Reasonable Accommodations

When a shareholder asks for a reasonable accommodation – no matter what it's for – should a board grant it?

Not necessarily. Requests should be reviewed on a case-by-case basis, taking into account the needs and interests of the whole community. The first step for boards is to find out all the facts, explore options and potential solutions, and then discuss that with the shareholder.

What’s a real world example of this?

I had a client with severe ADHD and sleep disorders. The co-op had a rule that apartment alterations could not go longer than 90 days. Her difficulty in dealing with stress and pressure left her unable to meet this co-op rule. She produced proof of her disability, which was never in dispute, and very politely asked for relief. But rather than talk to her, the board simply said no.

And there were fines if the alterations went longer than 90 days?

Yes, $100 a day. The board also began taking measures to terminate her lease and evict her. The feeling was that if they made an exception for her and tweaked the rules, they’d have to do it for everyone.

What happened next?

We asked the board for a little bit more time. I figured we’d have a phone conversation and come up with a compromise. I was shocked when the board laid down the law and flatly refused to even have a conversation. So we filed a complaint with the New York State Division of Human Rights, but they didn’t really investigate and there was no hearing. They dismissed her petition pretty much on the spot.

Is that common?

It happens, but they’ll usually give it some attention so they can at least support their final decision. We went to the State Supreme Court and filed an Article 78, asking the judge to overturn the decision, which they did, saying that the shareholder had asked for a minor accommodation that the board should have discussed and considered. The co-op and the Human Rights Division appealed that to the Second Department, which affirmed the Supreme Court’s finding that there was more than enough here to warrant a hearing. We settled out of court the very same day.

So the co-op spent legal fees, your client spent legal fees, and at the end of the day, she got the time extension she wanted in the first place.

Part of our settlement agreement was that she could take as long as she needed to do any work. In addition, the board gave her a fairly substantial monetary award to cover some of her fees, and she got a written apology from them and their attorney, which was perhaps more important to her than anything else. The board also agreed to revamp their rules as to how they handle disability and discrimination claims.

What about the 90-day rule?

I believe that is still in place, though I'm not sure how it's being enforced at this point.

But going forward, if somebody comes up to the board saying they have a disability and need an accommodation, they will be more likely to listen?

I would hope that they have learned by now that there’s no need to circle the wagons and assume an adversarial role. It’s fairly easy, less costly and better for everyone to maintain a sense of harmony and work together to solve these problems.