Not to be outdone by the New York State legislature's flurry of eleventh-hour lawmaking (which we previously reported on here and here), the New York City Council recently passed an employment bill pending since April of 2018. The new law, Int. No. 0799-2018, amends and broadens workplace anti-retaliation protections under § 8-107(7)(v) of the New York City Human Rights Law ("NYCHRL") by including that it is illegal to retaliate against an employee or applicant who requests a reasonable accommodation under the law.
Prior to this amendment, some courts interpreting the NYCHRL held that requesting a reasonable accommodation is not a protected activity under the existing text of § 8-107(7). Int. No. 0799-2018 addresses that gap in coverage. As amended, § 8-107(7) provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has ... (v) requested a reasonable accommodation under this chapter."
The new law would make it illegal to retaliate against an employee or applicant for requesting an accommodation in connection with a disability or a medical condition, a pregnancy, events related to stalking or sex offenses, status as a domestic violence victim, and/or membership in another protected class. As a result, New York City employees and applicants will be protected not only in the course of opposing an illegal act under the NYCHRL, but also in proactively seeking benefits available under the law.
A June 18, 2018 Committee Report notes that the amended § 8-107(7) harmonizes New York City law with recent EEOC guidance. The EEOC has, since 2016, considered requesting a reasonable accommodation to be a protected activity under federal law. However, the amended NYCHRL is broader than the federal protections given the wide range of reasonable accommodations available to employees and applicants under the NYCHRL. The June 18, 2018 Committee Report also criticizes the courts' previous interpretations of § 8-107(7) as "highly restrictive," and therefore signals an intent for the latest amendment to be flexibly applied.
Int. No. 0799-2018 is now awaiting Mayor De Blasio's signature. The amendment to § 8-107(7) will become effective 120 days after the bill is signed into law. As always, New York City employers should continue to monitor for changes to the NYCHRL and take precautions when presented with employees' and/or applicants' requests for reasonable accommodations.
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