Complaint Number EM /31/89-DN DECISION AND ORDER. Complainant Mary J. Fernino ("Complainant") filed a verified

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Damian Hoover
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1 THE CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS x In the Matter of the Complaint of MARY J. FERNINO -against- Complainant, Complaint Number EM /31/89-DN MANUFACTURERS HANOVER TRUST CO. and WILLIAM FISHER, Respondents x DECISION AND ORDER Complainant Mary J. Fernino ("Complainant") filed a verified complaint with the New York City Commission on Human Rights ("Commission") charging Respondents Manufacturers Hanover Trust Co. and William Fisher ("Respondents") with unlawful discriminatory practices in violation of the New York City Administrative Code ("Code"), Title 8, Chapter 1, Section 8-107(1) 1., The Administrative Law Judge issued a Recommended Decision and Order finding that Respondent Manufacturers Hanover Trust Co. ("MHT") violated Code Section 8-107(1) and finding that MHT had constructively discharged complainant. He recommended that Complainant be awarded $9, in compensation for lost earnings in 1989; $10, in compensation for lost earnings in 1990; and $3, in compensation for lost earnings for He further recommended an award of $12,000 as compensation for lost pension benefits; and $30,000 in compensation for mental anguish as well as affirmative relief. The Administrative Law Judge recommended that the complaint against William Fisher be dismissed.

2 We find there is sufficient evidence in the record that MHT discriminated against Complainant by failing reasonably to accommodate her disability, asthma, and by requiring her to work in a room containing an excessive amount of environmental irritants which aggravated this condition. We find that Complainant suffered severe mental anguish as a result of MHT's conduct. MHT, in essence, forced Complainant to abandon her career, which she had worked hard to build, in order to preserve her health, perhaps even her life. This case presents a prime example of the analogy between acts of discrimination and tortuous conduct. In subjecting her to the conditions under which MHT forced her to work, it not only discriminated against her on the basis of her disability, but also committed what can be analogized to a tort upon her with severe physical and psychological consequences. Such conduct justified monetary compensation in the range which a court would award in a common law tort action. Accordingly, the Administrative Law Judge's recommendations of an award of $30,000 for the mental anguish which Complainant suffered as a result of MHT's conduct is justified. As to the appropriate affirmative relief to be ordered, the Law Enforcement Bureau, in its comments dated February 11, 1993 to the Recommended Decision and Order, has requested a number of additions and clarifications to the Administrative Law Judge's recommendations. Many of these have merit. We find other modifications are appropriate as well. The Code contemplates that an employer have a policy, procedures and process for providing reasonable accommodations to employees with disabilities, and contemplates that an employer have a person or persons at the management level responsible for implementing its 1 Respondent Manufacturers Hanover Trust Co. has subsequently merged

3 policy, procedures and process. The Code further contemplates a mechanism designed to assure that every employee knows of the policy, procedures and process, and knows to whom he/she may turn when he/she requires an accommodation. The affirmative relief set out in this Decision and Order is designed to insure that these goals are satisfied. The right to accommodation for a disability is only made real when an employee is notified of that right and told how it might be exercised. The failure to notify employees about the policy and contact person or persons effectively deprives the employee with a disability of the right to accommodation. In keeping with the terms of this decision, the Commission wishes to make clear exactly what is required for any workplace equal employment program to be deemed in minimal compliance with the New York City Human Rights Law on the question of disability. It will be deemed a per se violation of the Human Rights Law if an employer has failed to notify its employees of the company's policy on accommodating persons with disabilities. Similarly, if the employer has failed to designate an individual or individuals responsible for addressing the accommodation concerns and to notify all employees of the identity of the disability accommodation point person, it shall also be deemed per se violation of the City's Human Rights Law. The employer has discretion in determining which person or persons in the organization should play this role. Accordingly, we are reproducing the Order in its entirety with appropriate additions and modifications. with Chemical Bank.

4 CONCLUSION Upon the arguments of the parties, the documents submitted and the proceedings held herein, we adopt the Recommended Decision and Order dated December 31, 1992 as modified by this Decision and Order, and as modified below. ORDER IT IS HEREBY ORDERED THAT: 1. The Bank shall cease and desist from engaging in any discriminatory practice proscribed by Title 8, Chapter 1 of the Administrative Code of the City of New York with respect to discrimination in employment on the basis of disability and in the provision of reasonable accommodations to disabled employees or applicants. 2. The Bank shall adopt and implement a written policy of nondiscrimination ("Policy") which will comply with federal, state and city laws prohibiting disability discrimination. The minimum requirements of this policy to be adopted and promulgated shall be the following: (a) the policy shall include the statement that the Bank will not discriminate against a qualified person with a disability with regard to job application procedures, hiring, promotion, retention, or any terms and conditions of employment; (b) the policy shall define "disability" in accordance with federal, state and city laws prohibiting discrimination based upon disability as any physical, medical, mental or psychological impairment, or a history or record of such impairment; (c) the policy shall define a "qualified person with a disability" as a person with a mental or physical disability who, with reasonable accommodation, if necessary, can perform the essential functions of the I employment position that such person holds or desires;

5 (d) the policy shall list the following as possible examples of reasonable accommodation: the sharing of job responsibilities, job relocation, part-time or modified work schedules, acquisitions or modifications of equipment or devices, the provision of qualified readers or interpreters, the appropriate adjustment or modification of training materials or policies; (e) the policy shall state that the list of possible accommodations is illustrative and is not an indication of whether or not any accommodation is reasonable or should be provided in any specific case; the policy shall further state that the determination of what, if any, accommodation is reasonable must be evaluated on a case by case basis and involve consultation with the employee requesting the accommodation; the policy shall also state that when more than one option exists for providing a reasonable accommodation, the Bank shall provide the option preferred by the employee, unless it can demonstrate that to do so would impose an undue hardship. The policy shall further state that information about an employee's medical condition shall remain confidential, and shall be disclosed only to the extent necessary to those personnel involved in the design and implementation of an accommodation. (f) the policy shall define "reasonable accommodation" in accordance with federal, state and city laws as an accommodation(s) that can be made that shall not cause undue hardship in the conduct of the covered entity's business; (g) the policy shall state that the factors to be considered in determining whether a specific accommodation would impose undue hardship, include, but are not limited to: (1) the nature and cost of the accommodation; (2) the overall financial resources of the facility or 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; (3) the overall financial resources of the Bank; the overall size of the business of the Bank with respect to the number of its employees, the number, type, and location of its facilities; and (4) the type of operation or operations of the Bank, including the composition, structure, and functions of the work force of the Bank, the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the Bank; (h) the policy shall state that the Bank shall not deny employment to a job applicant on the ground that the applicant requires reasonable accommodation;

6 (i) the policy shall list organizations that can be contacted in order to make a complaint of discrimination based upon disability. Such list shall include, but not be limited to the following organizations: the New York City Commission on Human Rights, 40 Rector Street, 9th Floor, New York, New York 10006, (212) ; the Equal Employment Opportunity Commission, 90 Church Street, Room 1501, New York, New York 10007, (212) ; the Office of Federal Contract Compliance, United States Department of Labor, 201 Varick Street, New York, New York 10014, (212) ; the New York State Division of Human Rights, 55 West 125th Street, New York, New York (212) ; the Mayor's Office for People With Disabilities, 52 Chambers Street, Room 206, New York, New York 10007, (212) Within 90 days of the issuance of the Final Decision and Order, the bank shall designate from among its managerial staff one or more persons who are to be responsible for implementing the provisions of this Order. The number of such persons and the division of responsibility among them shall be determined by the Bank in consultation with the Law Enforcement Bureau as provided by this Decision and Order. 4. The Bank shall adopt and implement written procedures governing the employment of people with disabilities ("procedures"). The minimum requirements of the procedures shall be the following: (a) the procedure shall state that, in accordance with federal, state and city laws prohibiting discrimination on the basis of disability, no inquiries shall be made of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability; (b) the procedure shall specifically delineate between legitimate pre-employment inquires, such as an individual's qualifications or ability to perform required job duties, with reasonable accommodation, if necessary, free from illegal pre-employment inquiries regarding the applicant's disability; (c) the procedure shall state that no pre-employment medical examinations shall be require for job applicants; (d) the procedure shall provide examples of possible reasonable accommodations, such as the sharing of job responsibilities, job relocation, part-time or modified work schedules, acquisitions or modifications of equipment or devices, the provision of qualified readers

7 or interpreters, the appropriate adjustment or modification of training materials or policies; (e) the procedure shall state that the list of possible accommodations is illustrative and is not an indication of whether or not any accommodation is reasonable or should be provided in any specific case; the procedure shall further state that the determination of what, if any, accommodation is reasonable must be evaluated on a case by case basis and involve consultation with the employee who is to receive the accommodation; the procedure shall also state that when more than one option exists for providing a reasonable accommodation, the Bank shall provide the option preferred by the employee, unless it can demonstrate that to do so would impose an undue hardship. The procedure shall further state that information about an individual's medical condition shall remain confidential, and shall be disclosed only to the extent necessary to those personnel involved in the design and implementation of an accommodation. 5. The Bank shall develop a written process by which an employee with a disability can request reasonable accommodation("process"). The minimum requirements of this process shall be the following: (a) an employee or applicant (herein "employee") seeking an accommodation shall be advised that he or she may contact the appropriate person responsible for policy implementation or the employee's supervisor and, if the request is made to a supervisor, he or she shall so inform the appropriate person responsible for policy implementation; and the appropriate person responsible for policy implementation shall be involved in the decision to grant or deny the accommodation request; (b) the supervisor and the appropriate person responsible for policy implementation will consider each request for accommodation addressed to him or her; (c) in considering each request for accommodation, the supervisor and the appropriate person responsible for policy implementation shall discuss with the employee his or her needs and shall then take into account the employee's knowledge of his or her disability and his or her unique needs as well as the essential functions of the employee's position;

8 (d) if necessary, the supervisor and the appropriate person responsible for policy implementation shall discuss with the employee's immediate supervisor the essential functions of the employee's position; (e) in considering each request for accommodation, the supervisor and the appropriate person responsible for policy implementation shall consider as possible accommodations such options as the sharing of job responsibilities and job restructuring, job relocation, part-time or modified work schedules, acquisitions or modifications of equipment or devices, the provision of qualified readers or interpreters, the appropriate adjustment or modification of training materials or policies; (f) the process shall state that the list of possible accommodations is illustrative and is not intended to imply that the supervisor and the appropriate person responsible for policy implementation must adopt any of these accommodations; rather the decision of the supervisor and the appropriate person responsible for policy implementation's, as to the extent necessary to those personnel involved in the design and implementation of an accommodation. (g) within ten (10) days of the request for accommodation, the supervisor and the appropriate person responsible for policy implementation shall make a determination regarding whether the request for accommodation is granted or denied; (h) in the event that the supervisor and the appropriate person responsible for policy implementation deny the request for accommodation in whole, or in part, the supervisor and the appropriate person responsible for policy I implementation shall discuss with the employee each reason for the denial; (i) in the event that the supervisor and the appropriate person responsible for policy implementation grant the request for accommodation, in whole, or in part, the supervisor, the appropriate person responsible for policy implementation and the employee shall design a plan with specific dates delineating when the accommodation will be implemented. 6. Within thirty (30) days of the issuance of this Order, the Bank shall serve upon the Bureau a written proposal for the nondiscrimination policy, procedure and process ("proposal") consistent with the requirements set forth above. The Bureau shall

9 have thirty (30) days to review the proposal and to suggest changes in the proposal to the Bank. 7. Within ninety (90) days of the adoption of the nondiscriminatory policy, procedures and process set forth above, the Bank shall distribute the new policy, procedures and process to all current employees. Each new employee should also be given a copy upon commencing employment. 8. Within one (1) year of the Final Order, each subsequently printed employee handbook should contain a copy of the Bank's nondiscriminatory policy. 9. Within (30) days of the Final Order, the Bank shall post in a conspicuous place at each of its offices located in the City of New York, a poster stating that discrimination is prohibited, and setting forth the person to whom complaints of discrimination can be made. poster shall include the following language: "Employment discrimination based on race, creed, color, national origin, age, alienage, citizenship status, handicap/disability, sexual orientation, marital status, gender, and arrest or conviction record is prohibited by the New York City Human Rights Law. Complaints of discrimination may be made to the New York City Commission on Human Rights. The Commission is located at 40 Rector Street, 9th Floor, New York, New York For further information telephone (212) " The poster will be at least eleven (11") inches by fourteen (14") inches in size. 10. Within ninety (90) days of the Final Order, the Bank shall begin to arrange for the training of the person(s) responsible for policy implementation, his or her staff, and other managers and supervisors in the area of discrimination based on disability, and the obligations of employers to provide reasonable accommodation of

10 employees with disabilities. Such training should be part of each manager's continuing training with the Bank! should consist of at least four (4) hours, and may be provided by the Commission or a recommended organization. 11. Respondent MHT pay Complainant $9, plus interest at 9% to run from January 1, 1990 to the date of the final order as compensation for 1989 lost earnings. 12. Respondent MHT pay Complainant $10, plus interest at 9% to run from January 1, 1991 to the date of the final order as compensation for 1990 lost earnings. 13. Respondent MHT pay Complainant $3, plus interest at 9% to run from January 1, 1992 to the date of the final order as compensation for 1991 lost earnings. 14. Respondent MHT pay Complainant $12, plus interest at 9% to run from July 26, 1991 to the date of the final order as compensation for the accrued value of her pension. 15. Respondent MHT pay Complainant $30,000 as compensation for mental anguish. 16. The Complaint against individual Respondent William Fisher is dismissed. Dated: March 31, 1993 SO ORDERED. COMMISSION ON HUMAN RIGHTS Edward Ma, Commissioner Harilyn Rousso, Commissioner G. Jack Spatola, Commissioner

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