On October 27, 2010, in Hazen v. Hill, Betts & Nash, LLP, Case No. 10114676 (N.Y. State Div. of Human Rights Oct. 27, 2010), the New York State Division of Human Rights (the “Division of Human Rights” or the “Division”), by a Notice and Final Order (the “Order”) amending and adopting the recommendation of an administrative law judge (the “ALJ”), held that the respondent Hill, Betts & Nash, LLP, a 16-attorney law firm located in New York City, was liable to the complainant James M. Hazen, Esq., a former non-equity partner of the law firm, for $598,161 plus interest for firing the complainant because of his mental disability (specifically, bipolar disorder), for refusing reasonably to accommodate the complainant’s mental disability, and for retaliating against the complainant because he opposed such practices. The Division of Human Rights’ award of $598,161 to the complainant consisted of $548,161 for lost wages and $50,000 for mental anguish.
In Hazen, the New York State Division of Human Rights held that the respondent law firm’s above-mentioned actions violated the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 (the “State Human Rights Law”).
The Division of Human Rights’ Hazen Order followed four days of public hearing sessions before the ALJ.
Employers in New York can draw at least two important lessons from the Division of Human Rights’ Hazen Order. The last section of this post explains these two teaching points.
In Hazen, the complainant attorney, who was 61 years old at the time of the hearing, was a contract partner of the respondent law firm and a “brilliant trial lawyer.” The complainant “had been performing capably for approximately 17 years” as an attorney for the firm.
In August 2005, the law firm assigned the complainant attorney to litigate a large case involving potential damages in the hundreds of millions of dollars. The law firm authorized the complainant to rent hotel rooms in connection with the case using a firm credit card, but the firm expected that the complainant would require only a few nights at a hotel.
Instead, from September 2005 through January 2006, the complainant lawyer “charged approximately 50 hotel room rentals, car service, alcohol, adult movies, and phone calls to escort services to his [firm] credit card,” incurring non-business-related charges of at least $21,118. The Hazen Order found that “Complainant made these charges while he was suffering from [the manic phase of] the disability of [bipolar disorder].” The Division of Human Rights credited the complainant’s treating psychiatrist’s testimony that “someone suffering from [bipolar disorder] can be grandiose in thinking, impaired in judgment, impulsive in action, tending to do things in excess, and sexually acting out inappropriately.”
For many years, the law firm had allowed the complainant and other firm attorneys “to put personal charges on [their firm credit] card[s] as long as [they] accounted for their personal usage and paid [the firm] for this usage.”
From September 2005 through January 2006, on those irregular occasions when the complainant attorney was present at the respondent law firm’s offices, he exhibited disruptive behavior, had deportment problems, and made inappropriate noise and remarks. The Hazen Order found that this erratic behavior, too, was caused by the complainant’s bipolar disorder.
In December 2005 , the complainant attorney left a note for Gregory O’Neill (“O’Neill”), one of the respondent law firm’s two equity partners, stating that he (the complainant) had health issues to deal with that were causing ” ‘personality changes,’ ” and that he had to stay home and rest. In January 2006, the complainant sent an e-mail to O’Neill stating that he had been ” ‘on the verge of collapse,’ ” was under stress from work, and was under orders from both his internist and his therapist to ” ‘decompress.’ ” O’Neill never replied to the complainant’s e-mail and did not discuss it with the complainant when O’Neill saw him later that week.
Also in January 2006, the complainant lawyer, through a friend, sent to O’Neill a letter from the complainant’s treating psychiatrist stating that the complainant had experienced a severe mood disorder since not later than November 2005, had responded well to treatment, and should be able to resume his work as a lawyer within a few weeks while continuing to undergo psychiatric care. O’Neill never asked the law firm’s controller for financial operations (the “firm’s controller”) to get any medical information from the complainant’s treating psychiatrist about the psychiatrist’s mental health care of the complainant, never asked the firm’s controller to forward the complainant’s treating psychiatrist’s letter to the firm’s medical consultant, and never asked the controller ” ‘to determine what condition [the complainant] had and what was required under [the firm’s] medical coverage.’ ”
Later in January 2006, Mark Jaffe (“Jaffe”), the respondent law firm’s other equity partner, stated, by e-mail to O’Neill, that “I do not want him [the complainant] back here [at the firm’s offices]; I do not want to see him again; and neither does anyone else.” In a second e-mail to O’Neill of the same date, Jaffe acknowledged that, if the complainant “had medical problems,” a leave of absence would afford the complainant an opportunity to “work them out.” In Jaffe’s opinion, however, if the complainant “has mental problems, etcetera, that’s his to deal with. It’s not our responsibility.”
In February 2006, the respondent law firm terminated the employment of the complainant attorney. The complainant was fired, according to O’Neill, “because he attempted to charge hotel stays, restaurants and limousines to clients.” The complainant denied that he had so attempted.
The complainant retained a lawyer who, in April 2006, sent a letter to the respondent law firm maintaining that the firm had wrongfully terminated the complainant because of his bipolar disorder. Around July 2006, the complainant’s lawyer met with the law firm’s counsel to discuss the complainant’s accusations.
In August 2006 — six months after the respondent law firm fired the complainant, but only four months after the complainant’s lawyer wrote to the firm alleging that it unlawfully fired the complainant, and only about one month after the complainant’s lawyer met with the firm’s counsel to discuss the complainant’s allegations — the law firm filed, with New York’s First Judicial Department’s Departmental Disciplinary Committee (the “DDC”), a disciplinary complaint against the complainant alleging that he had tried to assign personal expenses to the firm’s clients. Before filing this disciplinary complaint against the complainant, the law firm met with ethics counsel.
The New York State Division Of Human Rights Determines That The Law Firm Unlawfully Terminated And Retaliated Against Its Former Partner
The Hazen Order “d[id] not credit the testimony of Jaffe and O’Neil,” the respondent law firm’s two equity partners, “that the reason for the termination of Complainant’s employment was his attempt to bill clients for his personal expenses.” The Division of Human Rights determined that this reason proffered by the law firm “was a pretext for discrimination” against the complainant because of his mental disability; and that the firm “was on notice of Complainant’s mental health problems and terminated his employment in violation of the [New York State] Human Rights Law.”
In holding that the respondent law firm fired the complainant attorney because of his bipolar disorder, the Hazen Order found damning Jaffe’s e-mails stating that there were people frequenting the firm’s offices who were “potential sources of business”; that the complainant’s presence at the office would “risk bringing all his crap into that atmosphere”; and that the complainant’s presence was “a risk that the firm couldn’t tolerate.”
The Hazen Order next held that the respondent law firm, in violation of the New York State Human Rights Law, “refused to provide a reasonable accommodation for” the complainant attorney’s mental disability, in that the firm failed to consider the complainant’s request for a reasonable amount of leave from work during which he might recover. The Division of Human Rights found that “the proof establishes that [the law firm] did not take meaningful action with regard to the information and documentation it received” concerning the complainant’s disability.
Further, the Hazen Order held that the respondent law firm, in violation of the State Human Rights Law, retaliated against the complainant lawyer for “making [the firm] aware of his opposition to what he considered an unlawful discriminatory termination of his employment.” This retaliation occurred when, “shortly after” the complainant’s attorney protested to the firm that its firing of the complainant was wrongful, the firm filed with the DDC a disciplinary complaint against the complainant “that could end his career as an attorney.”
The Division of Human Rights “d[id] not credit” Jaffe’s testimony that the reasons the law firm delayed filing a disciplinary complaint until shortly after the complainant’s attorney protested that the firm’s firing of the complainant was discriminatory were “busy work schedules, family health problems, the unpleasantness of the task, and the desire to confer with an ethics counsel.” Rather, the Division found that the firm’s motivations for filing the disciplinary complaint against the complainant “were retaliatory in nature.”
Lessons For Employers In New York
The New York State Division of Human Rights’ Hazen Order teaches at least two important lessons for employers in New York.
The first lesson to be drawn from Hazen concerns an employer’s duty, under the New York State Human Rights Law, reasonably to accommodate a worker’s disability. Specifically, employers should begin the interactive process of determining whether an accommodation is required once employees provide sufficient information to let the employer know that they are experiencing difficulty performing their jobs because of a physical or mental impairment which may constitute a disability under the State Human Rights Law. This process involves, among other actions, exchanging information with the disabled person about his or her disability and work restrictions.
An employer which is on notice of a worker’s possible disability may not avoid its obligation reasonably to accommodate that disability by plunging its head in the sand and remaining willfully blind to the worker’s disability and work limitations. This see no evil, hear no evil, speak no evil tactic is that which the Hill Betts law firm utilized in an unsuccessful effort to avoid the need to reasonably accommodate James Hazen’s bipolar disorder. As the Hazen Order observed, Hill Betts equity partner Gregory O’Neill, among other nonfeasance, “never asked [the law firm’s controller] to get any medical information from [the complainant attorney’s treating psychiatrist] concerning complainant’s psychiatric care and never asked her to forward [that treating psychiatrist’s January 2006] letter . . . to [the firm’s] medical consultant.”
The second lesson which employers in New York may derive from Hazen concerns an employer’s termination of professional employees (such as lawyers, physicians, and accountants) or of employees whose avocations are subject to licensing requirements (for example, pharmacists and physical therapists). When an employer fires, for misconduct, a professional employee or an employee who must be licensed, and where the employer believes that the employee’s misconduct further warrants professional discipline or suspension of the employee’s license, the employer should file any disciplinary complaint against the employee immediately after firing him or her.
If the employer does not promptly seek professional discipline against, or suspension of the license of, a terminated employee, that employee may file or threaten to file a lawsuit for discriminatory discharge before the employer takes such action. In turn, once a professional employee has brought a lawsuit against the employer for alleged wrongful termination, a court may well view any subsequent disciplinary complaint brought by the employer against the professional as constituting retaliation violative of the State Human Rights Law.
If your company needs a lawyer to defend it in a wrongful termination lawsuit and your company is located in the New York City area, call Attorney David S. Rich at (212) 209-3972.