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Does a request for a reasonable accommodation constitute a protected activity?

Writer's picture: Joseph DierJoseph Dier

Very rarely does federal law provide greater protections for employees than the NYS Human Rights Law (HRL).  One such area, however, is the issue of whether requesting a reasonable accommodation for a disability constitutes a protected activity sufficient to establish a retaliation claim.


As a brief refresher, to establish a retaliation claim, an employee must show that they engaged in protected activity, which is defined in the HRL as opposing “any practices forbidden” by the HRL, or filing a complaint, testifying, or assisting “in any proceeding under [the HRL].”  Protected activity most often takes the form of an employee complaining—formally or informally—about alleged discrimination.  The employee must then establish that the employer knew of the protected activity, and that they suffered an adverse action causally connected to the protected activity.


Courts have long held that, under federal law, requesting an accommodation qualifies as protected activity.  New York courts, however, hold that the opposite is true under the HRL.  The First Department, one of New York’s four intermediate appeals courts, has consistently held this way.  But the NYS Division of Human Rights (DHR) has decided to throw a wrench in this.


The problem begins with a decision where a different appeals court, the Third Department, punted on the protected activity issue and dismissed a retaliation claim for other reasons.  This either means they were not convinced with the First Department’s reasoning, or that they do agree, but simply did not need to address it in that case.


Despite not deciding the issue, a string of DHR decisions beginning in 2022 (see here, here, here, and here) relied on the Third Department’s decision in concluding that requesting an accommodation does, in fact, constitute protected activity.  This seems to conflict with the general principle that administrative agencies must follow decisions of “higher” tribunals (i.e. the First Department), but the opportunity to make this argument may not arise for several years and only after an adverse ruling at a hearing.


Therefore, moving forward, it seems like employers can assume that DHR will find that accommodation requests are protected activity, and thus there can be no retaliation for such a request (this of course should be irrelevant because employers should not retaliate for any reason, regardless of potential liability).  Employers should prepare to defend retaliation claims on other grounds, including that they did not know of the protected activity, the employee did not suffer an adverse employment action, or there is no connection between the protected activity and the adverse action.


Dier Law can help employers avoid this potential trap and ensure that DHR does not get a chance to issue another erroneous decision on this issue.


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