition had deteriorated to the point that he would never be cleared to return to work. In HHC’s view, those letters constituted an admission that plaintiff could not perform the 75% of his duties comprised of on-site visits, which necessarily entailed exposure to environmental dust. However, viewed in the light most favorable to plaintiff, the letters cited by HHC at most reflected plaintiffs inability to perform the essential functions of his position either before he started his first medical leave, during
HHC’s most compelling argument about the letters is that, in light of the pre-leave letters describing plaintiffs severe health problems, Dr. Skloot’s March 2006 letter cautioning that plaintiff had to avoid exposure to environmental dust suggested that plaintiffs condition remained extremely difficult to accommodate notwithstanding his improvement during his leave of absence. However, the March 2006 letter also indicated that plaintiff was ready to return to work and perform field work, and plaintiff insisted that he could perform his essential employment responsibilities at the central office and/or with the aid of a respirator. Therefore, any conflict among Dr. Skloot’s prior accounts of plaintiffs medical condition, the March 2006 letter and plaintiff’s remaining evidence created a factual issue for trial, not grounds for summary judgment (see generally Matter of New York State Dept. of Correctional Servs. v New York State Div. of Human Rights,
We reject HHC’s claim that it was entitled to summary judgment because, after HHC denied his request for an accommodation, plaintiff became totally unable to perform his essential job duties. Under the State HRL and the City HRL, the relevant inquiry is whether the employee was capable of performing the core functions of the employee’s position at the time that the employer refused to accommodate the employee’s disability. Nothing in those statutes relieves the employer of liability due to the employee’s becoming completely disabled long after an accommodation has been sought.
Indeed, an employer’s failure to reasonably accommodate a worker’s disability as soon as the employer learns of that condition is the very societal ill which the relevant anti-discrimination statutes were designed to combat. The statutes recognize the employer’s failure in that regard to be particularly invidious because it forces the worker either to quit his or her job in order
To the extent HHC suggests that the trial court properly granted it summary judgment because HHC gave plaintiff a dust mask at the QHC site, which he did not always wear, we find that contention unavailing. To be sure, plaintiff received a dust mask from a supervisor, and because the dust mask impeded his ability to communicate, especially over the telephone, he sometimes did not wear the mask. However, plaintiff did wear the dust mask at times, and given that plaintiffs lung disease grew worse despite his use of the mask, triable issues of fact arose regarding the effectiveness of the mask as an alternative reasonable accommodation and any other role the mask might have played in the State HRL and City HRL analyses. Thus, despite plaintiff’s failure to fully utilize the limited protection he was given, the dust mask was not necessarily a reasonable alternative to his requested accommodation of a fit-tested respirator, and his failure to use the mask does not indicate that the respirator would have been an unreasonable or ineffective accommodation as a matter of law.
Finally, although plaintiffs disability discrimination causes of action should have survived HHC’s summary judgment motion, we decline to reinstate plaintiffs gross negligence cause of action or to consider his unpreserved retaliation claims.
m
In recognizing that plaintiff presented colorable claims of disability discrimination under the City HRL and the State HRL, we do not intimate that plaintiff has a winning case for purposes of trial. Reasonable minds may differ on the persuasiveness of plaintiffs evidence with respect to the actual amount of time he would have been required to spend visiting construction sites at the central office, his ability to have performed any site visits required of him at that location, a respirator’s ability to have prevented the further exacerbation of his lung ailment, and the extent to which an interactive process would have led to the
In sum, we decide only that the trial court erroneously granted summary judgment to HHC based on plaintiffs having become totally disabled after his accommodation request was denied, and that HHC did not demonstrate its entitlement to judgment as a matter of law regarding the other aspects of plaintiffs disability discrimination claims. Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the first and second causes of action of the complaint, and as so modified, affirmed, and the certified question should not be answered as unnecessary.
Order modified, without costs, by reinstating the first and second causes of action in the complaint and, as so modified, affirmed, and certified question not answered as unnecessary.
Notes
. After the administrative process failed, plaintiff successfully obtained a voluntary dismissal of his administrative complaint to enable him to pursue legal action.
. In Parker v Columbia Pictures Indus. (
. Notably, in seeking a transfer, plaintiff was not improperly attempting to compel HHC to establish “a new light-duty position or a permanent light-duty position” (Matter of Mair-Headley v County of Westchester,
. The Appellate División majority seems to have believed that plaintiff did not oppose summary judgment on the ground that a respirator was a reasonable accommodation (see Jacobsen,