In Jordan v. City of New York, 23cv4962 (DLC), 2024 WL 4872186 (S.D.N.Y. November 22, 2024), the court held/confirmed that requesting a “reasonable accommodation” is not “protected activity” in connection with asserting a retaliation claim under the New York State Human Rights Law.
From the decision:
When deciding a question of state law, federal courts look to the state’s decisional law, as well as to its constitution and statutes. Absent a clear ruling from a state’s highest court, a federal court must predict how that court would resolve the uncertainty or ambiguity. In doing so, the federal court is bound to apply the law as interpreted by a state’s intermediate appellate courts unless there is persuasive evidence that the state’s highest court would reach a different conclusion.
It is possible that a recent amendment to the NYSHRL might change how New York courts would interpret the state law. Effective August 12, 2019, the NYSHRL was amended to require courts to construe the statute “liberally for the accomplishment of [its] remedial purposes … regardless of whether federal civil rights laws, including those laws with provisions worded comparably … have been so construed.” See N.Y. Exec. Law § 300. New York courts have not yet analyzed what impact the August 2019 amendment — in isolation or in combination with the November 2019 change to the NYCHRL — has on whether a request for a reasonable accommodation is protected activity under state law.
The plain text of the August 2019 amendment directs courts applying the NYSHRL not to interpret the state law to be in line with its federal counterparts simply because the federal and state statutes contain comparable language. But that sort of leveling down is not at issue here. Here, state courts have interpreted the NYSHRL (and the pre-amendment NYCHRL) to provide less protection than the ADA not based on an interpretation of federal law, but on their own interpretation of state law. While the New York City Council amended the NYCHRL to state that a request for a reasonable accommodation is protected activity, the New York State Legislature did not similarly act.
In short, the August 2019 amendment to the NYSHRL did not change the NYSHRL to mean that a request for a reasonable accommodation is protected activity under the statute. Accordingly, the intermediate state court decisions that predate the August 2019 amendment control absent persuasive evidence that the New York Court of Appeals would reach a different conclusion.
[Citations and internal quotation marks omitted.]
Based on this, the court dismissed plaintiff’s claim of retaliation under the NYSHRL as a matter of law.