The New York State Division of Human Rights [DHR] adopted the recommended decision and order of the Administrative Law Judge holding that the petitioner in this action, the New York State Unified Court System, Office of Court Administration [OCA], had discriminated against the complainant based on his hearing disability and directed OCA to cease and desist from subjecting individuals to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids, pay a civil fine and penalty of $30,000, and pay the complainant $5,000 in compensatory damages, The Appellate Division unanimously confirmed DHR's ruling.
The court said that DHR's finding of discrimination was supported by substantial evidence in that:
1. Complainant, a per diem court interpreter for OCA in its courts and in other courts, established a prima facie case that OCA discriminated against him on account of his disability of some hearing loss in his right ear;
2. Complainant "sufficiently demonstrated that upon the provision of reasonable accommodation," namely, a hearing aid,* he can perform in a reasonable manner the essential functions of a court officer-trainee.
3. Complainant had passed the written test for the court officer-trainee position and was conditionally appointed.
4. Although the job duties are different, Complainant "adequately performed the functions of court interpreter without a hearing aid and without complaints from those who used his services."
5. Complainant was not obligated to be evaluated for and purchase a hearing aid, and to retake the audiometric test, at his expense, to further make his prima facie case after OCA made clear it still would deem him unqualified and would reject such test results.
The Appellate Division opined that permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argued, impose undue hardship on OCA by posing any "direct threat," i.e. "a significant risk of substantial harm to the ... safety of the employee or others," noting that "OCA [relies] only to the physical demands of the job and the speculative risk that a hearing aid could become dislodged in a scuffle or fail to operate in an emergency."
Further, said the court, "OCA's argument is undermined by its own policy permitting court officer-trainee candidates to meet its vision standard with or without corrective lenses or glasses, which could be lost or become dislodged in a scuffle."
An individual may be denied employment because of a disability only if that condition will prevent him from performing in a reasonable manner the activities involved in the job or occupation sought, based on an individualized assessment of the specific individual. OCA failed to provide any legitimate non-discriminatory reason for its decision.
No sufficiently individualized assessment occurred here, nor did OCA's formula take into account the ability of someone with asymmetrical hearing loss to perform the essential functions of a court officer-trainee. While OCA may have a preference for those with a minimal amount of hearing acuity might be a bona fide occupational qualification, the court opined that its preference for hearing acuity without the use of a hearing aid is not.
Citing Matter of County of Erie v New York State Div. of Human Rights, 121 AD3d 1564, the Appellate Division noted that "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty ... constitutes an abuse of discretion as a matter of law .... [A] penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness." Here, the civil penalty was neither an abuse of discretion nor was it unreasonable.
Given OCA's blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Complainant who had an asymmetric hearing loss, the Appellate Division concluded that the civil penalty of $30,000 was correctly assessed as Executive Law §297[c] provides that a civil penalty below $50,000 may be assessed if an entity is found to have committed an "unlawful discriminatory act".
* OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position.
The decision is posted on the Internet at: