THE CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS - - - - - - - - - - - - - - - - - - - - x On the Complaint of : : JAY LEVENTHAL, : Complainant, : Complaint No. : 10174356-E - against- : LOUIS HARRIS AND ASSOCIATES, INC. : AND JOHN HOLDEN, : RECOMMENDED : DECISION AND ORDER Respondents. : - - - - - - - - - - - - - - - - - - - - x BEFORE: Rosemarie Maldonado Acting Chief Administrative Law Judge APPEARANCES: For the Commission Rolando T. Acosta, Esq. Deputy Commissioner for Law Enforcement New York, N.Y. 10006 By: Nancy B. Alisberg, Esq. For Respondents Thomas G. Dignan, Esq. Nixon, Hargrave, Devans & Doyle 990 Stewart Avenue Garden City, N.Y. 11530

THE CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS - - - - - - - - - - - - - - - - - - - - x On the Complaint of : : JAY LEVENTHAL, : : Complainant, : Complaint No. : 10174356-E - against- : : LOUIS HARRIS AND ASSOCIATES, INC. : AND JOHN HOLDEN, : RECOMMENDED : DECISION AND ORDER Respondents. : - - - - - - - - - - - - - - - - - - - - x A. COMPLAINT AND HEARING

On October 17, 1984, Jay Leventhal filed a verified

complaint with the New York City Commission on Human Rights

("Commission") charging Respondents Louis Harris and Associates

("Louis Harris") and John Holden with unlawful discriminatory

practices in violation of Sections 8-107(1)(a) and 8-108 of the

Administrative Code of the City of New York ( "Code "). More

specifically, Complainant alleges that Respondents unlawfully

refused to hire him as a telephone interviewer because hi is

blind. Respondents deny these allegations.

A public hearing was held before Acting Chief Administrative

Law Judge Rosemarie Maldonado on March 12, 13, 14, 15, and 18

1991. After evaluating the testimony and documentary evidence

offered at the hearing, and assessing the credibility of the

witnesses, this tribunal finds that Respondent Louis Harris

engaged in unlawful employment discrimination in violation of

B. FINDINGS OF FACT

a. Background

1. Complainant Jay Leventhal has been totally blind since

the age of four and has been a braille reader since kindergarten

(T. 22).1 He graduated from Syracuse University in 1980 with a

major in psychology and a concentration in political science (T.

24).

2. After Complainant graduated from college, he worked

part-time as a research assistant for the American Foundation for

the Blind (T. 45). His responsibilities included coding responses

to questionnaires administered as part of a research project (T.

45).

3. From 1981 to 1984, Leventhal worked full-time as a

project consultant for the American Foundation for the Blind

(T.51-52). More specifically, he worked on two related studies "

National Study of Radio Reading and Information Service

Listening" ( "Radio Reader Study") and the " Evaluation of the

Panasonic, Model RE6750, Prototype FM SCA Receiver by Radio

Reading and Information Service Personnel and Listeners" Reading

and Information Service Personnel and Listeners" ("Panasonic

Study") (T. 54, C.Ex. 2, 3).

4. Both studies analyzed the results of surveys conducted

pursuant to telephone interviews. The Radio Reader Study

consisted of approximately 506 telephone interviews and the

Panasonic Study of approximately 100 (T. 63, 57). Complainant

played a key role in conducting the telephone interviews for both

studies (T. 57, 63-64, 644, 648-649).

1 Numbers in parenthesis preceded by "T." refer to the pages in the hearing transcript. Those preceded by "C.Ex." refer to

5. Each telephone interview consisted of forty to fifty

questions and took about twenty minutes to complete (T. 63-64,

666). In order to conduct the interviews, Leventhal's

questionnaires were brailled (T. 58, 649-650). During the

interview, he read directly from the brailled questionnaire. He

recorded the responses to multiple choice questions by making a

pencil mark through the appropriate braille symbol. The pencil

mark would enable a sighted data entry person to identify the

response (T. 58, 172-173, 649-650). Leventhal recorded the

responses to open-ended questions in braille and then typed them

(T. 649-650).

6. In 1984, Complainant worked part-time at the Jewish

Braille Institute. Although he was employed, he was looking for

another job "that would be more of a career move" (T. 71)

7. Respondent Louis Harris is a private research firm

located in New York City which conducts public opinion polls,

market research studies, executive studies and market monitor

studies (C.Ex. 17). Respondent John Holden was Louis Harris'

personnel director from-1-984-to 1985 (T. 699-700).

b. Complainant’s Interview at Louis Harris

8. In August 1984, Louis Harris placed a classified

advertisement in the New York Times seeking telephone.

complainant's exhibits. Those preceded by "R. EX" refer to ???????????????

??????????????? election. (T. 70, 187-188)

9. Holden interviewed the interested candidates (T. 710).

Although experience was not necessary for the advertised

position, candidates were asked to role play from a

questionnaire. Holden testified that he used the role playing to

gauge a candidate's aptitude for the job (T 711, 761)

10. Complainant's friend, Cheryl Brock, told him about the

advertisement because she knew of his interest in politics and

his experience in telephone interviewing (T. 43, 70, 194). They

both applied for the position (T. 71, 188).

11. Brock was interviewed by Holden. He reviewed her

application and asked her to role play from a questionnaire (T.

189-190). Brock was hired as an interviewer at $5.00 an hour (T

192).

12. Complainant called Louis Harris to inquire about the

position. On or about Thursday , August 20, 1984, Complainant was

interviewed by Holden (T. 73, 127, 707). An application was

filled for Complainant and he gave Holden his resume (T.130, 713,

767-769). Complainant also gave Holden a copy of the Radio

Reading Report and informed him that he had conducted telephone

interviews in his prior job (T. 75, 130, 174).

13. Based on-his prior experience at the American Foundation

for the Blind, Leventhal described how he could be accommodated

to do the Louis Harris job. First, Leventhal stated that he had

access to volunteer readers who could assist him in ?????????

Complainant explained that the questionnaires would have to be?(

brailled. Leventhal offered to braille the questionnaire on his

Perkins Brailler2(T. 140). This manual transcription, however

,could take many hours to complete (T. 720-721 ) As an

alternative, Leventhal suggested that Louis Harris have the

2 A Perkins Brailler is a manual brailling device.

questionnaires brailled by a high speed brailling system at

Baruch College or at the American Foundation for the Blind (T.80,

140, 180, 716). Holden also told Leventhal about their

computer-assisted telephone interviewing system (T. 714-715,

726).

14. Leventhal suggested that he could work on a computer

with a Versabraille3 (T. 77-81).

15. Complainant suggested the' the responses of close-ended

multiple choice questions be recorded in pencil on brailled on

thermoform4 response sheets. By making the pencil marks in

clearly marked boxes, or through braille symbols, a sighted

person could read the responses (T. 58, 172-173, 1154-1157).

Complaint could record the responses to open-ended questions in

braille and type them when the interview was completed (T. 58).

This system had been successful in his prior job as a telephone

interviewer (T. 58, 172-173, 649-650).

Thermoform paper is sensitive to pressure and heat is used for

printing braille.

3 The Versabraille is a portable braille word processor/computer terminal with a twenty-character braille display. It uses standard cassette tapes for information storage (T-. 66, C.Ex. 1Q, p. 9) 4 Thermoform paper is sensitive pressure and heat and is used for printing braille.

16. Holden was disappointed with the lead time needed to

braille a questionnaire on the Perkins Brailler (T. 720, 744,

776). The evening shift was only five hours long and Holden was

concerned that Complainant would spend his entire shift

transcribing the questionnaire into braille instead or conducting

interviews (T. 720-723).

17. Holden also explained to Leventhal that Louis Harris had

a strict confidentiality policy that prohibited anyone from

removing documents from the premises. He told Leventhal that

Louis Harris might make an exception in this case, but he could

not make that decision (T. 716-717).

18. During the interview, Holden spoke to Jeffrey Lorber,

his supervisor. He told Lorber that he would "like to try

something new" (T. 717-718, 805). Lorber, however, could not give

Holden permission to allow the questionnaires to be brailled

off-site (T. 718). In addition, Lorber expressed concern about

the editing process and wanted to know whether Leventhal could

write (T. 718). Holden told Lorber that he would investigate

further for another "angle" (T. 719).

19. Holden told Leventhal that he was not authorized to

release documents for off-site brailling (T. 136-139, 719, 794).

They then discussed editing and coding (T. 722, 725). Complainant

offered to do the editing of the questionnaires himself. Holden

explained that an interviewer could not edit his own work because

it could create bias (T. 725). They also discussed that

possibility of bringing in a brailling system to print the

questionnaires (T. 729-730).

20. Given the policy issues involved, Holden could not make

the decision to hire Complainant on his own (T. 82, 794) He asked

Complainant to "give [him] some time!” and to call him the

following Monday (T. 83, 733).

21. The interview ended without Complainant being given the

opportunity to role play from a questionnaire (T. 766).

Therefore, Holden ended the interview without being able to

assess Leventhal's aptitude for the job (T. 761-762, 766, 771).

22. After the interview, Holden approached Ralph Borrelli,

the coordinator for the computer-assisted study, and asked him to

review Complainant's resume (T. 735-736). Borrelli's opinion was

that the responses to open-ended questions were "problematic"

because they were handwritten (T. 737-738). Sidney Johnson, a

computer consultant who also participated in the discussion,

stated that recording the responses to open-ended questions was a

" problem" for all interviewers (T. 739).

23. Holden then met with Alice Stacpolele, the vice

president for operations, about hiring Leventhal (T. 741-742).

Holden discussed the information he had obtained from Leventhal

during his interview and suggested the acquisition of a high

speed brailling system as the appropriate accommodation for

Complainant’s disability (T. 742-745). Stacpole decided that the

computer-assisted telephone interviewing system should be "up and

running" before- bringing in adaptive equipment (T. 746,

800-801). She told Holden that he could not hire Leventhal (T.

801)

24. Complainant called Holden on Monday and was informed

that Louis Harris would not hire him (T. 84) Holden expressed

concern about Leventhal's ability to do the job (T. 84, 165).

Leventhal reiterated that he could do the job asked if he could

speak to someone else (T. 84). Holden explained that the decision

was final (T. 84-85).

25. Complainant felt "awful" after the telephone

conversation with Holden (T. 85, 152-153, 192). He was not sure

what kind of job he would find if he "was not able to work at

something he was so clearly qualified for" (T. 85, 86, 195-196).

Complainant felt even worse because his friend, Cheryl Brock, was

working at Louis Harris as a telephone interviewer without having

any prior experience (T. 85).

26. Complainant continued to search for employment. He was

registered with employment agencies for people with disabilities

and sent out at least a dozen resumes (T. 88, 156). He was hired

as a part-time employee at the American Foundation for the blind

in 1986. In 1987 he became a full-time staff member (T. 89).

27. Complainant filed a complaint with the Commission on

October 17, 1984. In response to the complaint, William Truffa, a

vice president and controller at Louis Harris, wrote:

All our interviewing functions require the use of eyesight. The nature of our business does not afford the opportunity to use persons who are visually handicapped. Consequently, we have not, and cannot use visually impaired personnel in these positions. (C.Ex. 16).

c. Description of telephone interview Procedures

28. In 1984, Louis Harris employed several interviewers (T.

826-827). The number of hours each interviewer worked fluctuated

with the number of surveys conducted (T. 759-760, 821).

29. At that time there were three interviewing shifts. The

daytime shift focused on surveys of business executives in their

workplace (T. 816). These surveys took an average of three to six

weeks to complete (T. 919). The evening and weekend shifts

focused on surveys of the general public in their homes (T. 816-

817). The average evening or weekend survey could be completed

within a weekend or within two to three weeks (T. 918-919). Some

studies, however, could take months to complete (T. 899). On

average, interviewers worked on three or four different surveys

per shift (T. 1020).

30. Newly-hired interviewers were given a training manual

and were required to attend a general training session (T. 817).

In addition, when a new survey was introduced, the interviewers

were required to attend an orientation

session (C. EX. 31).

31. The questionnaires developed by Louis Harris for the

telephone interviews varied both in the number of questions they

contained and the amount of time required to conduct the

interview. A questionnaire could have as few as 20 questions and

take only 5 minutes to administer or have 80 questions and take

half an hour (T. 916-917).

32. In 1984, the responses to most surveys were recorded on

paper (T. 982-983). One daytime study and one evening study were

being done on the computer-assisted telephone interviewing system

(T. 870-871). At that time, Louis Harris had plans to expand its

use of computerized interviewing (T. 715).

33. At the beginning of each shift, interviewers were given

the phone numbers of the targeted survey population on sample

cards (T. 690-691, 834, C.Ex. 17). Although there were

variations, sample cards usually contained ten or more phone

numbers and included space for the interviewer to record the

results of each telephone contact (C.Ex. 17).

34. Interviewers averaged approximately 30 dialings per hour

and used between 30 and 50 sample cards per shift (T. 834- 835,

1102-1105). The number of cards used by an interviewer during one

shift could rise to 150, depending on the study and the number of

phone numbers on each card (T. 834-835).

35. Supervisors reviewed the sample cards during the shift

to determine whether call backs needed to be made and to

determine which interviewer should attempt a call back (T. 996,

1025).

36. Interviewers were also expected to record the results of

telephone contacts on a call record sheet. Supervisors used the

sheet to assess each interviewer's productivity (T. 843-846)..

d. Essential Functions of Telephone Interviewer Job

37. As a survey research firm. Louis Harris goal is to

hire telephone interviewers who can conduct quality interviews

pursuant to narrow guidelines which minimize the risk of bias (T.

452-454, 703).

38. Recording accurate information on the results of

telephone contacts is an essential job function. It is important

to record the results of telephone contacts in a legible form

because other interviewers frequently work from these notes (T.

307-308, 315, 692-693, 840-842, 1021-1025, C.Ex. 17, R.Ex. 16).

39. Reading the questionnaire verbatim and conducting the

interview with the same pace, rhythm and pausing is the key

underlying element to the job of telephone interviewing (T. 988,

1027). Uniformity in delivery assures that the survey's

objectivity is not jeopardized T. 988).

40. Recording the answers to closed-ended questions

accurately is an essential job function. A closed-ended question

is one that offers a limited choice or predetermined answers

(C.Ex. 17). Louis Harris' questionnaires are very sophisticated

and use a wide range or question formats (T. 848-863, 1007, C.Ex.

17). In most cases, the responses to closed-ended questions are

recorded by placing an "X" next to the appropriate response

(T.849, C.Ex. 17).

41. Recording the answers to open-ended questions verbatim

is an essential job function. An open-ended question calls for

the person being interviewed to elaborate on a subject (C.Ex.

17). The interviewer must write down everything said by the

person being interviewed exactly as they say it, word for word

(C.E.. 17). Interviewees cannot paraphrase or abbreviate a

response and must write legibly (T. 694, 866-867, 1015-1016, C.

Ex.17)

42. Communicating the complete and accurate responses to

questionnaire, and submitting it to an editor in a timely

fashion, is an essential job function. After the interviewer

completes a survey, they are required to review their work (T.

316). Questionnaires are submitted to editors every ten to

fifteen minutes and they are reviewed for legibility,

completeness and accuracy (T. 831-832, 995-996). If the

questionnaire is incomplete or ambivalent, the interviewer may be

required to call back the respondent (T. 831-832). The editing

function must be completed within a fifteen minute time frame in

order to increase the likelihood that the respondent will

cooperate during the call back (T. 997).

e. Possible Accommodations

43. Leventhal could have been reasonably accommodated to

perform the essential functions or a telephone interviewer at

Louis Harris.

44. The first accommodation would be to allow Leventhal to

work with a reader. Leventhal informed Holden during his

interview that he had access to volunteer readers who could

assist him by reading the phone numbers and annotations on the

sample cards (T. 76, 80, 182, 329-330). In the alternative, Louis

Harris could have assigned another employee to double as a reader

when necessary (T. 331-333).

45. The second accommodation would be to allow Leventhal to

type the results of his telephone contacts on paper instead of

handwriting them on sample cards (T 331-332). In the alternative,

or as a supplement for reviewing the accuracy of the information,

the blind interviewer could record the annotations on a tape

recorder (T. 334-335).

46. The third accommodation would be to print questionnaires

and response sheets in braille. There were various brailling

options available in 1984. The first option would be to type

questionnaires on an IBM typewriter with an alphabet keyboard and

braille output (T. 325). With the use of this device,

questionnaires could be brailled by a sighted employee. The

second option would be to use a Perkins Brailler. The text of the

questionnaire would be read to the blind employee who would then

braille it manually (T. 140, 324-325). A third option would be to

use a high speed brailler at Baruch College or the American

Foundation for the Blind (T. 80, 140, 180, 716). A fourth option

would be for Louis Harris to acquire a high speed brailling

system and print questionnaires at their office (T. 742-745). The

call record sheet could have also been brailled (T. 335 ) .

47. Once the questionnaire is brailled, no accommodation

would be necessary for Leventhal to administer the survey. A

blind interviewer can read from a brailled questionnaire in the

same manner as a sighted interviewer reads from a print

questionnaire (T. 1075-1076). Questions involving skip patterns

could be marked with a braille labeler (T. 342- 343)

48. The fourth accommodation would be to allow Leventhal to

record the responses to closed-ended questions on brailled answer

sheets made of thermoform paper (T. 327). The blind interviewer

could record the responses to closed-ended questions by making a

pencil mark over the appropriate braille symbol (T. 58, 336). The

pencil mark is visible to a sighted person (T. 1157). In

addition, a blind person can tactually review answers for

accuracy (T. 1154-1155).

49. A fifth accommodation would be to allow Leventhal to

first record the responses to open-ended questions in braille and

then type them for submission to the editor (T. 338).

Transcribing a response from braille to print could take a few

minutes (T. 341). In the alternative, a blind interviewer could

type the response directly onto a typewriter and review it with a

supervisor or a Kurzweil5 machine (T. 338-339).

50. If Leventhal were to use the computer- assisted

telephone interviewing system, he could be accommodated by the

acquisition of a Versabraille (T. 78). The Versabraille's display

consists of raised dots representing twenty braille characters at

one time. A blind interviewer can read the questions and answers

by touching the display.

51. When necessary, Louis Harris could assign Leventhal to

studies of longer duration or limit him to one survey per shift

(T. 802, 920, 1086).

52. These accommodations would allow Leventhal to perform

the essential job functions required of the Louis Harris

telephone interviewer position without diminishing the quality of

its surveys or significantly altering established productivity

standards.

C. ANALYSIS OF EVIDENCE AND CONCLUSIONS OF LAW

Jay Leventhal alleges that Louis Harris violated Code

Sections 8-107(1)(a) and 8-108 by refusing to hire him as a

telephone interviewer because he is blind. This tribunal agrees.

Complainant Jay Leventhal is a bright and talented man

with a college degree. At the time he applied for a telephone

interviewer position at Louis Harris, he had extensive experience

conducting telephone surveys and had experience doing political

5 The Kurzweil is an intelligent scanning system that reads printed material aloud. This device can also be used to convert

polling. In fact, Jay Leventhal was probably overqualified for

this position. And yet, despite his qualifications, Louis Harris

could not see beyond the fact that Jay Leventhal was a blind man.

As articulated by Respondent's vice president and controller

William Truffa:

All our interviewing functions require the use of eyesight. The nature of our business does not afford the opportunity to use persons who are visually handicapped. Consequently, we have not, and cannot use visually impaired personnel in these positions.(C.Ex. 16). As in this case, it is too easy for a sighted person making

an employment decision to conclude that a job "require[s] the use

of eyesight". If this were the standard, blind people could be

virtually excluded from ail employment opportunities Code

Sections 8-107(1)(a) and 8-108 protect qualified handicapped job

applicants from such simplistic conclusions and establish a

demanding legal standard requiring employers to look beyond

obvious obstacles when evaluating the employment potential of all

individuals with disabilities. In considering Leventhal's

application, Louis Harris failed to comply with this standard.

I.

In order to establish a claim pursuant to Code Sections

8-107(1)(a)6 and 8-1087, Complainant must prove by a preponderance

print directly into braille when interfaced with a Versabraille or a printer (T. 67, C. Ex. 10, p.17). 6 Code Section 8-107(t)(a) provides: "It shall be an unlawful discriminatory practice:(a)For an employer, because of the age, race, creed, color, national origin or sex of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual...." 7 Code Section 8-108 provides: "The provisions heretofore set forth in section 8-107 as unlawful discriminatory practices shall be construed to include

of the evidence that he is an otherwise qualified handicapped

person whom Respondents refused to hire because of his handicap.

Code Section 8-102(16)(e) defines an "otherwise qualified person"

as a "handicapped person who with reasonable accommodation can

satisfy the essential requisites of the job." The burden,

however, is on the Respondent to show that Complainant could not

be accommodated or that his suggested accommodations would impose

an undue hardship. Doe v. Pleasure Chest, Ltd., NYCCHR Compl. No.

GA00167020889 (July 15, 1990); Nemhauser v. NMU Pension and

Welfare Plan, NYCCHR Compl. No. EM00377 (July 27, 1988); Doe v.

New York University, 666 F. 761, 776-777 (2d Cir. 1981); Prewitt

v. United States Postal Service, 662 F. 2d 292

(5th Cir. 1981)

Respondents do not dispute that Complainant is a handicapped

person, that he applied for and was denied a position at Louis

Harris and that he was qualified for the job except for his

handicap. See Respondents' Post-Hearing Memorandum of Law dated

April 24, 1991 ("Respondents' Memorandum") p. 16. In addition,

the essential functions of the job are not in dispute. See

Respondents' Memorandum, p. 4. The only issues which must be

resolved are whether Respondents gave Leventhal's application

adequate consideration and whether Complainant could have

performed the essential functions of the job with reasonable

accommodation.

an otherwise qualified person who is physically or mentally

a. Process for determining whether a reasonable

accommodation can be made.

Accommodations, such as those required in this case, are not

always readily identifiable . In fact, Complainant's expert

witness, Corinne Rirshner, Ph.D., testified that when she first

interviewed Leventhal for a data coding position, she committed

the "common error" of a sighted person and concluded that she

"couldn't use [him]" (T. 262-263). It was only after further

conversations with Leventhal, and consultation with a blind

colleague, that she became aware of workable options (T.263).

As illustrated by Dr. Kershner's personal experience the

process of identifying an accommodation is not always is not

always simple. For this reason, the Code imposes a duty on

employers to make( reasonable, good faith, efforts to determine

appropriate accommodations. The Code mandates that employers make

informed employment decisions about people with disabilities and

prohibits them from denying opportunities to the disabled based

on stereotypes and misinformation. Therefore, the Code requires

that employers probe beyond obvious obstacles by:

1. Analyzing the job involved and identifying its purpose and essential functions; 2. Consulting with the disabled applicant to ascertain the precise job-related limitations posed by their disability; 3. Identifying, in consultation with the disabled individual, potential accommodations and assessing their effectiveness;

handicapped."

4. Seeking technical assistance from rehabilitation agencies, disability constituent organizations and other organizations and institutions with expertise; and, 5. Selecting and implementing the appropriate accommodation, keeping in mind the applicant's preference.

This problem-solving approach was recently endorsed by the Equal

Employment Opportunity Commission in its Guide to the Proposed

Americans with Disabilities Act Employment Regulations ("ADA

Guidelines"), section 1630.9.

The Code must require this demanding legal standard to

assure that its provisions are implemented in a meaningful way.

The emphasis of the required approach is on collaborative work

and an interactive process between the employer and the disabled

applicant. The burden, however, is on the employer to make

reasonable efforts to gather information and identify workable

solutions with the disabled job applicant.

The Fifth Circuit's analysis of the employer s burden to

prove the inability to accommodate is instructive here. As stated

by the Court in Prewitt, 662 F.2d at 308:

The employer has greater knowledge of the essentials of the job than does the handicapped applicant. The employer can look to its own experience, or if that is not helpful, to that of other employers who have provided jobs to individuals with handicaps similar to those of the applicant in question. Furthermore, the employer may be able to obtain advice concerning possible accommodations from private and government sources. Unless the burden is placed on the employer, they are given

license to "sit back" and wait for the applicant to make

recommendations without disclosing information that is critical

to determining the appropriate accommodation. Such a result would

defeat the Code's mandate.

b. Louis Harris did not gather sufficient information to

identify reasonable accommodations for Mr. Leventhal.

Louis Harris failed to make reasonable, good faith, efforts to

identify appropriate accommodations for Leventhal. Its vice

president for operations, Alice Stacpole, cut short the required

analysis and ordered that Leventhal not be hired before she had

sufficient information to make an informed decision (T 801). She

did not encourage Holden to continue his pursuit of options or to

consult experts in the field of employment accommodation for the

blind. Instead, she made a hasty and unsubstantiated decision

about Complainant's abilities and did not pursue possible options

to accommodate his disability.

The failure to make an informed decision is

particularly striking in this case. Leventhal was an experienced

telephone interviewer. During his brief interview at Louis

Harris, he recommended accommodations that had worked in his

prior job. He even offered to provide volunteer- readers and to

have the questionnaires brailled off-site (T. 76, 80, 140,

172173, 180, 182). These suggestions were rejected without much

thought. In addition, Louis Harris failed to gather additional

information to determine whether other workable options could be

implemented (T. 802).

Louis Harris is an international leader in the area of

research. It is a sophisticated research organization with the

capability to gather information on accommodations for the

disabled. In 1984, New York City had several organizations that

could have provided Louis Harris with technical assistance to

evaluate possible accommodation for this job (T. 1168). In fact,

two excellent sources of information, the American Foundation for

the Blind and the Jewish Braille Institute, were listed on

Leventhal's resume (C.Ex. 1). Louis Harris did not even call

Leventhal's former supervisor, John DeWitt, to find out how the

applicant had performed as a telephone interviewer in 1983.

Respondent's carelessness in evaluating Leventhal's application

was an egregious violation of the Code given the status of this

employer and the available resources.

Therefore, this tribunal finds that Respondent Louis

Harris discriminated against Leventhal in violation of Code

Sections 8-107(1)(a) and 8-108 by rejecting Leventhal 's

application without adequate)) evaluating the accommodations

Complainant proposed or making reasonable, good faith, efforts to

identify alternatives.

c. The complaint against John Holden is dismissed.

This tribunal finds that Respondent John Holden made

reasonable, good faith efforts to accommodate Leventhal and

dismisses the complaint against him.

This tribunal was impressed by Holden's honest efforts to

work out solutions that would enable Leventhal to work as a

telephone interviewer. During Leventhal's interview, Holden

listened to Complainant's suggestions. When the confidentiality

issue came up with respect to the off- site brailling, he spoke

to his supervisor to obtain authorization to "try something new"

(T. 717-718, 805). When the authorization was denied, he did not

stop there. He asked Leventhal to "give [him] some time" and to

call back in a few says (T. 83, 733). In the interim, Holden met

with two computer experts and the vice president of operations

(T. 735-739, 741- 746, 801). He also advocated for the purchase

of a high speed brailling system as an accommodation (T.

742-745).

Although Holden usually had authority to hire telephone

interviewers, in this particular case the vice president of

operations directed him not to hire Complainant (T. 801). Holden

should not be penalized for carrying out a personnel decision

made by a superior.

This holding is consistent with the standard articulated by

the Commission in Nemhauser v. NMU Pension and Welfare Plan,

supra, and by the Court of Appeals in Patrowich v. Chemical Bank,

63, N.Y.2d 541, 483 N.Y.S. 2d 659, 473 N.E.2d 11 (1984). Under

this standard, an employee may be found liable only where he or

she has an ownership interest in their employer or where they

have the power to do make personnel decisions. This tribunal

finds that John Holden did not have the power to override Ms.

Stacpole's decision.

In Nemhauser, the Commission stated that the "purpose of

employee liability ... is to ensure enforcement of the Human

Rights Law by deterring individuals, as well as organizations,

from unlawful discriminatory behavior". The Commission cannot

accomplish this goal by finding Holden individually liable for

Louis Harris decision. Holden did not make discrimination

determination that Complainant was unsuitable for employment. On

the contrary, he attempted to persuade others to make reasonable

accommodations. To impose individual liability in this case would

only be an injustice.

d. Reasonable accommodations.

Having determined that Louis Harris did not make a

reasonable effort to evaluate the proposed accommodations or to

identify alternatives, this tribunal turns to the question of

whether appropriate accommodations existed in 1984.

Determine whether an accommodation can be made for a disabled

person is based on the applicant' s abilities, the essential

functions of the job, the impact of an accommodation on business

operations and the employer's financial limitations See Tartaglia

v. Jack LaLanne Fitness Centers Inc., NYCCHR Compl. No.

04153182-PA (June 12, 1986); Matter of Human Rights Commission,

70 N.Y.2d 100, 510 N.E.2d 799, 517 N.Y.S.2d 715 (1987); Miller v.

Ravitch, 60 N.Y.2d 527, 458 N.E.2d 1235, 470 N.Y.S.2d 558 (1983).

What is deemed to be a reasonable accommodation will vary from

case to case. See New York City Comm'n on Human Rights v. United

Veterans Mutual Housing No. 2 Corp., NYCCHR Compl. No. EM00936

(Aug. 14, 1990).

An employer is not required to make an accommodation

that would substantially modify the requirements of a job or

fundamentally alter business operations. An employer, however,

may be required to make reasonable accommodations for disabled

applicants by eliminating barriers, purchasing adaptive

equipment, providing readers or modifying policies so that the

applicant can perform essential job functions. See Nelson v.

Thornburgh, 567 F. Supp. 369 (E. D. Pa. 1983), aff'd. 732 F. 2d

146 (3d Cir. 1984 ), cert. denied, 469 U.S. 1188 (1985).

At the hearing, Leventhal, as well as expert witnesses

Corinne Kirshner, Ph.D.8 and Judith Gerber, presented ample

evidence that a blind interviewer could have been accommodated by

Louis Harris in 1984. In fact, as an experienced telephone

interviewer, Leventhal

had already developed a strategy to eliminate barriers in this

profession. His recommendations were straightforward: braille and

duplicate the questionnaires and

answer sheets; permit him to use a typewriter to record open

ended responses and notations on attempted calls; and, permit him

to use a reader. 9

8 Respondent challenged Dr. Kirshner's qualifications as an expert because she did not visit Louis Harris to observe telephone interviewers at work. Respondent argues that without observing Louis Harris' operations, Dr. Kirshner could not adequately evaluate the essential functions of the job. The tribunal rejects this argument. Although Dr. Kirshner did not observe telephone interviewers at work (T. 390-391), she relied on Louis Harris instruction manuals and other documents to form the basis of her opinion (T. 382, C.Ex. 16, 17, 18, 19 20). These documents provided Dr. Kirshner with sufficient information to analyze the essential functions of the job. In any event, as stated in Respondents' Memorandum at p. 4, the essential functions of the job are not in dispute. This tribunal would also like to point out that Respondent expert, Ted Small, formed an opinion that a blind interviewer could not be accommodated for the job without ever meeting Mr. Leventnal or evaluating his individual qualifications (T. 1046-1047). If Respondent's argument that an expert must conduct personal evaluations were to prevail, it would require the disqualification of Mr. Small as well as Dr. Kirshner. 9 See sections c. and d. of the Findings of Fact for a more detailed description of the essential functions of the job and of each accommodation.

Having made these recommendations, Respondent must prove its

inability to accommodate Leventhal or prove that Complainant's

proposals would impose an undue hardship.10 See Prewitt, 662 F.2d

at 308. This tribunal concludes that Respondent failed to meet

this burden and finds that Leventhal could have been accommodated

to perform the essential functions of a Louis Harris telephone

interviewer in 1984. This holding is consistent with the mandate

of Code Sections 8-107(1)(a) and 8-108.

Nelson v. Thornburgh, supra, is instructive on this point.

The plaintiffs in Nelson were blind income maintenance workers

for the Pennsylvania Department of Public Welfare whose jobs

involved interviewing prospective welfare clients, reviewing

documentation supporting their applications, preparing reports

and completing forms. About half of their time was spent

interviewing applicants while the other half was spent completing

forms and reviewing the agency's manual to make eligibility

determinations. To enable them to perform the latter portion of

their functions, the plaintiffs, at their own expense, employed

part-time readers. The plaintiffs asked the agency to pay for the

cost of part-time readers, but the agency declined to do so.

The court discussed the types of accommodations available to

the agency in 1983 and held that it had failed to fulfill its

10 This position was recently endorsed by the ADA Guidelines, Section 1630.2 (p), which provides: The fact that a particular accommodation poses an undue hardship, however, only means that the employer is not required to provide that accommodation. If there is another accommodation that will not create an undue

duty pursuant to the Rehabilitation Act of 1973 by failing to

offer reasonable accommodations. The accommodations noted by the

court included brailling forms, brailling the thousand-page

income maintenance manual, purchasing a Versabraille and printer,

linking the Versabraille to the agency's computer system, hiring

a reader, or assigning a clerical worker in the office to double

as a reader. The court found that a combination of these

accommodations could be implemented to enable the blind income

maintenance workers to conduct client interviews and to make

eligibility determinations.

The similarities between Nelson and the case at hand are

striking. First, both cases involve the accommodation of

blind-interviewers in the early part of the 1980s. Second,

Leventhal and the Nelson plaintiffs required similar

accommodations to perform their job. Third, the same technology

and accommodations were available to the parties at that time.

Given these similarities, this tribunal finds that Louis Harris

could have implemented the combination of accommodations

discussed in Nelson to enable Leventhal to perform his telephone

interviewing job. This tribunal is not unmindful of factual

differences. For example, productivity standards are different

and the questionnaires used by Louis Harris have a shorter life

span. These differences, however, are simply a matter or degree

and are not dispositive of the issues at hand.

e. Louis Harris failed to grove that Leventhal could not be accommodated or that the proposed accommodations were an undue hardship. hardship the employer would be required to provide alternative accommodations.

Louis Harris does not contend that Leventhal's proposed

accommodations were too costly. In fact, Leventhal testified that

the New York State Commission for the Blind would have purchased

the necessary equipment to enable him to work (T. 1234). Instead,

Louis Harris argues, although unsuccessfully, that accommodating

Leventhal would be an undue hardship by diminishing the quality

of surveys and decreasing efficiency standards. This tribunal

rejects Respondent's argument.

Government acknowledges that accommodations for the disabled

result in costs to employers and has consciously decided to

impose that cost unless it results in an undue hardship.

Respondent, however, has confused undue hardship

with expediency and convenience. Although the required

accommodations may not be easy to implement, they are certainly

reasonable and should have been adopted.

Respondent's analysis of the essential job functions and

accommodations is inherently flawed because it is narrowly

focused on mechanics. The arguments made in Respondent's

Memorandum and the testimony of its expert witness, Ted Small, do

not analyze the overall goals of procedures to determine whether

Leventhal could be accommodated to achieve those goals. Instead,

they analyzed the tasks and mechanisms and determined that

Leventhal could not be accommodated to perform the specific

tasks.

Louis Harris' narrow-minded approach is unpersuasive. As Dr.

Kirshner testified, there is a danger in looking too

narrowly at tasks (T. 321). The Law Enforcement Bureau

illustrated this point with reference to the sample cards:

[Is] the task to put pencil marks on a piece of paper,

a task that would be difficult for a blind person, or

[is] the task ... to convey information? ... The objective is not to have a nicely filled out card. The card is merely the housekeeping method selected by [Louis] Harris to record the information [T. 334]. See Law Enforcement Bureau's Post-Hearing Brief, dated April 24, 1991, p.7-9.2

Based on this narrow interpretation, Respondent argues

that accommodating Leventhal would require lowering it's

productivity standards.11 As discussed below, Leventhal will be

able to meet productivity standards for each study he works on

Louis Harris provides him with the appropriate accommodation on

and not burdensome alternatives.

Louis Harris also implies that any deviation to its

procedures may result in unreliable data. This tribunal is

persuaded that the quality of surveys is not threatened by

accommodating Leventhal. What is critical is the aptitude and

intelligence of the interviewer and that they understand the need

to avoid bias.

f. Louis Harris could have brailled the questionnaires

at their offices.

11 Respondent cites to Dexler v. Tisch, 660 F. Supp. 1418 (D.Conn. 1987) and Bruegging v. Burke, 696 F.Supp. 674 (D.D.C. 1987) in support of their argument. How an accommodation impacts on a business is a question of fact that is decided on a case by case basis. The facts of those cases are not analogous to those at issue here and are not controlling. Dexler dealt with the accommodations necessary for a dwarf to work at a post office and perform the function of transporting mail from one high location

The most critical accommodation for Leventhal was to have

the questionnaires and answer sheets brailled and duplicated. As

discussed above, there were at least four brailling alternatives

available to Louis Harris in 1984 including the acquisition of a

high speed brailling system, the use of a special IBM typewriter

with braille output, the use of high speed braillers at the

American Foundation for the Blind and the Jewish Braille

Institute and the use of a Perkins Brailler (T. 140,

324-325,742-745).12

The most promising accommodation seems to be the acquisition

of a high speed brailling system. Judith Gerber. Complainant's

expert on adaptive equipment for the blind, testified that the

Versabraille was compatible with the Louis Harris computer system

in 1984 (T. 533-538). In conjunction with a scanner or a

Kurzweil, and braille printer, this mechanism had the capability

of transcribing from print to braille and vice versa (T. 67,

C.Ex. 10, p. 17). See Nelson, 567 F. Supp. at 572574.

Respondent failed to present credible evidence that in 1984

Louis Harris could not have brailled the questionnaires on-site.

Respondent's expert, Ted Small, failed to shed any light on this

important question by limiting his testimony to the amount of

time it would take to manually brailled a questionnaire on a

to Bruegging dealt with an employee with cerebral palsy who was passed over for a promotion by a superior evaluation. 12 Although talking computers were available in 1984, this tribunal believes that they would not be an appropriate accommodation for reading the questionnaire because it could interfere with the uniform pacing of questions (T. 1074-1075).

Perkins Brailler (T. 1033-1035, C. Ex. 31).13 For example,

Respondent's expert failed to address why Louis Harris could not

follow John Holden's recommendation that a high speed brailling

system be brought to the office (T. 742-745). Instead Respondent

focused on the difficulties of off-site brailling14 and manual

brailling. Respondent argued that:

[B]ecause Harris guarantees strict confidentiality of its

surveys prior to giving them to the client, Leventhal could not

take a questionnaire off the premises to have it brailled.

Moreover to braille it on the premises by use of a Perkins

Brailler (as suggested by Leventhal), could take, depending on

the length of the questionnaire, anywhere from several hours to

two days. Since Leventhal would be transcribing for most, if not

all, of a shift, he would not be making the requisite number of

13 This tribunal was especially disappointed with Small's narrow focus. During his testimony he described accommodations he had worked out with other employers that demonstrated the creativity needed in this field. For example, he testified that he placed a visually impaired person as a security guard by changing a company's method surveillance from cameras to a microphone and audio system (T. 939). Small's analysis of the Louis Harris' job did not demonstrate this same type of creative thinking. 14 Furthermore, the tribunal is not convinced that Louis Harris could not braille questionnaire off-site. Although Respondent presented testimony that there was a blanket policy prohibiting materials from being taken off-premises (T. 716, 718, 818), the Louis Harris and Associates Inc. Introduction to PM Manual implies that exceptions were made. On page 4, the PM Manual states that: "All surveys and materials are the property of Louis Harris and Associates and must remain on the premises unless authorized to the contrary by a full-time staff member" [emphasis added] (C.Ex. 20). If exceptions were made to the policy, one would have certainly been warranted to accommodate Mr. Leventhal.

telephone calls and would not meet the required production rate

set for the particular job.15 Respondents' Memorandum, p.11.

Under Respondent's restrictive scenario, it would have been

virtually impossible for Complainant to perform the functions of

the job at the required rate of productivity. However,

Respondent's focus on the more burdensome brailling techniques

fails to paint a complete picture. Louis Harris ignored other

options at its own peril because it had the burden to prove the

inability to accommodate. See Mantolete v. Bolger 767 F.2d 1416

(9th Clr. 1985). Respondent' s failure to address the more

reasonable options leads this tribunal to believe that the use of

a high speed brailling system, or the acquisition on of an IBM

typewriter with braille output, would result in faster brailling

and would enable Leventhal to perform the job without

compromising the required production rate. Because cost was not

an issue, the acquisition of this adaptive equipment would not

have been an undue hardship on Louis Harris.16

g. Accommodating workload.

15Respondent's concern that brailling the questionnaires would interfere with Mr. Leventhal's productivity is overstated. Respondent failed to consider the relatively minor accommodation of giving Mr. Leventhal the opportunity to braille the questionnaire before his shift. Although Mr. Holden testified that questionnaires were "sometimes" given to interviewers on short notice (T. 155-156), this exception should not have been an obstacle to Mr. Leventhal's employment. 16 Louis Harris argues that in any event, it would be impossible to proofread the brailled questionnaires for accuracy. This task, however, is not an essential function of the telephone interviewer position and therefore, this burden should not be placed on Complaint. A possible solution would be to have this task shared by Complaint and the person whose job it was to proofread all questionnaires.

This tribunal recognizes that the life span of certain

questionnaires may be as little as a day and that in specific

instances there may not be sufficient time to braille

questionnaires. Even Dr. Kirshner testified that it may not be

"worthwhile" for Leventhal to work on studies of such short

duration (T. 451-452).

There was testimony, however, that in 1984, Louis

Harris was conducting evening surveys that took up to one month

to complete (T. 802, 899, 1086). When necessary, Louis Harris

could have accommodated Leventhal by assigning him to surveys of

longer duration.17 In the alternative, Louis Harris could have

made an effort to schedule Leventhal to one survey per shift .18

The high speed brailling system would make this accommodation

necessary only on rare occasions.

h. Louis Harris could have made the computer assisted

telephone interviewing system available to Mr.

Leventhal as an accommodation.

As a partial accommodation, Louis Harris could have made

computer-assisted telephone interviewing available to Leventhal.

17 Louis Harris argues that in August 1984 they were hiring interviewers to conduct one short-term study (T. 709). This contention is not credible. First, the New York Times advertisement for the job did not specify that it was a short-term position (T. 220, 759). Second, Mr. Holden testified that he did not expect to let people go after the study was completed. More studies would come along -- particularly since it was a presidential election year (T. 759-760). Third, Mr. Holden also testified that interviewers did not work exclusively on quick turnaround studies (T. 801). 18 Although this may not be possible on certain occasions, Katherine Binns, a Louis Harris supervisor, testified that they could schedule an interview to work on only one interview per shift ( T. 920).

Louis Harris began to use this system in 1984. With this system,

the interviewer reads questions off a computer monitor and

records responses to closed-ended questions directly onto the

computer (T. 870-871). The computer system was being used for at

least one evening study in 1984 (T. 871, 898).

This advanced technology offered promising opportunities for

the use of adaptive equipment for the blind. Judith Gerber

credibly testified that a Versabraille could have been use with

the Louis Harris computer system (T. 533-538)19. In reaching this

conclusion, she relied on her own expertise, as well as

information obtained from Respondent, Respondent's technical

director, Sidney Johnson, and the manufacturer of the

Versabraille (T. 525-526, 540, 562, C.Ex. 24). Although Ms.

Stacpole acknowledged these possibilities in her conversation

with John Holden (T. 746, 801), she failed to offer computer

assisted telephone interviewing as an option.

i. The editing function and the recording of

responses could have been performed by Mr.

Leventhal with reasonable accommodation.

Mr. Small testified that even if brailling the

questionnaires was not an obstacle, a blind interviewer could not

19 This tribunal could not credit Mr. Small's testimony that the Versabraille was not compatible with the Louis Harris system in 1984 (T. 1065). Mr. Small was not qualified as an expert on adaptive equipment for the blind and this tribunal found his testimony to be, at best, tentative (T. 974, 1052-1064, 1066-1069). On the other hand, Ms. Gerber demonstrated her expertise on adaptive equipment for the blind, wrote a reference book on adaptive equipment and substantiated her responses(T. 488, 525-527, 533-538, 562, C. Ex. 10).

be accommodated because he or she could not submit questionnaires

for editing within 15 minutes of completion (T. 1103). According

to Respondent, Leventhal's only option was to record answers to

the entire questionnaire in braille and then transcribe into

print (T. 1038-1040, C.Ex. 31, Respondents' Memorandum, p. 12

13). Mr. Small concluded that

because no mechanism could translate the responses to a 30 page

questionnaire from braille to print within 15 minutes, Leventhal

could not perform this job (T. 1040).

These contentions are another example of Respondent's

narrow focus on mechanics. Specifically, Respondent contends

that "responses must be placed in exact spots on [the]

questionnaire and handwriting must be legible" (C.Ex. 31).

Alternatives on how to achieve the objective, however, were never

discussed. In fact, Respondent ignored Complainant's

recommendations aimed at eliminating the intermediate step of

transcribing responses.

Leventhal had already devised a mechanism to make his

responses legible to sighted editors in his prior job. Dr.

Kirshner, Leventhal and Mr. DeWitt, Complainant's prior

supervisor, testified that Leventhal could record the responses

to closed-ended questions by making a pencil mark through the

braille symbol representing the enumerated response (T. 58,

172173, 336, 649-650). A sighted editor or data entry person

could read the marks because the meaning is readily apparent

their placement (T. 58, 172-173, 336, 649-650). For example, the

choices to a closed-ended question would be brailled in the same

order that it appeared on the print questionnaire to serve as a

reference (T. 1157, C.Ex. 32, p. 6).

This system worked for Leventhal in his prior telephone

interviewing job and there is no evidence that it would not work

here. Under this scenario, Complainant could review his work for

accuracy and submit the completed questionnaire within the

required time frame (T. 339-341, 1154-1155).

Although Respondent argues that recording the responses

to open-ended questions would have been impossible , this

tribunal agrees with Dr. Kirshner that the provision of an

ordinary typewriter would have been a reasonable accommodation

(T. 388-339, 338-339, 1158, C.Ex. 32, p. 6).

This tribunal recognizes Louis Harris' -need to review responses

within 15 minutes. However, the tribunal is convinced that

Complainant could record the response to

an open-ended question in braille, review the answer for accuracy

and then type it out for submission to the editor within the

required time (T. 341). As stated by Dr. Kirshner, most

questionnaires have very few open-ended questions and the answers

are typically brief (T. 1158, C.Ex. 32, p. 2).

This tribunal is not persuaded by Mr. Small's conclusion

that a typewriter should be rejected as an accommodation because

of the "great possibility of errors creeping in" (T. 1112).

Responsibility for proofreading the typed responses could have

been shared between Complainant and the editor or supervisor.

This would not be burdensome since supervisors pick up

questionnaires at each interviewer's station and read the

responses for accuracy (T. 781, 823, 995-996). In the

alternative, a Kurzweil reading machine could be used (T.

338-339).

j. Leventhal could have used sample cards with

reasonable accommodation.

Respondent argues that one of the most difficult functions

to accommodate is the use of sample cards (T. 1030- 1032). This

difficulty was summarized by Respondent as follows;

Small noted that because all of the notations [on the sample card] were in handwriting, and because in 1984 there was no equipment that could accurately scar handwriting and provide output in braille or voice synthesis, Leventhal would not be able to use the cards without having to have someone read them to him so that he could braille the information. Moreover, if he were to have numerous cards transcribed into braille, and then would make his notations in braille, it was not: possible that he could have the information on the cards timely transcribed back into print so that the supervisors and other interviewers could make immediate use of them. Respondents' Memorandum p. 10-11.

In sum, Mr. Small concluded that Leventhal "could not

use work done by others" and "others could not use his work"

(T.1030-1031). Mr. Small rejected the use of a reader because

"they would have to be available most of the shift" (T.

1083-1084,1106-1107, C.Ex. 31).

This tribunal finds that it would have been relatively

easy to accommodate Leventhal so that he could use the sample

cards. Leventhal offered to provide volunteer readers (T. 76,

80, 182). All that Respondent had to do was approve the use of a

volunteer. Respondent's arguments that the would have to

be present the entire shift and that the reader would be

performing an essential job function are unpersuasive. With the

use of a volunteer, there is no doubt that Leventhal could use

the sample cards to call the targeted population. Louis Harris

failed to give Leventhal the opportunity to provide the

accommodation. This lack of flexibility is unacceptable. The

proposed ADA Guidelines, Section 1630.2(p), would also require

employers to give disabled people an opportunity to provide their

own accommodation.

In the alternative, or as a substitute to a volunteer

reader, Respondent could have assigned another employee to

double as a reader (T. 331-333). See Nelson, 567 F. Supp 369.

Leventhal could have also been accommodated by allowing him to

type the results of his telephone contacts on paper instead of

handwriting them on sample cards (T. 266, 331-332).

Respondent cites to an illustrative point in the ADA

Guidelines, Section 1630.1(o), to support its argument that

providing a reader would be a undue hardship. In that Section,

the ADA Guidelines use the example of a security guard position

which "requires the individual who holds the job to inspect

identification cards [emphasis added]." The ADA Guidelines .

conclude that:

An employer would not have to provide an individual who is blind with an assistant to look at the identification cards for the legally blind employee. In this situation the assistant would be performing the job for the individual with a disability rather than assisting the individual to perform the job.

Contrary to Respondent's assertion, this example is not

analogous to the case at hand. First, the security guard's

essential function is to ensure that only personnel with proper

identification enter a building. There is, however, a significant

distinction between reading phone numbers and inspecting

identification cards. Although Louis Harris interviewers need to

obtain the information contained on sample cards, their job is

not to examine the cards. The goal in the Louis Harris job is to

use the information written on the sample cards, not scrutinize

them for possible fraud and security risks.

II

Section 8-109(2)(c) of the Code empowers this

Commission to fashion both legal and equitable remedies for a

prevailing Complainant. See Miller v. Ben Benson’s Steakhouse,

Rec. Dec. and Order NYCCHR Compl. No. GA-00024030897 (May

31,1989) modified (Nov. 20, 1989); see gen. Batavia Lodge v.

State Div. of Human Rights, 35 N.Y.2d 143, 359 N.Y.S.2d 25

(1974).Compensatory relief in an employment discrimination case

may include lost income, provided there has been a reasonable

effort to mitigate damages. Kramer v. World Zionist Organization

American Section, Decision and Order NYCCHR Compl. No. 11061-EP

(May 5, 1986); see also Ford Motor Co. v. EEOC, 45 U.S. 219,

1982).

In 1984 Complainant was working three days a week at

the Jewish Braille Institute (T. 72). He was working there "to

pay the rent'' until he found something that was "more of a

career position" (T. 72). After he was informed that Louis Harris

would not hire him, he continued to search for employment. He was

registered with employment agencies for people with disabilities

and sent out at least a dozen resumes (T. 88, 119, 156). He also

had at least two interviews (T. 158). He was hired as a part-time

employee at the American Foundation for the Blind in the Spring

of 1986 (T. 89, 156). Accordingly, this tribunal finds that

Complainant made substantial efforts to find other suitable

employment and is entitled to back pay.

Complainant's back pay award of $6,840 is calculated as

follows. The Louis Harris job paid $5 an hour and required an 18

hour minimum work week from each employee (T. 192,

202-203).Assuming that Leventhal worked the minimum work week, he

would have earned $360 a month. Leventhal did not find another

part-time job until the Spring of 1986 -- 19 months after the

Louis Harris rejection.

Under the Code, pre-judgment interest may be awarded to

successful Complainants in discrimination actions to make them

"whole." Miller (May 31, 1989); Kramer at 51, citing State

Division of Human Rights v. Mead, 47 A.D.2d 187, 366 N.Y.S.2d 23

(1st Dep't 1975). Accordingly, Complainant is also entitled to a

pre-judgment interest increase on her back pay award, calculated

at the rate of 9 percent per annum beginning on January 23, 1986

and continuing through the date of this final decision. New York

Civ. Prac. Law and Rules Section 5004 (McKinney 1986).

In cases where mental anguish has been sufficiently

demonstrated by credible evidence, it is the practice of this

Commission to order payment of an appropriate monetary award as

compensation. Wolf v. Barton, NYCCHR Compl. No. 049486 (Dec.

21,1987), aff'd sub. nom, Barton v. N.Y.C. Comm'n on Human

Rights, 140 Misc. 2d 554, 531 N.Y.S.2d 979, modified 141 A.D.2d

258 (1st Dep't 1989); Cruz v. Zwar NYCCHR Compl. No. 153884,

(Mar. 31,1987), aff'd 9/15/88 (S.Ct., Queens Co.).

The standard of proof required to demonstrate mental anguish

in any statutory discrimination case is less stringent than that

required in common law actions. Damages may be awarded on a

sufficient showing of the existence of such injury. The evidence

presented must be sufficient to support a determination that "a

reasonable person of average sensibilities could fairly be

expected to suffer mental anguish from the incident." Batavia

Lodge v. State Division of Human Rights, 43 A.D.2d 807, 810, 350

N.Y.S.2d 273, 278 (4th Dep't 1973) [dissenting opinion adopted by

the Court of Appeals in reversing at 35 N.Y.2d 143 (1974)].

Accordingly, credible testimony by Complainant concerning the

mental anguish experienced can be sufficient to sustain an award

for mental anguish. Matter of Bayport-Blue Point School District

v. State Division of Human Rights, 95 A.D.2d 776, 463 N.Y.S.2d

244 (2d Dep't 1983).

The record established that Complainant suffered severe

mental anguish as a result of Respondents' conduct. Complainant

felt "awful" after the telephone conversation with Mr. Holden (T.

85, 152-153, 192). He was not sure what kind of job he would find

if he "was not able to work at something he was so clearly

qualified for" (T. 85-86, 195-196). Complainant felt even worse

because his friend, Ms. Brock, was working at Louis Harris as a

telephone interviewer without having any prior experience (T.

85). In essence, the Louis Harris rejection made Complainant

loose faith in his ability to get his career on track.

As Complainant testified, it was not the first time

that he had experienced discrimination and he recognized the

familiar signs (T. 121-23, 169). The Louis Harris rejection,

However, was more direct because it was "easier to illustrate

that he should have been given the chance to do the job"(T. 171).

As Leventhal stated, it was clear that he was denied a job

because of his disability" (T. 170-71)

Complainant's friend, Cheryl Brock described with emotion

the "upsetting conversation' in which Jay Leventhal informed her

that he was not hired (T. 196). Brock testified that it was a

"difficult call" and that his "voice broke" as he explained that

he had been turned down (T. 194 ) . She could also tell that he

was angry because "this was something he could do well" (T. 195).

She further explained that "for a year or more after that he was

pessimistic about what was going to happen when he went for a

job" (T. 198).

In the instant case, the record viewed in its entirety

provides ample evidence that Complainant suffered humiliation,

outrage and mental anguish as a result of Respondent's

discriminatory conduct. Accordingly, he is entitled to $20,000 as

compensation for mental anguish.

This Commission is empowered to grant affirmative relief to

effectuate the purpose of this Chapter. Affirmative relief is an

appropriate remedy for redressing past and preventing future

discrimination. Negron v. Obstfeld Rec. Dec. and Order, NYCCHR

Compl. No. 232184 (June 28, 1989) modified (August 22, 1989).

Accordingly, this Commission directs Respondents to cease and

desist from engaging in discriminatory employment practices

against disabled job applicants. This tribunal further orders

Louis Harris to make the position of telephone interviewer

available to applicants who are blind or visually impaired. Louis

Harris must list the position of telephone interviewer with

public and private agencies in New York City that recruit and

place blind or visually impaired job applicants and place

advertisements in publications for the disabled.

For the next two years, Louis Harris must submit biannual

reports to the Law Enforcement Bureau. The reports shall describe

Respondent's efforts to recruit and place blind or visually

impaired job applicants and list the name of the applicants and

the action taken. Respondent shall specify the reason for

rejecting any applicant and describe the accommodations

considered.

ORDER

IT IS HEREBY ORDERED THAT:

1. The complaint against John Holden is dismissed.

2. Louis Harris cease and desist from engaging in

discriminatory employment practices against disabled applicants.

3. Louis Harris work with public and private agencies in New

York City to recruit visually impaired or blind applicants as

telephone interviewers and place advertisements for telephone

interviewers in publications for the disabled.

4. Louis Harris submit bi-annual reports in 1991 an 1992 to

the Law Enforcement Bureau describing its efforts to recruit and

place blind or visually impaired job applicants and listing the

name of the applicants and the action taken.

5. Louis Harris pay Complainant the sum of $26,840

plus interest on his back pay award calculated on the date of the

Commission's Final Order at the rate of nine percent per annum.

This award represents lost wages of $6,840 in lost wages and

$20,000 for compensatory damages for emotional distress.

Dated: May 23, 1991 SO ORDERED

Rosemarie Maldonado Acting Chief Administrative Law Judge Hearings Division