NYS Divsion of Human Rights Cannot Investigate Broad Policies Without Providing Notice

Matter of MTA Bus Co. v. NYSDHR, ____A.D.3d ____(3rd Dept. May 16, 2017), is an interesting case to be aware of. While investigating an individual case of employment discrimination, the NYSDHR went on to examine certain employer policies which it found to be discriminatory. The problem is that NYSDHR did not give the employer the opportunity to be heard with respect to those employment policies. As the court stated:

The record demonstrates, and respondent determined, that the complainant, a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder, namely, his reckless driving record, and that petitioner was justified in terminating him based on his conduct in vandalizing three buses in passenger service. Respondent awarded the complainant no damages. However, rather than dismissing the complaint, it proceeded to conclude that "[b]ecause [petitioner] has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [petitioner] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [petitioner's] policy violates the Human Rights Law." In making this determination without notice to petitioner that its policies were going to be reviewed, respondent denied petitioner its right to due process. While, upon its own motion, respondent may investigate and file a complaint alleging discriminatory practices (Executive Law §§ 295[6][b]; 297[1]), it did not do so here. It could not, while investigating the bus operator's complaint, which was filed solely on his behalf, find that he had not been discriminated against "and at the same time, make broad findings and impose broad sanctions pertaining to petitioner['s] over-all operations"