Disability Discrimination Claims, Based on “Invisible” or “Hidden” Disability (Brain Injury), Properly Dismissed

In Stephens v. New York State Division of Human Rights, No. 100699/18, 12163, 2019-5430, 2020 N.Y. Slip Op. 06038, 2020 WL 6163900 (N.Y.A.D. 1 Dept., Oct. 22, 2020), the court, inter alia, upheld the dismissal (by the NYS Division of Human Rights) of the petitioner’s disability discrimination claims.

Here, the NYSDHR issued a determination of “no probable cause” to believe that respondent discriminated or retaliated against the petitioner in violation of the New York State Human Rights Law. The lower court denied a petition to vacate that determination and dismissed the proceeding brought pursuant to CPLR Article 78. The Appellate Division, First Department, affirmed that decision.

The court explained:

DHR’s determination of no probable cause to find that HRA engaged in disability discrimination against petitioner was rationally based in the record and not arbitrary and capricious (see Matter of McFarland v. New York State Div. of Human Rights, 241 A.D.2d 108, 111 [1st Dept 1998] ). Petitioner describes her traumatic brain injury condition as an “invisible” or “hidden” disability, meaning that the “symptoms are invisible” and “not immediately apparent.” This undermines her interactive dialogue contention, and indeed her disability discrimination and reasonable accommodation claims, since it suggests that it would not have been evident to HRA staff interacting with her that she was in fact disabled. It also does not appear that petitioner ever substantiated her disability for the HRA staff she interacted with, as by presentation of a doctor’s note (see Matter of Becerril v. New York City Hous. Auth., 168 AD3d 586, 587 [1st Dept 2019] ). Nor did petitioner ever demonstrate for HRA that her disability reasonably warranted the accommodation she requested, of expediting her grant application (see id.).

Petitioner’s broader disability discrimination claim, namely, her assertion that HRA staff mistreated her and sidetracked her application because of animus against disabled persons, is again undermined by her assertion that her traumatic brain injury is “invisible.” Coupled with petitioner’s own claim that HRA staff mistreated everyone at the job center, DHR rationally determined that petitioner failed to show that she was treated adversely under circumstances warranting an inference of discrimination.

The court also upheld the dismissal of the petitioner’s retaliation claim.

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